Corruption, anti-corruption and human rights: the case of Poland’s integrity system
Corruption, anti-corruption and human rights: the case of Poland's integrity system
Anna Krajewska 0 1
Grzegorz Makowski 0 1
0 Collegium Civitas , Stefan Batory Foundation, Warsaw , Poland
1 University of Warsaw , Warsaw , Poland
Serious tensions can arise in a country's integrity system when anticorruption policy also poses a threat to fundamental values and standards under which a democratic state operates, in particular human and civil rights. This article examines these tensions using the case of Poland, where the risk arises, in particular, in situations of 'moral panic', where intense public and political discourse around a specific issue with a strong sense of threat to society also generates expectations that policy and decision makers will quickly solve the problem. With the Polish National Integrity System (NIS) assessment as a background, we examine the need and the scope for developing research and evaluation instruments which help reduce the risk that anticorruption initiatives will undermine the basis of a democratic state, with recommendations in this regard.
Corruption, no matter how it is defined see [
], raises concerns about human and civil
rights. Even when not a crime, acts of corruption still violate the rule of law in a broader
sense. Yet the impact of corruption on civil and human rights only started to be
analyzed in depth relatively recently – for example, in the 2009 report of the
International Council on Human Rights Policy emphasising the negative consequences of
corruption on many different public goods and services (such as access to
administrative decisions, judiciary, politics, health care, education), crucial for the realization of
human and civil rights [
However, there is another aspect of the relationship between corruption, and human
and civil rights, which has been analyzed even less frequently. Can anti-corruption
policies, if designed and implemented improperly, be just as harmful to human and civil
rights as corruption itself? In this article we use the case of Poland to show that this risk
is real, and how important it has become for research and evaluation on anti-corruption
policies to include a specific focus on how the risk is being managed or mitigated. We
first introduce the general problem of the potential for serious tension between
anticorruption policies and human and civil rights, and in response, the potential solutions
offered by holistic approaches to policy evaluation, such as the National Integrity
System (NIS) approach. Poland was one of 24 countries subject to NIS assessment
as part of a Europe-wide initiative [
]. However, as we then discuss, the actual history
of the principal reforms in Poland since 2006 shows how readily these risks can be
realized, particularly in circumstances where an atmosphere of ‘moral panic’ is allowed
to emerge around corruption issues – or indeed, encouraged or exploited. After
analyzing this history in some detail, we return, in conclusion, to recommendations
for how a policy evaluation framework like the NIS might best evolve to achieve its
original, holistic goals and better deal with these fundamental tensions.
Anti-corruption policies as threats to human and civil rights
Internationally, the pressure to fight corruption has been increasing on an
unprecedented scale since the 1990s see [
]. In this time, numerous multinational anti-corruption
programs have been initiated by global organizations such as the World Bank, the
International Monetary Fund, the European Union and the United Nations. A large
body of international law, setting global standards for anti-corruption policies, has
developed. The UN Convention Against Corruption (UNCAC) alone obliges its
signatory countries to implement dozens of legal and institutional anti-corruption
measures, which governments typically adopt. However, this may also only be out of
governments’ eagerness to please foreign investors, and political leaders may also use
international standards in an instrumental manner, not (or not only) to fight corruption,
but as another technique to gain support from voters or to combat political opposition
]. Therefore, anti-corruption policies are sometimes created without any deeper
reflection, with the risk they will be ineffective or even counterproductive.
Human and civil rights may also come into jeopardy in this process. As Grunberg
] described, dilemmas arise because the process of detecting and counteracting
corruption crimes often includes infringements of fundamental norms such as (1) the
right to a fair trial; (2) the presumption of innocence; (3) the guarantee against
selfincrimination; (4) the right to property; and (5) the right to privacy. The problem arises
even within the UN Convention Against Corruption, with Article 65(2) stating that a
state-signatory may ‘… adopt more strict or severe measures than those provided for by
this Convention for preventing and combating corruption’ [
]: 54, arguably providing
a direct incentive to violate the standards mentioned in the preamble of the Convention
including principles of fairness, responsibility and equality under the law.
Some states, encouraged by the adoption of the UNCAC, introduce rigorous
regulations preventing the illicit enrichment of public officials. Because it is usually
difficult to secure evidence for this class of crime, the UNCAC suggests shifting the
burden of proof onto suspects. Hence, prosecution or tax authorities are not obliged to
prove that wealth comes from illegal sources – rather, the suspect must prove that he or
she acquired the property legally, obviously jeopardizing a traditional presumption of
innocence. Guarantees against self-incrimination may also be breached if one decides
not to testify, as silence becomes a de facto admission of guilt. For these reasons, many
countries, e.g. Great Britain and Poland choose not to follow these UNCAC
requirements – although in Poland, in 2016, the return of a government responsible for the
decisions and actions we analyze below indicates a change in this attitude, and renewed
preparedness to scarify human rights in exchange for more radical, and in its opinion
more effective, anti-corruption measures.
