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Iván Münnich:
Analysis of Corruptional Crimes
Subjects related to the notion of corruption are the following:
Presuppositions
While conducting these studies, the following commonly accepted
scientific facts were taken into account:
- the notion of corruption, what it means to the public
and how it is embedded in society keeps changing as time
passes within a particular culture, and naturally these
changes are followed by changes in the legal system, namely
within the field of terminology, judicial practice, sanctions
and terms and their reasons adduced,
- corruption, as the negative segment of social, economic,
and political life, has existed since time immemorial as
an integral part of various cultures and constitutional
forms,
- corruption is not an exclusively Hungarian phenomenon,
- in the world of globalization, corruption knows no borders,
it has assumed international dimensions and presumes international
relations,
- the efficiency of anti-corruption campaigns is usually
rather poor, and it is only international cooperation -
which is becoming a common practice today - that has any
potential for bringing about a positive change,
- working out the details of fighting corruption in Hungary
is still ahead of us, it is jurisdiction that is at the
most advanced stage at the moment.
The aims of the studies
These studies aim to contribute to the diagnosis of the situation
in Hungary and they claim to be as specific and concrete as
possible. They investigate the phenomenon with the aid of
techniques which can provide valuable contribution to the
national and international program of battling corruption.
We are aware of the limitations of interpreting the results
of surveys conducted on large representative samples, as well
as the difficulties of the inquiry process itself, the public's
reluctance to answer questions concerning this negative phenomenon,
the almost impossible task of tracking down the cynical alliance
resulting from the necessary community of interest of the
corrupter and the corrupted, and also the self-defensive reactions
of the institutions concerned etc.
The analyses of the phenomena we examined hold out the promise
of exactitude.
a.) the
case studies carefully follow the process as the 'mills
of jurisdiction grind slowly'. It is obvious that the registered
phenomena are quite common to all practicing experts, as they
deal with such cases on a daily basis. It has been a serious
problem up until now that no interest has been shown in their
experience, nobody has asked them for their opinion, and the
so called scientific focus has not been extended to consulting
these experienced people. In our case studies, among other
means, the scientific approach meant that our researchers
regarded the process as a whole, registering the divergence
of procedures - occasionally followed in parallel with but
independently of each other - , the uncertainty of the different
directions of investigation, the difficulties of the legal
procedure because of the unclear legal categories, etc.
b.) our
overview of European jurisdiction was obviously necessiated
by the demand for finding our 'position' within the development
of international aspects of corruption (globalization, jurisdiction
etc) and within the efforts concerning the harmonization of
laws, as well as the need to indicate the most important stages
of our participation in order to identify the unavoidable
tasks we need to fulfil in the course of our accession to
the European Union. The study makes it clear that the aspects
of the fight against corruption that lay within the competence
of jurisdiction constitute only one segment of of the process
of joining the European legal system.
We would like to highlight a few of them:
- we have to join the 'community achievements', namely the
system of rights and obligations that bind the European
states together,
- without any consideration, we must perform the ratification
of these documents, since the cases stated are results of
unanimous decisions,
- in a mandatory fashion, we will join the publicized documents
related to the following issues: fraud, corruption, organised
crime, complicity etc...
- naturally, EU documents affect national legislation too,
thus within a time period of one year, a special unit for
fighting fraud will have to be formed, the efficiency of
jurisdiction will have to be improved, the combat of organised
crime and corruption and also the EU's contribution to the
protection of our financial interests will have to be promoted.
- criminal and other legal responsibilities of legal entities
will need to be settled.
We should also be aware of the fact that the EU passes laws
in the field of criminal law which are directly legally binding
for us as well.
c.) For the diagnosis of the presence of corruption, statistics
from courts, the police and attorneys form a fundamental source
of information. We have been well aware that the number of
crimes connected to corruption are insignificant among all
crimes that amount to half a million. All experts agree that
official statistics do not reflect reality, and nobody knows
the real magnitude of corruption. We are unable to determine
its precise volume by using statistics, but valuable concepts
can be formulated by analysing the available data, which may
greatly contribute to the understanding and treatment of this
phenomenon.
