International integrity vetting of public officials: guest blog

The judiciary can be one of the most challenging sectors to reform, but one emerging anti-corruption discipline shows promise. Introducing the concept of integrity vetting, this guest blog by Dr. Tilman Hoppe explores recent examples from Ukraine and Moldova. This timely piece of new research follows the recent one-year anniversary of the war in Ukraine and shows the fast pace of developments in international integrity vetting.

Dr. Tilman Hoppe is an anti-corruption expert who advised international vetting in Moldova and Ukraine and a former co-chair of the selection commission for the head of the anti-corruption agency in Ukraine (NACP). The author wishes to thank the input of – among others – Radu Cotici (Moldova), Viktor Kylymar (Ukraine) and Serhii Voloshyn (Ukraine), while the sole responsibility on the text lies with the author.

17 March 2023 –

Why integrity vetting?

Judges and other candidates for public office need to have integrity; they need to be honest and trustworthy. The more corrupt the public sector is, the more important integrity of officeholders becomes. Integrity measures for public office holders thus have a prominent place in the UN Convention against Corruption (UNCAC) (inter alia Articles 8, 11, and 52 para. 5). Even sitting judges can be vetted justifiably if the “scourge of corruption which, if not addressed, could completely destroy [the] judicial system” (European Court of Human Rights, referencing a statement by the Venice Commission).[1] In the past, integrity vetting of judicial candidates by the judiciary was barely more than a façade: candidates with the most outrageous integrity records would pass the checks.[2] As one Ukrainian stakeholder summarized: “’judges governed by judges’ […] safeguards corporatism but not independence”.[3]

Why international integrity vetting?

How to break this vicious cycle of corporatism? A vetting body whose members are selected by parliament, by the judiciary, by the government? As long as these state institutions are mistrusted and/or politicized, the members of the vetting body they elect are unlikely to enjoy the trust of the public. In light of this dilemma, Ukraine came up with an innovative mechanism: giving international experts a crucial role in selecting candidates for public office. International experts do not come from within the system and are not part of local politics and networks.[4] Thus, mechanisms where at least half of the experts are nominated by the international community, and where a candidate cannot pass the integrity check without the vote of these experts, should be called “international integrity vetting”. In contrast, vetting is in some cases conducted only by national members, or by international members with only an advisory or monitoring role, such as in Albania.[5]

Ukraine involved such international experts when selecting members or heads for the High Anti-Corruption Court starting in 2018, for the (preventive) National-Anti-Corruption Agency (NACP) in 2019, for two bodies of judicial self-governance (High Judicial Council and High Qualification Commission of Judges) in 2019, for the Specialized Anti-Corruption Prosecutor’s Office (SAPO) in 2021, and for the (investigative) National-Anti-Corruption Bureau (NABU) in 2022. Based on these “enormously successful[6] experiences, Moldova copied this international vetting mechanism for selecting candidates to its bodies of judicial self-administration (2022).[7] Further international vetting mechanisms are planned for the vetting of all judges and prosecutors in Moldova (2023),[8] and for candidates to the Constitutional Court in Ukraine (2023).[9]

What are the key tools?

Based on specific provisions granting access to state and private data, the vetting body collects and reviews all information available on the vetting candidates, including all past and current asset declarations.[10] If the analysis of data points to possible integrity violations, they ask candidates for clarifications and additional proof through written questions. Candidates have the right to a public hearing. Once the vetting body has established reasonable doubts on a candidate’s integrity, the burden of proof shifts to him/her. For example, the savings and income of a public official as established by the vetting body might not explain the purchase of an apartment in London. If he/she fails to disperse the established doubts, or simply remains silent, he/she will not be appointed to the position, or, in case of sitting public officials, will be dismissed. The vetting body may also notify law enforcement authorities in case they detect evidence of a crime. In some instances, the legislator not only mandates the vetting body with reviewing the integrity of candidates but also to assess their professional quality.[11] All decisions of vetting bodies are subject to judicial appeal.