Serious tensions between human rights and anti-corruption policies also develop in
relation to the right to property [
]. Effective anti-corruption policy requires that
dishonest public officials, politicians or businesspeople making fortunes on corruption
should forfeit this stolen property or assets, for the benefit of the public. Article 31 of
UNCAC obliges signatory states to take all measures permitted within their legal
system to seize and confiscate assets derived from corruption offenses. However, assets
recovery procedures often raise controversies, for similar reasons. As Ivory shows with
respect to Article 6 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms (ECPHRFF), European courts (including the European
Court of Human Rights) tend to find violations of the right to property or the
presumption of innocence only in very specific situations in asset recovery disputes:
only when there is a serious breach of court procedures, a threat to the right to life and
dignity, or an accused person may be subjected to torture. Therefore, European courts
enforce most judgments of other states concerning confiscation, with only minimum
standards of the right to a fair trial fulfilled. Grunberg [
] also points out that an
oftenused solution is to confiscate property without any court order (in rem), solely on the
basis of administrative procedure, with even lower requirements regarding evidence.
Even greater tensions can arise where countries choose to establish anti-corruption
agencies (ACAs) equipped with extensive powers to interfere with private lives of
citizens – another fashionable trend under UNCAC, with Article 36 often interpreted as
a requirement to create one super-enforcement body specialized in corruption crimes.
This is the key focus of the rest of our analysis, in the Polish case. In the first five years
after UNCAC entered into force in 2003, 24 institutions of this type were established all
over the world [
]. Many states give these agencies highly invasive powers, such as
wiretapping, monitoring of correspondence, and provocations), immediately raising
tensions with human and civil rights such as the right to privacy, and increasing the
risks that ACA officers may abuse these powers, especially if under political pressure.
Regular oversight of the courts over the use of these special powers often turns out to
be imperfect. Case studies demonstrating the risk of inadequate citizen protection
against such institutions include Singapore, Hong Kong, Indonesia, South Korea,
Ghana, Nigeria, Latvia, Lithuania, Romania and Bulgaria [
]. Such tensions were
also identified as a possible reason why dedicated ACAs ranked as, on average, the
least strong of the institutional integrity pillars across the 12 European countries where
they were present, in the 24-country National Integrity System project : 16, 19.
The National Integrity System (NIS) approach to anti-corruption policy is especially
relevant to the risk of human and civil rights abuse, because it seeks to adopt a broader
perspective towards how integrity institutions and policies are working, across the
entire political system. As noted in the Introduction to this special issue [
National Integrity System (NIS) concept arose due to perceived need for a more holistic
approach to evaluation and reform, in place of a tendency towards one-off responses
like single new anti-corruption laws or agencies. If all relevant integrity and
anticorruption institutions operate in a transparent manner, cooperatively, one may say that
an effective anti-corruption policy is in place. On the one hand, the NIS approach may
seem to promote a repressive approach to anti-corruption policy, because the
fundamental pillars of the system could amount to an extensive apparatus of repression,
through the broad criminalization of corrupt behaviors and reliance on a variety of law
enforcement bodies, including ACAs. However, on the other hand, the philosophy of
the NIS approach also requires that the anti-corruption system or policy take into
account a set of different factors: political, economic and cultural, as well as values
and standards, such as human and civil rights [
] – along with the presumption that no
single solution (e.g. an ACA or specific law) will effectively reduce the risk of
If this holistic vision of anti-corruption policy is accepted, the question becomes
how such a theoretical approach, and the assessment and evaluation approaches that
flow from it, can foster the development of solutions which do not violate fundamental
values such as human rights. In Poland, the NIS approach applied between 2010 and
2012 proved effective for assessing anti-corruption policies and formulating
recommendations on how to improve them, and was helpful for understanding the complex
relations between anti-corruption policy and human and civil rights see [
the Polish case demonstrates that the risk of focusing on such Bsilver bullet^ solutions
as an all-powerful ACA remains, and may even be on the rise, notwithstanding its
consistency with a broader perspective. The NIS report also failed to cool down the
atmosphere of Bmoral panic^ in which Polish anti-corruption policy was created in the
preceding years, and came too late to help avoid serious violations of human and civil
rights. We therefore turn to this case in detail before returning to the question of how
evaluation approaches like the NIS might move beyond reporting on infringements of
these fundamental values, and more effectively support the original goal of holistic
BMoral panic^ as a driver for corrupt anti-corruption policies
There are many circumstances in which anti-corruption policies can be designed in
such a way that they will pose a threat to human and civil rights. In states with an
authoritarian history, this is less surprising. Singapore, for example, for many years was
considered to have a model anti-corruption policy, relying in particular on its ACA, the
Corrupt Practices Investigation Bureau (CPIB), often presented as one of the best
models of central anti-corruption agencies. However, it is also easily forgotten that
CPIB was at times infamous for controversial methods which violated human and civil
rights, e.g. through use of torture [14: 23, 90; 20: 9; 21].