It is our important conclusion that since corruption is an
integral part of our social and economic life, and at the
same time it is a fundamental component of the world of criminality,
it can only be interpreted in connection with other crime
categories, for example that its occurrence in everyday life
or in the statistically registrable 'reality' is insignificant
compared to acts of violence. We can understand its dynamism,
transformation and history by comparing it to the occurence
of other criminal offences.
It is also a noteworthy concept that efforts to decrease
corruption cannot possibly be effective on their own. We need
systematic programs that take care of the mental hygiene of
society, and which have long-term effects without being campaign-like
or restricted to fire-fighting, and which are not connected
to political election pacts either.
We must draw attention to a few interesting tendencies:
- the number of criminal offences connected to the clean
morals of public life fluctuates significantly, which may
be related to the activity of the police or certain events
taking place in society.
- the number of crimes committed has increased in general,
but in the case of corruption fluctuation has been experienced,
but the number never differs significantly from 800 cases
a year,
- unlike other types of crimes, the rate of corruption has
not increased after the change of regime!
- corruption is surely growing, but this is difficult for
statistics to follow, whereas it is evident that new forms
of committing this crime have emerged,
- crimes of corruption can certainly be traced back to the
social attitude inherited from the time period prior to
the change of regime, which on the one hand concerns the
public way of thinking, and on the other hand reflects the
special traditions of our institutions,
- after the change of regime, privatization, lack of control,
compensation etc. created opportunities for the spread of
corruption.
We are no longer able to determine whether the chiefs of
local governments are being lavish with the assets assigned
to them, or they are corrupt, perhaps ingenuous, or just ignorant!
d.) One measuring device of the presence of corruption is
press publicity. Its importance is emphasized
by the fact that mass media does not only inform, but also
has the power to influence public opinion.
Basically, our study is based on written material published
in the press. As indicated by the cited statistics, this topic
is fairly common, and a great number of articles have been
published that deal with this type of criminality, its character
and people's behaviour, as well as the measures to be taken
by the government. Fortunately, corruption is always regarded
as an intolerable negative phenomenon. According to the press,
people demand strict punishment and direct measures.
The public supports the intensification of criminal deterrence
as well as the enforcement of responsibility.
There have been publications and interviews by experts, which
discussed the difficulty of defining the notion of corruption.
These discussions cause dissatisfaction among readers, as
they are interpreted as wittering and malarkey while the criminal
offence is not followed by the deserved punishment.
The press is unable to handle the issue of slush-funds, it
simply acknowledges the complaints about its existence.
The press closely reflects the demands of society concerning
the issue of corruption:
E.g.
- the activities of the Board of Referees of Public Procurement,
- the cooperation agreement of the representatives of the
Hungarian Association of Transparency International on the
screening of the Mayor's Office in Budapest (association:
Népszava City Hall corruption).
- The Clean Hands for Hungary Movement,
- We have been informed about the optimistic manifestations
of the national government.
- The study made by the Financial Research Ltd. has also
become public, listing hig-risk institutions (e.g. APV Rt
(State Privatization and Holding Company), banks, political
parties etc.).
- The state of corruption among armed law enforcement organizations
was covered as a special issue.
- Etc.
e.) The bibliography of corruption is
an objective measuring device of the magnitude and nature
of this phenomenon. Scientists are often referred to as the
key opinion-makers in society. The emergence of the issue
within scientific circles indicates the magnitude and importance
of the problem. The involvement of professional thinkers shows
the presence of a serious social problem. A multitude of professional
studies have been published, and conferences are being organized.
These are marked signs of our society's self-healing reactions.
The abbreviated analyses of the studies serve as a guide to
interested scientists, but at the same time, because of their
enjoyable style, they can also be of much use to non-professional
readers, especially to those who seek an 'ideological' background
for planning practical action.
Our professional considerations
On the nature of corruption: corruption always comes
into existence between two people, thus in this sense it belongs
to the real of social psychology.