Is international vetting in line with human rights?

Yes, it is recognized and supported as a valid mechanism by numerous opinions of the Venice Commission[12] as well as one decision of the European Court of Human Rights (ECtHR), also referencing the UNCAC.[13] Three findings of the ECtHR are key in its decision on vetting:

1. The right to privacy (Art. 8) does not even apply to checking inexplicable wealth of a public official, as such checks only “ensure public trust in […] [the official’s] integrity” (§ 362).

2. Based on “preliminary findings” of inexplicable wealth, the burden of proof may shift to the official “in order to prove the contrary” (§ 347). If the official fails to prove the contrary, this suffices to ban the official from public office for life. However, reversing the burden of proof is only possible for dismissing the official, not “in any criminal proceedings” (§ 243).

3. A financial check, as grounds for a dismissal, can go back decades: “[G]given that personal or family assets are normally accumulated over the course of working life, placing strict temporal limits for the evaluation of assets would greatly restrict and impinge on the authorities’ ability to evaluate the lawfulness of the total assets acquired […]. This is all the more true in the Albanian context where prior verification of declarations of assets had not been particularly effective” (§§ 349, 351).

Can I do (international) integrity vetting any time?

Vetting integrity of candidates for public office is not only permissible anytime, but recommended,[14] with the intensity of vetting depending on the integrity risks in each country. Vetting of sitting public officials, in particular judges, is acceptable only under extraordinary circumstances: “This [vetting] process was introduced in response to the urgent need, as assessed by the national legislature, to combat widespread levels of corruption in the justice system.”[15] Vetting of sitting judges is “an extraordinary and strictly temporary measure”.[16] However, the Venice Commission considered vetting, for example, “not only justified but necessary for Albania to protect itself from the scourge of corruption which, if not addressed, could completely destroy [the] judicial system”.[17]

What role does civil society play?

The role of civil society is essential. All vetting exercises benefited greatly from NGOs, journalists and citizens providing information questioning or contradicting the integrity as alleged by the vetted candidates.[18] For example, in Ukraine, the Public Integrity Council (PIC) consisting of experts selected by civil society organizations has been involved in the selection of judges for the Supreme Court and the qualification evaluation of nearly 3,000 judges.[19] Members mostly contribute to this huge effort on a pro-bono basis.[20] In other cases, NGOs enjoy some financial support of donors for compiling integrity profiles of vetting candidates.[21] In some cases, representatives of civil society were (national) members of the vetting bodies themselves. In the case of the vetting body for selecting the head of the Ukrainian anti-corruption agency NACP, 3 out of 6 members were from civil society: the chair of the Anti-Corruption Action Center, the legal head of Transparency International Ukraine, and the coordinator of the Media Initiative for Human Rights.[22] This aside, civil society conducts its watchdog role, that is, over the vetting process.[23]

What impact does it have?

For the first time in the history of their country, in Moldova as well as in Ukraine, candidates for judicial office and for other independent posts were thoroughly checked against uncompromised standards. A high percentage of candidates were filtered out, who otherwise would have passed if business had continued as did for the last two decades. For example, all candidates for Ukraine’s new High Anti-Corruption Court underwent integrity checks. The international vetting body vetoed 42 candidates based on concerns of their financial or professional integrity.[24] Until today, the HACC is regarded by many as the only clean court in Ukraine and NGOs command its success.[25] Often, notorious public officials choose to resign rather to have their inexplicable wealth scrutinized in an integrity review.[26] All in all, international vetting is regarded by donors as a “best practice that continues inspiring […] in the region and beyond”[27], and as a “beacon for the entire region”[28] by civil society stakeholders – as long as international experts have a crucial role.[29]

How long does it take?