What are the circumstances in which democratic countries, which theoretically
should respect human and civil rights, may also come to have anti-corruption policies
which violate these norms? In Poland, the reform history shows one of the most
important to be a situation of moral panic. Since the 1970s, this has come to be
understood as a situation where a society becomes strongly convinced that it has to deal
with events, processes, individuals, or groups that threaten fundamental values,
interests, objectives and social institutions, and in which sources of anxiety become the
‘subject of styling and stereotyping’ by the media, politicians, moral entrepreneurs
(such as church institutions or authorities), experts and NGOs [
]. Moral panic has a
tendency to sudden outbursts and interruptions. According to Goode and Ben-Yehuda
], moral panic can be understood as a sociological problem with five key features:
1. Concern – an increased level of interest in certain social groups, categories of
behavior or the consequences of certain behaviors that are seen as a significant
threat to the society
2. Hostility – attitude of the society to specific groups or behaviors considered as a
threat is characterized by a high level of hostility
3. Consensus – that the threat (the source) of a moral panic is real and what the exact
reasons for this situation are
4. Disproportion – risk indicators, numbers, statistics, examples illustrating the threat
are exaggerated or are inadequate (as often happens in cases of corruption, where
there are no actual indicators that would determine the scale of the problem)
5. Volatility – a sense of danger suddenly explodes with high intensity, but then has a
tendency towards institutionalization, routinization and slow decay, with periods of
relapse and subsequent sudden explosions.
While moral panic may be a social construct, its consequences are real and can be of
two types: (1) adoption of new (mostly very repressive) laws and / or creation of
programs, policies and institutions or agencies whose task is to deal with the problem
quickly; and (2) possible revision of moral attitudes in society, including views on what
should be considered good or evil (which may take the form of acceptance of the threat
as a part of normality).
Democratic states by their nature may be prone to moral panic [
], because they are
more open, pluralistic and influenced by independent mass media than other types of
political regimes. Moreover, in the Internet age, where access to public debate is
practically unrestricted, one event (or sometimes even one person) may cause an
explosion of moral panic. For example, the war on terrorism announced by the US
after the 9/11 attacks led to severe anti-terrorist measures around the world, including
military operations, extra-judicial killings, surveillance and privacy infringements,
long-term detention and imprisonment of suspects without any independent court
oversight, and other threats to human and civil rights. The war on terrorism is a good
illustration of how, in the situation of moral panic decision-makers can sacrifice these
values in the name of maximizing the efficiency of urgently-required actions,
notwithstanding their inconsistency with the promotion of democracy and the rule of law.
Moral panic generally also leads to disproportionate reactions of society and public
institutions to the real or putative conditions perceived as a threat. Of course, what is
proportional and what is not can be contested. However, it is generally agreed that a
reaction which goes beyond certain commonly accepted, often legally enforced and
institutionalized set of norms (e.g. human rights) is inherently disproportionate. The
scale of disproportion and moral panic may be further discussed using, for example, the
indicators suggested by Goode and Ben-Yehuda [
In our assessment, Poland provides a good example of how corruption can become
the subject of moral panic, resulting in disproportionate policies. In Poland, until the
collapse of communism in 1989, corruption was simply a way of life [
]. In the
new democratic reality, for many years it was not perceived as a major social problem
either, although it was still common. Corruption only became an important concern to
the society, government, the media and experts in the late 1990s, when Polish
authorities were forced to adapt to the requirements of the European Union and other
international organizations (such as the NATO or OECD) . Between 1998, when
Poland started its negotiations on accession to the EU, and 2004 when the country
joined, the process of rising moral panic on corruption is clearly observable. The
government initiated a public debate on corruption and anti-corruption policy, but soon
lost control over it. Public opinion seemed to be struck by a sudden Brevelation^ that
the country was at high risk of corruption. What had been common for decades, rapidly
became something unwanted and shameful. A clear indication of this swing in public
opinion is illustrated in Fig. 1, which shows a more than 20 % increase in those
believing that corruption in Poland is a severe problem, between 2000 and 2001, and
remaining very high until 2006. As shown in Fig. 2, the momentum of moral panic
concerning corruption was also reflected in changes in the media discourse, with the
incidence of corruption-themed content in the two most widely read newspapers in
Poland (Gazeta Wyborcza and Rzeczpospolita) increasing by more than 140% in the
The moral panic created a powerful pressure on policy-makers in Poland, who
responded from the late 1990s and over next few years with an unprecedented 49 legal
acts aimed at reducing the risk of corruption. Moreover, 16 police departments were
established to combat corruption, alongside special anti-corruption units in the
prosecutors’ bureaus and other services, such as the Railway Protection Service [
Paradoxically, the government that initiated these changes did not escape accusations
of corruption, and its achievements were discredited by scandals involving high
officials, adding more fuel to the moral panic. The government fell in 2004 (a day
after the Polish accession to the EU), when the moral panic was at its height, only to be
succeeded by populist parties in 2005, proclaiming radical slogans of Bwar against
corruption^. Consistently with the Goode and Ben-Yehuda analysis of moral panic, the
process ended with implementation of severe anti-corruption measures – the most
VII 91 VIII 91 II 92
VII 00 VIII 01 II 03
XII 05 II 06
IV 09 IV 10 IV 13
important being establishment in 2006 of the Central Anti-corruption Bureau (Polish
acronym: CBA), a special super-service with extremely broad competences.