The aim and idea of the fight against corruption:
- to create healthy conditions of mental hygiene in society,
which support legal regulations and measures and which stimulate
the majority of the public to take part in these efforts
so that the situation could be improved.
- to form a public opinion which condemns corruption and
refuses the acquittal of the offender.
The definition of corruption
Operatively: decision-making competence put up for
sale.
On the scientific level:
- the abuse of official power with an aim to gain private
profit.
- in a narrower sense, it means the abuse of the assets
of the consignor (the state or local government) by the
officials of the national or local government.
E.g. permits,
licenses, certificates,
financial benefits,
state orders.
(Kaufman and Siegelbaum)
- if a key personality of economic life illegally obtains
money or payment in kind
- the corrupt person acts in favour of another individual
or organisation, while acting against the interest
of the person or organisation he officially represents!
- in other words, this person possesses discretionary, autonomous,
uncontrolled and real decision-making power.
(Susan Rose-Ackerman)
This definition can be extended to any situation in which
the owner-employee relation exists, since the employee might
deceive his employer. E.g.: lawyer-client, company owner-manager,
broker-investor.
Note: public procurement is a distinguished field
of corruption, but every aspect of life where there is government
intervention has a potential for it, e.g. taxation, military
drafting etc..
If people assigned to the application of laws in such cases
possess too much liberty, namely if their 'benevolence' is
not limited, they can easily become corruptible.
- Bureaucrats' opportunities for corruption mainly result
from the inaccuracies of regulations, the loophole , the
exceptions and the 'special cases', to which, oddly enough,
laws do not seem to apply.
Corruption in surveys investigating public opinion, and
corruption in the legal system
Legal definition:
- as a case of corruption, the following offences are usually
listed as a crime against the clean morals of public life:
bribery officials,
economic bribery,
influence peddling.
Public-opinion researchers imply that the following
phenomena are closely related to corruption:
- In an investigation conducted by Mária Vásárhelyi (Sociological
Review, April, 1998)
- tips,
- gratuity to medical personell,
- favouritism,
- connections,
- donation,
- nepotism.
- In the Gallup survey, the following questions presume
that a person's behaviour is connected to corruption:
- tipping,
- giving gratuity to the family doctor,
- an official committing a minor criminal offence in
order to favour a family member, a relative or a friend,
- an official accepting a small present from his client,
- an official seeing about a case only on receiving
gratuity,
- the contract of the national or local government necessary
for employment being determined by personal contacts,
- having to bribe the decision-making official in order
to get the job one applies for,
- the necessity of finding a benefactor in order to
get something done,
- an official or politician overlooking or tolerating
the activity of organised criminals in exchange for
some compensation.
About the ideological background of our interpretations
which are also reinforced by the findings of our case studies.
Vilfredo Pareto for example, states that a person's efforts
can be paid off in two different ways:
they can be aimed at the production of commercial goods, but
at the same time they can be directed toward the acquisition
of the products produced by others. Therefore, violence, aggressiveness,
illegal activity, intimidation and blackmail etc. can be seen
as a form of economic activity.
Theft, burglary, blackmail, embezzlement and corruption
are invariably regarded as crimes everywhere, and any society
will fiercely and desperately try to protect itself from these
phenomena. The problem of the individual lies in the fact
that the victim's loss is much greater than the profit of
the offender.
For example, the receiver of stolen goods purchases these
items much cheaper. Furthermore, the government also loses
in revenues as stolen goods cannot be taxed.
In a situation where goods produced with hard work can be
taken away anytime, the desire for keeping the rules of legality
will decrease.
In order to avoid this, it is in best interest of the state
to combat the spread of crime.
Paradoxically, the enactment of laws aimed at decreasing
criminality isin the interest of criminals as well, because
if 'anyone' can commit crimes that are left unpunished, even
a professional criminal has to be on the alert so that he
can be sure the money he has stolen will not get taken from
him by another interest group. Stricter regulations are also
in the interest of professional criminals, because they will
speed up the process of the differentiation of the underworld.