International integrity vetting does not come for free – in terms of money, time, and human resources (members and staff). A detailed comparison of three examples of international vetting exercises in Moldova and Ukraine shows the stark differences possible in terms of duration:

PrevetCom MD:            Pre-Vetting Commission under Law 26/2022 (for members of the Superior Council of Magistrates – SCM, and the Superior Council of Prosecutors – SPC, Moldova) 

PCIE UA:                       Public Council of International Experts (for judges of the High-Anticorruption Court, Ukraine)

NACP UA:                      Selection Commission (for the new head of the National Anticorruption Agency, Ukraine)

It goes without saying that each vetting exercise will have its individual features and challenges, whether in Moldova, Ukraine, or somewhere else. For example, while the PCIE UA did the first vetting of such kind internationally, the NACP UA vetting was able to benefit from the PCIE’s experience, but also had the additional task of assessing professional competence. Any statistical comparison is thus a stark simplification of the “full story” behind each vetting exercise.

It is interesting to note that the Pre-Vetting Commission in Moldova had until now the lowest number of candidates and hearings, the highest number of staff, but took by far the longest, with the process ongoing until June 2023. By comparison, the PCIE in Ukraine had the most candidates and hearings, but needed only little time. This shows that international integrity vetting is a complex exercise depending on a variety of debatable – and not always predictable – factors, such as:

  • How advanced are reforms in general and how genuine is the political will for reforms?
  • How well does the legal framework support the work of the commission?
  • Did the asset declaration system provide many loopholes in the past, calling now for additional efforts in exposing past integrity violations?
  • Is citizen data well documented in the country and electronically available to efficiently feed into the background checks?
  • How much capacity does civil society have readily available in supporting the process, and are they free to operate in their country?
  • How ruse and persistent are candidates in hiding their integrity shortcomings, and how litigious are they?
  • How fast can suitable members and staff be extracted from their other obligations and become operationally available?
  • How much experience in background checks do commission members and staff bring along?
  • Does the actual composition of members necessitate a lot of discussions and negotiations, or does it allow the vetting body to move forward “executive-style” based on an overarching consensus?
  • Are members available full-time or do they have other engagements while serving on the commission?
  • What priorities does the commission set and how deep does the law require it to dig for each candidate?

What are the risks?

No anti-corruption tool comes without risks. For international integrity vetting, the risks are:

  • where there is no minimum of rule of law, and national as well as international members of a vetting body would have to fear for their life.
  • governments might see a chance in international integrity vetting to rid themselves of an unwanted judiciary – the tool would probably not enjoy trust in highly disputed justice reforms as in current Hungary, Israel, or Poland, even if members of the vetting body were really independent.

All of these risks need to be taken seriously, as should any risk. However, there is no anti-corruption tool which does not have risks: Could a newly introduced offence of bribery be abused to trump-up charges against opposition members? Yes. Could legislation on conflict of interest be used to harass public officials with complicated inspections? Yes. Is this risk a reason to abstain from criminalizing bribery or regulating conflict of interest? Probably not.

This aside, what are the alternatives to international integrity vetting, once corruption has a firm grip on a judiciary? Hoping that all dishonest members of the judiciary will retire in 20 years, without breeding more corruption? Or that study visits to an anticorruption court abroad or ethics trainings will change their minds and hearts? That by some miracle, these judges will be caught in flagrant acts of corruption, brought to justice, and convicted by their peers (including the dishonest ones), and in all instances?

Conclusion

International integrity vetting is one of the youngest anti-corruption disciplines and research on it is still in its infancy. At the same time, it is one of the fastest growing sectors: for more than two decades now, international donors have become increasingly frustrated with often useless window-dressing reforms. They are thus eager to invest in an internationally recognized tool,[30] finally one able to produce tangible impact, including in one of the most difficult sectors to reform – a corrupt judicial sector with “independent” judges protecting each other. But donors, policymakers, and potential members should not underestimate how long the process might take. Vetting commissions are not one of the usual short-term activities with disposable experts and room for trial-and-error, but need independent members meant to stay the full course of a possibly years-long vetting exercise. Civil society organizations usually welcome this opportunity of ridding their country of the leeches disguised in black robes, and provide the honest, qualified judges a chance to earn back public trust in the judiciary, and the respect they deserve.