Presented as a Bsilver bullet^ solution to the problem of corruption, the CBA’s
establishment helped to calm the society (as also suggested by Fig. 1). However, as we
will see, the radicalization of anti-corruption policy caused by moral panic resulted in
the new CBA – the symbol of the response – became the source of a new threat to
human and civil rights.
(Il)legal basis of the polish central anti-corruption bureau
To understand the significance of the Central Anti-Corruption Bureau (CBA) as an
example of human rights abuse in the name of anti-corruption, in its first two years, it is
useful to examine the content of its enabling legislation, followed secondly by its
actions as an institution. Indeed, it is relevant to ask how many times human and civil
rights might be infringed by one legislative act. The Bureau was founded under the law
of 9 June 2006 [
]. In the regulatory impact assessment report on the bill, its sponsors’
arguments in favor of a new institution cited the results of public opinion polls, the
belief that corruption was one of the central problems in Poland, and Poland’s
international commitments, including under the UN Convention against Corruption [
The bill posited that the CBA should combat corruption chiefly by means of criminal
sanctions, granted it the status of a special service, and equipped it with a range of
competences running the gamut from intelligence gathering through supervision to
] investigation. Notably, the Bureau was also assigned the task of combating
corruption in its preliminary phases (‘przedpole przestępstwa korupcyjnego’), by
pushing to ‘eliminate from the public life the entire range of individual corruptive conduct
which stops short of falling under the criminal regulations but is nonetheless a violation
of anti-corruption laws’ [
]. The Bureau was given the power to perform
specialpurpose audits and to engage in so-called controlled purchases, conditional on the
consent of either a Regional Court or the General Prosecutor (who at that time, by
law, was also the Minister of Justice).
From the beginning, the architects of this institution were aware that its operation
could pose a threat to human and civil rights. Various experts pointed out that some of
these regulations might violate the Polish Constitution and international regulations, in
particular the ECPHRFF. The bill’s sponsors responded that Article 31(3) of the
Constitution permitted the Polish legislature to limit constitutional rights and freedoms
when necessary to protect the state’s safety and security, the public order, the natural
environment, public health and morality, or the rights and freedoms of other
individuals. Corruption was presented as an overwhelming problem and fundamental threat to
the public order, and thus ideal justification for such limits. The Bureau was given
power to: audit asset declarations of persons performing public functions (e.g. state
officials, MPs and local government officials – in total around 600,000 individuals);
carry out inspections in peoples’ homes, without any oversight of the court or the
prosecutor; and collect and archive personal information not even related to any
investigation, including sensitive data such as information about health, sexual
orientation, ethnicity or addictions. Citizens were deprived of any access to this database,
and had no possibility to correct the information contained in it. These powers were
obviously detrimental to the right to privacy, a basic human right [
A further serious objection to the bill concerned the lack of any precise definition of
the term ‘corruption’ itself – a conscious decision, designed to broaden the CBA’s
]. The bill also included another vague objective, that the CBA would
combat crimes against ‘the economic interests of the state’ – again, not specified or
defined. Criticism from constitutionalists and other experts brought little effect, with the
final definition still unclear: ‘accepting, by any person, directly or indirectly, any undue
benefit, personal or other, for her or himself or any other person, or accepting an offer
or a promise of such a benefit, to act or refrain from acting in the exercise of public
functions or in the course of business’ [
]. This definition with reference to the sphere
of economic activity, in practice could mean undermining another constitutional
principle, namely the freedom to engage in economic activity. In addition, the CBA
was to operate directly and exclusively under the supervision of the Prime Minister,
which in Polish political reality meant a high risk of politicization.