The volume of the expected punishment may deter a certain
portion of potential criminals.
According to the new concept of economic psychology, there
is nothing peculiar about violence and fraudulent evasion
of laws, as they are clearly manifested in the rationality
of economic life. This means that the rational choices of
normal economic life are also applicable in the case of antisocial
activities.
For example, one can gain great profit by breaking the law,
but at the same time one can lose if they get caught.
Everyone looks at the pros and cons when a choice has to
be made, and we come to a decision by comparing the risks
and the expected profits!
The criminal has a choice, but his decision is made in a
certain social environment, which may be favourable to certain
types of crimes, for example corruption in a specific situation.
It may even disregard all moral responsibilities.
In the time period of the change of regime, in the world
of loosened legal and moral responsibilities, it was unvarnished
financial considerations that played the most significant
role in the choice of legal or illegitimate means.
It is also clear that more and more people try to emulate
successful lifestyle strategies.
For example, if people realize that financial goods can be
obtained as a result of the corruptness of officials, more
and more of them will attempt bribery.
Experience suggests that a portion of Eastern-European people,
especially those working in the economic and political field,
lead a double life.
On the one hand, they have a legal occupation, but besides
that, they have illegal incomes, as well. One of these provides
stability in their lives, while the other one produces excess
profit for them. Leaders of the underworld may also lead such
a divided life.
For example, they legalize their illegally acquired income
with their legal employment.
There are also speculations concerning the volume and
nature of punishment. The fight against crime costs a
huge amount of money (remuneration of the staff, technical
equipment of law enforcement personell). It is an acceptable
aspiration that the punishment should stop the profit that
can be obtained by malfeasance. However, if there is no money,
the number of arrests will decrease (for example, fewer policemen
can be employed in the investigation) thus crime may become
uncontrollable.
According to national public opinion, punishment is not strict
enough to sufficiently deter anti-social people. They say
that it is only a sanction of a volume which is several times
larger than the potential profit that could deter these people
from committing crimes. This way fewer people would take the
risk of getting caught. Of course, professionals would not
hesitate to invest more money into this 'business' for example
into hiring more expensive lawyers.
Certain observations concerning corruption suggest that the
maximum punishment that can be inflicted for corruption determines
the volume of slush-funds.
Officials in a corruptive position might ponder on the following:
if they repeat the corrupt activity, they will receive a more
severe punishment, so they will only accept gratuities in
a few cases,
but when they do, they will ask for a large sum, but if the
punishment depends on the amount of money accepted as a gratuity,
he will prefer smaller sums, but a lot more often.
It has also become clear that corruption bears even more
corruption.
For example, if someone gets a job by paying off somebody,
he will attempt to regain this 'investment' in a similar -
corrupt - way.
We have also noticed that there is a competition among officials
for positions which hold the possibility of gaining illegal
money.
In addition to officials, there is also competition among
'customers', especially in cases in which the state is excluded
from the cash flow.
For example, there are cases in which the official has the
power of decision-making, and the financial compensation is
not payable to the 'government'. A typical example of such
cases is the issuing of a special licence at a reduced price.
Naturally, that will make the competition unrealistic, and
participants will be encouraged to utilize means of corruption
instead of rationalising the costs of production.
The fight against this phenomenon is rather difficult because
of the coincidence of interest of the corruptor and the corrupted,
as well as the fact that its detection requires special 'techniques'.
Many economists believe that since the liberalisation of the
market narrows the field for corruption, the number of actual
cases of corruption may decrease. The growing number of regulations
increases bureaucracy which operates in a more and more entangled
and uncontrollable manner, loopholes and unregulated areas
emerge, thus people who are inclined to be corruptible by
personality anyway will have a greater chance for so called
individual judgement.
These closing remarks indicate the framework and topic areas
of future research. In its own interest, the National Institute
for Criminology follows this route by conducting further research
for which it seeks partners.
(National Institution of Criminology, 2000)
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