Dr. Tilman Hoppe is an anti-corruption expert based in Berlin, who advised international vetting in Moldova and Ukraine. He is a former co-chair of the selection commission for the head of the anti-corruption agency in Ukraine (NACP). For more information, please contact the author at info [at] tilman-hoppe.de.


[1] Xhoxhaj v. Albania, App. no. 15227/19 at § 362 (9 February 2021), https://hudoc.echr.coe.int/fre?i=001-208053.

[2] Tilman Hoppe, Money Talks (5 March 2021), https://verfassungsblog.de/money-talks/: “Public officials would claim that their fortune came from producing honey from their own beehives; from picking ‘strawberries in Germany’; from winning in certain casinos (where, for strange reasons, mostly public officials had lucky streaks); or from ‘foreign exchange  deals  as  a  student’. They would insist that a used, but shiny, Mercedes S320 had cost only 700 Euro (judges were also amazingly skilled mechanics). They would produce bizarre, freestyle certificates, stamped by the tax office, stating – without any explanation whatsoever – that all wealth of the judge was matched by legal income, while there would be no tax records on their mysterious revenue.”

[3] Halyna Chyzhyk, What the EU can learn from the Ukrainian experience with judicial reform (21 December 2022), https://verfassungsblog.de/judicial-reform-in-times-of-war/.

[4] Hooper/Hoppe/Matos, To Trust is to Choose (23 April 2021), https://verfassungsblog.de/to-trust-is-to-choose/.

[5] Endri Mykaj, Judicial vetting: a key policy tool to fight corruption in Albania (11 November 2020) https://www.u4.no/blog/judicial-vetting. For an overview of vetting exercises without international experts see Venice Commission, Kosovo, Concept Paper on the Development of the Vetting Process in the Justice System, CDL-REF(2022)005, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-REF(2022)005-e.

[6] Statement by the U.S. Embassy and the Delegation of the European Union, On the Importance of Independent Selection Commissions (16 June 2021), https://ua.usembassy.gov/on-the-importance-of-independent-selection-commissions/.

[7] MoldPres, Term of work Pre-vetting Commission extended in Moldova (1 December 2022), https://www.moldpres.md/en/news/2022/12/01/22009218; https://vetting.md/en/.

[8] Venice Commission, CDL-AD(2022)049, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2022)049-e; Vladislav Gribincea, A cool analysis and explanation of the reform of the Supreme Court of Justice (undated), https://crjm.org/en/analysis-explanation-reform-supreme-court-of-justice/; ZDG, Experts’ opinions on justice in Moldova in 2023 (16 January 2023), https://www.zdg.md/en/?p=10471.

[9] Venice Commission, CDL-AD(2022)054, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2022)054-e.

[10] For a flow chart of a vetting process see TI Ukraine, Selection Board Will Select the Head of the NACP by the End of the Year (8 November 2019), https://ti-ukraine.org/en/news/selection-board-will-select-the-head-of-the-nacp-by-the-end-of-the-year/.

[11] See note 12.

[12] Hooper/Hoppe/Matos (note 6); see also note 11. Venice Commission, Compilation of Venice Commission Opinions and Reports Concerning Vetting of Judges and Prosecutors (CDL-PI(2022)051), https://www.venice.coe.int/webforms/documents/?pdf=CDL-PI(2022)051-e.

[13] Xhoxhaj v. Albania (note 3), § 212; maybe unsurprisingly, the (notorious) Russian judge in the Chamber deciding the case disagreed with this finding and issued a minority vote.

[14] Venice Commission, Rule of Law Checklist (2016), F 1 a iv (“Are certain categories of public officials subject […] to further requirements at the beginning […] e.g. specific integrity requirements for appointment […]?”), see also E 1 a iv and E 1 d ix, https://www.venice.coe.int/images/SITE%20IMAGES/Publications/Rule_of_Law_Check_List.pdf.  

[15] ECtHR, Xhoxhaj v. Albania (note 3), § 299.