Admittedly, the authors of the law on the CBA made an effort to show that the
new special service would not be a threat for citizens: Article 13(4) of the law
required officers to perform operational-investigative actions, or conduct control
activities, respecting human dignity and human rights. Placed in legislation
establishing a special, secret service equipped with extremely broad prerogatives to
intervene in the lives of citizens, this requirement tended to emphasise more than
resolve the danger.
During parliamentary debate on the bill, many reservations, presented mainly by the
opposition parties, pertained to the potential for violations of human rights and civil
liberties. One opposition MP identified the bill as violating the Constitution of the
Republic of Poland in at least three ways: ‘personal inviolability stipulated by Article
41 of the Constitution, freedom and privacy of communication stipulated by Article 49
of the Constitution, and the inviolability of the home stipulated by Article 50 of the
]: 163. Other critical comments addressed the range of powers of CBA
officers to engage in surveillance of individuals, including ‘the right to register sound
and image in any public space without a need for factual grounds to do so’; for
example, ‘to monitor what people say and do in a café, with no court supervision at
all, because the decision to engage in audio and video surveillance is made by the CBA
on its own’ [
The extent of legislative over-reach was confirmed when, after the bill was adopted
and the law entered into force, it was referred to Poland’s Constitutional Court by a
group of opposition MPs. The motion focused on compliance of the law with the Polish
Constitution and Convention for the Protection of Human Rights and Fundamental
Freedoms – in particular, Article 7 of the Constitution (prohibiting punishments with no
legal basis), Article 31(3) (determining when constitutional rights and liberties may be
limited), Articles 20 and 22 (pertaining to economic freedom), Article 42 (introducing
the principle of nullum crimen sine lege), Article 51 (informational autonomy of
individuals) and Article 32 (equal treatment by public authorities). The signatories to
the motion also posited that the law violated the principle of inherent and inalienable
dignity of a person (Article 30), the principle of inviolability of the home (Article 50),
the right to respect for private and family life (as expressed by Article 8 of the
Convention for the Protection of Human Rights and Fundamental Freedoms, and
Article 47 of the Constitution), and a number of provisions of the Council of Europe
Convention for the Protection of Individuals with regard to Automatic Processing of
Personal Data [
]. A large section of the motion pertained to the definition of
corruption provided in Article 1 of the law as violating Article 2 of the Constitution,
which stipulates that Poland is a democracy governed by the rule of law.
In 2009, the Constitutional Court ultimately agreed with the motions on the above
]. Judges held that the provision extending the notion of corruption to private
sector entities may violate the exercise of freedom of economic activity stipulated by
Article 222 of the Constitution; that the law violated informational autonomy of
individuals; and that the regulation of the President of the Council of Ministers of 27
September 2006 on the scope, terms and manner of providing information to the
Central Anti-Corruption Bureau by public bodies, services and institutions was in
violation of the Council of Europe Convention. Notably, one of the judges went further
in a minority opinion, finding that a majority of the challenged provisions of the law
also violated Article 2 of the Constitution, stipulating that Poland is a democracy
governed by the rule of law.
While the law was then amended under the judgment of the Constitutional Court, the
extent of these invalidities confirms the seriousness of the risk of human and civil rights
erosion in the name of anti-corruption. Moreover, these were not only theoretical
breaches, because in the two years prior to the judgment, the CBA made use of these
unconstitutional provisions, gaining fame as ‘the political police’ of Poland [
CBA actions in breach of human and civil rights
As already noted, Article 13(4) of the law establishing the CBA required officers to
respect human dignity and human rights. However, consistently with the extent of
overreach in the law itself, a number of actions undertaken by the Bureau in its first years of
existence saw this provision clearly disregarded. Here we will briefly mention just two
cases (of many) illustrating how the instrument of anti-corruption policy, in the form of
institutions such as the CBA, can have real, direct, detrimental impacts on human and
Fighting corruption with no respect for human dignity
In February 2007, the Bureau arrested on corruption charges a renowned cardiac
surgeon in the Hospital Clinic of the Ministry of Internal Affairs and Administration.
The CBA also actively publicized the case in the media, intending to build its image as
an efficient institution at the beginning of its functioning. Doctors are generally
perceived in Poland (along with politicians) as one of the most corrupt
socioprofessional groups [
]. Detaining a well-known doctor in a governmental hospital
thus seemed to be an ideal case. The surgeon (who did not show any resistance) was
handcuffed in the hospital in plain view of patients and colleagues, and videotaped
recording immediately released to the media. Immediately afterwards, the Bureau
organized a press conference at which the then-head of the CBA called this person
‘cynical, ruthless and corrupt’, and the Minister of Justice and Prosecutor General
stated that ‘no one, anymore, will be deprived of life by this man’, naming the doctor
]. Later on, it was also revealed that the case was code named BMengele^, which
was obviously offensive. The CBA annual report described the case as a major success,
noting that ‘53 charges, including 46 cases of corruption, were raised against [the
doctor, again named]’, along with related charges of extortion [
], p. 5. The scale of
corruption and fraud of which the doctor was suspected, according to the Bureau,
justified the drastic measures.
The Helsinki Foundation for Human Rights (the leading human rights watchdog in
Poland) had a different opinion [
]. The Foundation accused the CBA of violating
three articles of the European Convention for the Protection of Human Rights and
Fundamental Freedoms – Article 3 prohibiting degrading and inhuman treatment;
Article 5 in relation to the unlawful detention and the procedures for the adjudication
of the application of this measure; and Article 6 in relation to the presumption of
innocence. The doctor, with help of the Foundation, won several cases before Polish
courts and the European Court of Justice – among others one concerning degrading
treatment during his detention. He also won a civil case against the Minister of Justice,
who after his arrest had suggested that the doctor’s actions contributed to death of
patients. Moreover, the European Court of Justice ruled that the detention and arrest of
the surgeon was illegal, because it was authorized only by an Bassistant judge^ (asesor)
in a position of a clerical nature, lacking essential qualities of judicial independence.
BAssistant judges^ at that time were nominated directly by the Minister of Justice /
Prosecutor General for a limited time, and were to a large extent personally and
politically dependent on the minister.
After almost seven years of proceedings, in 2013, the doctor was sentenced to one
year in prison, suspended for two years, and fined for accepting Bgifts^ that were
recognized by the court as bribes. Most of the nearly one hundred original charges were
dropped. The measures against the doctor not only violated his rights, but were
disproportionate to the deeds he had committed.
Violation of the right to fair trial and standards of a democratic state
Shortly before the parliamentary elections in 2007, the then-head of the CBA
(importantly, a former politician of the party in power at that time) decided to disclose
information about the ongoing investigation against one of the MPs of the largest
opposition party. Allegedly, in exchange for financial benefits, together with a local
politician, the MP had facilitated the sale of building plots in one of the most attractive
coastal regions of Poland. Again a press conference was called, at which the head of the
CBA presented the whole situation in a peculiar and directly politicized way, stating: ‘I
hope that this press conference, presenting also the scenes of our public life, will force
everybody, e v e r y b o d y, to re-think again whom to give a vote’ (author’s
]. By making such a statement, this high public official and head of
a special service was clearly manifesting his political views. This politicization
reinforces the extent of the risk of uncontrolled anti-corruption policies, not only to
individual human and civil rights, but to political integrity and a functioning democracy
more broadly [
]. It suggested, if not demonstrated, that the CBA was simply acting at
the behest of decision makers.
The MP and the local politician charged with accepting bribes were detained as a
result of provocation organized by undercover agents. The court at first instance found
them guilty. However, the court of appeal overturned this ruling, even though the MP
actually had accepted the bribe, due to its finding that the entirety of evidence collected
by CBA and the prosecution was illegal [
]. While the MP did break the law, the
ultimate failure of the prosecution resulted solely from actions undertaken by the
Bureau. Its officers, posing as businessmen interested in buying the plot, simply made
the defendant commit an offence. The action, from the very beginning, was conducted
using the most invasive techniques (undercover agents, wiretapping, correspondence
control, provocation), without completing the statutory prerequisites to greenlight such
measures. While all operational actions were carried out with the consent of a court, the
CBA officers and prosecutors were found to have misinformed the court, and to have
failed to have even obtained internal, formal permission from the head of the Bureau to
perform such activities. Many other irregularities were also found. Consequently, more
than six years later the court of appeal decided that the MP could not be punished
because she was incited to commit the offence by the agents of the Central
Anticorruption Bureau. The appeal judge announcing the acquittal noted:
Only in an exceptional and subsidiary manner, and only for the purposes of
fighting crime, under strictly prescribed conditions, does a democratic state allow
the use of operational data collected by such services as CBA as evidence of guilt
in a criminal case. The necessary condition of acceptability, in support of a
conviction relying on the operational information, thus obtained [...] as a result
of wiretapping, observation and provocation, is scrupulous compliance with the
law by the law enforcement authorities and officers in charge of
operationalinvestigative activities, and then rigorous control of the legality of such actions by
the prosecution and the court [
Emphasising the wider implications of over-reach by an anti-corruption agency, the
judge also stated:
It results directly from the Constitution, the principle of the rule of law, that the
operational surveillance of citizens [...] is inadmissible as unlawful and illegal for
as long as there is no previously obtained information, giving rise to conjecture,
or at least guess that some concrete person has committed, or is willing to commit
a crime. [A] Democratic state, by its own very nature, rejects testing the integrity
of its citizens, or making any random checks on their integrity, using for this
purpose secret, insidious methods. Such conduct and practice is a feature of the
Discussion and conclusions: Lessons from Poland for anti-corruption policy evaluation
The history of Poland’s Central Anti-Corruption Bureau illustrates perfectly the main
problem of this analysis, i.e. the potential for tension between anti-corruption policies
and human and civil rights and its consequences. It also addresses a broader issue.