[16] CDL-AD (2016)009, para 54, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2016)009-e.

[17] Ibid, para 52.

[18] TI Ukraine, Ten More Candidates for HACC Eliminated (21 January 2019), https://ti-ukraine.org/en/news/ten-more-candidates-for-hacc-eliminated/; TI Ukraine, TI Ukraine Has Analyzed Applicants for the NACP (3 December 2019), https://ti-ukraine.org/en/news/ti-ukraine-has-analyzed-applicants-for-the-nacp/.

[19] Halyna Chyzhyk (note 5).

[20] USAID/Pim Albers, Report on the Public Integrity Council and the Results Applied by the High Qualifications Commission of Judges of Ukraine (2017), p. 7, https://pdf.usaid.gov/pdf_docs/PA00N5BN.pdf.

[21] Halyna Chyzhyk (note 5); IPRE, Project: Ensuring an honest, efficient and independent justice system in the Republic of Moldova (1 April 2022), https://ipre.md/2022/04/01/proiectul-asigurarea-unui-sistem-de-justitie-integru-eficient-si-independent-in-republica-moldova/?lang=en.

[22] https://www.radiosvoboda.org/a/news-nazk-kabmin/30246108.html (in Ukrainian).

[23] See for example: TI and other NGOs, We urge international partners not to delegate members of AGE and MPs to immediately change law on CCU (20 December 2022), https://ti-ukraine.org/en/news/we-urge-international-partners-not-to-delegate-members-of-age-and-mps-to-immediately-change-law-on-ccu/; IPN, Vladislav Gribincea: Sometimes wrong decisions are made in the judiciary, but with good intentions (16 August 2022): “The pre-vetting procedure is being protracted […], says Vladislav Gribincea, president of the Legal Resources Center. […] According to Gribincea, the entity, which started its work back in April, seems to be in no hurry to deliver a final evaluation. […] I have the impression that this pre-vetting commission works in European style, that is, taking its time”, https://www.ipn.md/en/vladislav-gribincea-sometimes-wrong-decisions-are-made-in-the-judiciary-7978_1091703.html.

[24] Venice Commission, CDL-AD(2017)020, Follow-up, Measures taken by the State, https://www.venice.coe.int/WebForms/followup/?index=1; Ukraine Crisis Media Centre, High Anti-Corruption Court starts work in Ukraine: how will it operate? (6 September 2019), https://uacrisis.org/en/73207-high-anti-corruption-court. For an update see: Halyna Chyzhyk (note 5); William D. Meyer, Under Assault: A Status Report on the Ukrainian Justice System in Wartime (June 2022), p. 23, http://ilacnet.org/wp-content/uploads/2022/07/ILAC_-Ukraine-Status-Report-on-Justice-System-July-2022.pdf). For Moldova see for example RM, Five judges did not pass the evaluation of the Pre-Vetting Commission (4 January 2023), https://radiomoldova.md/p/2879/five-judges-did-not-pass-the-evaluation-of-the-pre-vetting-commission.

[25] TI Ukraine, 2 Years of HACC. What Are the Results? (6 September 2021), https://ti-ukraine.org/en/news/2-years-of-hacc-what-are-the-results/.

[26] See for example Ukraine: Censor.net, “Afraid of interviews with internationals” – Anti-Corruption Action Center about the resignation of 10 members of the High Council of Justice (22 February 2022): “So, they fled in disgrace”, https://censor.net/ua/n3318044 (in Ukrainian).

[27] Statement by the U.S. Embassy and the Delegation of the European Union (note 8).

[28] Halyna Chyzhyk/Tetiana Shevchuk, Ukrainian judicial reform may become a beacon for the entire region (13 January 2022), https://antac.org.ua/en/news/ukrainian-judicial-reform-may-become-a-beacon-for-the-entire-region/.

[29] TI and other NGOs (note 25).

[30] Venice Commission (note 14).

 

More information

An explanation of the data presented above is detailed in the below table. 