Goode and Ben-Yehuda [
] mention that as an outcome of moral panic, radical and
restrictive policies tend to become institutionalized. In Poland, threats to human and
civil rights resulting from flawed anti-corruption policy became tolerated by
decisionmakers as an unavoidable side effect of the efforts to curb corruption. Therefore, it
should not be surprising that the Central Anti-Corruption Bureau was created, despite
clear signals that it might be a serious threat to human and civil rights. Sponsors of the
law on the CBA were strongly attracted to Asian examples of anti-corruption agencies,
particularly the Singaporean model, without analyzing the controversies and negative
experiences surrounding either these original institutions or their adaptions to other
countries such as South Korea, Nigeria or Thailand [
Even after the CBA started functioning and its practices proved that the threat was
real, the authorities ignored the problem. The biggest parliamentary opposition party at
the time when the Bureau was established came to power after elections in 2007, yet
still nothing was done to reform the CBA to reduce the risk to human and civil rights.
Amendments in the law on the CBA were forced only by the ruling of the
Constitutional Court in 2009 and came into force a year later. It thus took nearly five years to
correct even the most obvious flaws that posed a risk to human and civil rights. The
CBA was not created as a flawed institution by accident or because there was no time
for proper legislative work. It was created by policy-makers on the wave of the moral
panic, in full awareness of the issues it would cause.
In this context, was there anything that could be done to reduce the likelihood of
what happened with the Central Anti-Corruption Bureau? Further, how can
anticorruption policy evaluation techniques such as the National Integrity System (NIS)
approach better account for the risk, and ensure it is properly considered in the
context of anti-corruption reforms, especially given the holistic goals of this
In the first place, at least two solutions could have been applied that may have
mitigated this risk, even in circumstances of moral panic. One is a proper Regulatory
Impact Assessment (RIA), which should precede any decision concerning
anticorruption policy. The RIA prepared for the bill in this case was devoid of substantive
content, containing no word as to whether the establishment of the CBA could raise any
problems with regard to human and civil rights. Even a basic RIA could therefore have
helped to avoid what happened, if the preparation of impact assessments required
legislators to take into account the perspective of human and civil rights.
Even better would be universal standards for including human and civil rights into
regulatory impact assessment procedures, in the form of a Human Rights Impact
Assessment (HRIA), of the kind currently promoted mainly by the UN and the World
Bank during preparation of laws, programs, strategies, international agreements or
concrete projects. A Human Rights Impact Assessment (HRIA) on anti-corruption
policies should at least establish whether there is a risk of violating: (1) the right to a
fair trial; (2) the presumption of innocence; (3) the guarantee against self-incrimination;
(4) the right to property; (5) the right to privacy. Furthermore, an HRIA approach would
see decisions or whole policies developed in an open and participative way, giving
experts, academics and interested citizens an opportunity to participate in the process of
creating anti-corruption policies that more effectively balance these risks.
An equivalent approach is needed in any process aimed at assessing the need for
new or different anti-corruption institutions in the first place, and in the continuous and
systematic monitoring that should accompany anti-corruption policies during
implementation. As noted earlier, the NIS approach is potentially an ideal instrument for
these tasks, being also a well-established and recognized assessment tool of
anticorruption policies. However, despite its comprehensive intent, the NIS assessment
methodology at the time of the relevant European project [
] did not touch on the
problem of relations between human and civil rights and anti-corruption policies.
Consequently, it offered little to identification and resolution of these major problems
in Poland’s integrity system, even when otherwise contributing positively to debate on
many issues. The lack of this type of analysis was a serious drawback.
A major lesson for anti-corruption policy evaluation techniques, including but not
limited to the NIS approach, is thus the need to make a human and civil rights
perspective a standard element of monitoring and evaluation, and not just an optional
feature. In the NIS context, this can be better achieved in two ways. Firstly, the level of
respect for human and civil rights can be analyzed as part of the foundations of
anticorruption policies – on a par with reflection on the political system, economy, social
relations and culture. Second, compatibility with human and civil rights should be
addressed in the assessment of individual areas of anti-corruption policy (i.e. its pillars),
with particular focus on those related to law enforcement and the powers of state
institutions such as anti-corruption agencies, like the CBA in this case. It should be
obligatory to take into account questions on human and civil rights protection within
the analysis of these bodies, through the addition of suitable indicator questions. Also,
nothing stands in the way of taking human and civil rights into account in the role of
other institutions, including civil society organisations, the ombudsman, or the judiciary
(e.g. BAre there any regulations or other documents (such as guidelines for judges)
obliging courts to take into account the perspective of human and civil rights with
regard to corruption cases?^ or BDo courts, when dealing with corruption cases,
analyze the problem of human and civil rights infringement, either with regard to
victims or perpetrators?^).