Country/commission

PreVetting Moldova

PCIE Ukraine

NACP Ukraine

Task

 

 

 

–  Targeted position

Members SCM/SCP

Judges AC-Court

Head of NACP

–  Branch

Judicial self-admin.

Judiciary

AC-Agency

–  Integrity vetting

Yes

Yes

Yes

–  Professional competency

No

No

Yes

Members

6

6

6

–  International

3

6

3

–  National

3

3

Adoption of law

10.03.2022

07.06.2018

02.10.2019

Appointment of members

04.04.2022

06.11.2018

28.10.2019

List of candidates

06.04.2022

28.12.2018

19.11.2019

Adoption of bylaws

[i]02.05.2022

04.01.2019

08.11.2019

Finishing of task

[ii]31.12.2022

[iii]28.01.2019

18.12.2019

Duration (days)[iv]

271[v]

81

41

Total of candidates

27[vi]

113

30

Additional tests (all candid.)

No

No

Psychol. + Intellig.

Candidate hearings

21

49

8

Reasoned vetting decisions

8[vii]

42[viii]

1

Secretariat

18,5[ix]

11,5[x]

7.5[xi]

–  Head/Coordinator

2

1

1

–  Analysts

9

6

3.2

–  Other (IT, PR, etc.)

5.5

3

2.8

–  Consultant support

1

0,5

0.25

–  Other (donor staff)

1

1

0.25

Ext. service (testing, media)

No

No

Yes

Estim. man-days/candidate

126[xii]

19,4[xiii]

12[xiv]

–  Members

42

5,8

4,1

–  Secretariat

83,7

13,6

7,9

 

[i]    Not counting the adoption of the form for the “5-year asset declaration”, published by the Commission in July 2022.

[ii]   First part (27) of candidates for the SCM; 12 further candidates to the SCM and candidates for the SCP not counted, as their hearings/vetting will only start in 2023. One candidate for the SCM withdrew before the vetting started.

[iii]   The last interview took place on 28 January 2019 and on the same day the decision was made and announced. The drafting of the decision was done by the HQCJ, a judicial self-governance body, using the input by the PCIE. The HQCJ took few more weeks to finalize the text of the decisions (with some delays caused by HQCJ members).

[iv]   Counted from appointment to last/final decision by the Commission; not counting (possible) appeals in court.

[v]    Counted until end of 2022, the date by which the vetting should have been finished according to Law 26/2022 (as unamended).

[vi]   See above note ii.

[vii] By end of December 2022, 3 decisions were published, assessing the integrity of candidates who passed the vetting. 5 decisions were published on 4 January 2023, assessing candidates who failed the vetting. Decisions on candidates only withdrawing from the competition are not counted, as they merely confirm the formality of their withdrawal.

[viii] See above note iii. The PCIE vetoed 42 candidates (negative vetting).

[ix]   As of September 2022; hirings gradually June-August; 4 analysts hired in June; core team of 1 donor staff and 2 consultants functioned as Secretariat until June.

[x]    Numbers as per former Head of Secretariat.

[xi]   Numbers as per final report for the EU by the NACP-Selection-Commission.

[xii] Calculated as follows: Members – 21 days/month on average for April-December (between 15 and 30 days/month depending on workload) – total 1,134 days; Secretariat staff on average 21-days/month on average for June-December with increasing staff number; PR: 10 days/month); Consultants – total average of 10 days/month for March-December) – total 3,398 days.

[xiii] Calculated as follows: Members – 30 days/month for January 2019 (180), plus 20 days each for November-December 2018 and February-March 2019 (480 days) – total 660 days; Secretariat staff average 22 days/month on average for October-March 2019 (1,518); consultants: 50 days; total 2,208 days.

[xiv] Calculated as follows: 5 Members – 17 days each for total period (most members worked part-time and continued in their main occupation, such as NGO-work); Chair – 38 days for total period; Secretariat staff: total duration of 41 days minus weekends = 29 days; total 340 days.