In these ways, assessment approaches such as the NIS can better realise their
potential, by directly establishing how human and civil rights perspectives and
anticorruption objectives can be mutually reinforcing rather than seeing risks emerge that
one way undermine the other. Of course, neither Human Rights Regulatory Impact
Assessment, nor an improved National Integrity Systems tool will stop politicians
(especially in situations of moral panic) who are determined to instrumentalise
anticorruption measures for short-term goals, in ways that harm human rights. However,
for those who oppose such actions they will be always a source of arguments and an
advocacy tool to bring anti-corruption policies closer to human right standards; and for
researchers, a source of knowledge to document and analyse policy processes.
The Polish case affirms the importance of adjusting available instruments to expose
the dangers and minimize the risk of violations of human and civil rights within
anticorruption policies. The principles of efficient anti-corruption policies are already
established by UNCAC and other documents but the additional step is needed of
ensuring that anti-corruption also meets the highest standards of democracy and the
rule of law. Just as it is difficult to justify a policy against terrorism which itself uses
terrorist methods, efforts to curb corruption will be compromised and
counterproductive wherever they use anti-democratic, anti-human-rights measures.
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1. Heywood , P. , Johnson , E. ( 2017 ). Cultural specificity versus institutional universalism: a critique of the National Integrity System (NIS) methodology . Crime Law & Social Change (in press)
2. International Council on Human Rights Policy . ( 2009 ). Corruption and human rights: Making the connection . Versoix: International Council on Human Rights Policy.
3. Transparency International . ( 2012 ). Money, power and politics: Corruption risks in Europe . Berlin: Transparency International.
4. Bukovansky , M. ( 2002 ). Corruption is bad: Normative dimensions of the anti-corruption movement . In Department of International Relations Working Paper 2002 /5. Canberra: Australian National University.
5. Krastev , I. ( 2000a ). The corruption paradox: why post-communism is/looks more corrupt than communism . http://www.colbud.hu/honesty-trust /krastev/pub02.PDF. Accessed 18 Jan 2015 .
6. Krastev , I. ( 2000b ). The strange (re)discovery of corruption . In R. Dahrendorf (Ed.), The paradoxes of unintended consequences (pp. 23 - 41 ). Budapest: CEU Press.
7. Mugiu-Pippidi , A. ( 2011 ). Contextual choices in fighting corruption: Lessons learned . Oslo: NORAD.
8. Krastev , I. ( 1997 ). Anticorruption rhetoric and reform policies . Sofia: Centre for Liberal Strategies.
9. Makowski , G. ( 2017 ). Anti-corruption agencies - Silver bullet against corruption or fifth wheel to a coach? Analysis from the perspective of the constructivist theory of social problems. Studia z polityki publicznej 2(10) (forthcoming).
10. Grunberg , C. ( 2007 ). Corruption and human rights: Integrating human rights into the anti-corruption agenda . International Council on Human Rights Policy , Working Paper.
11. Ivory , R. D. ( 2014 ). The right to a fair trial and international cooperation in criminal matters: Article 6 ECHR and the recovery of assets in grand corruption cases . Utrecht Law Review , 9 ( 4 ), 147 - 164 .
12. Makowski , G. ( 2010 ). Socjologiczna analiza funkcjonowania centralnych organów antykorupcyjnych. Międzynarodowa perspektywa i polskie doświadczenia . Warsaw: ISP.
13. Dionisie D. , & Checchi , F. ( 2009 ). Corruption and anti-corruption agencies in Eastern Europe and the CIS: A practitioners' experience. Paper presented at the conference: Empowering anti-corruption agencies: defying institutional failure and strengthening preventive and repressive capacities , Lisbon, May 14-16, 2009 .
14. Meagher , P. ( 2002 ). Anti-corruption agencies: A review of experience . Washington: World Bank.
15. Quah , J. S. T. ( 1999 ). Comparing anti-corruption measures in Asian countries: Lessons to be learnt . Asian Review of Public Administration, XI(2) , 71 - 90 .
16. Quah , J. S. T. ( 2009 ). Combating corruption in the Asia-Pacific Countries: what do we know and what needs to be done? International Public Management Review (electronic journal) , 10 ( 1 ), 5 - 33 . http://www.ipmr. net. Accessed 28 June 2015 .
17. Brown , A. J. , Heinrich , F. ( 2017 ). Towards Third Generation Anti-Corruption Diagnostics and Policy . Crime Law & Social Change (in press)
18. Pope , J. ( 2000 ). Confronting corruption: The elements of a National Integrity System (the TI source book) . Berlin & London: Transparency International.
19. Kobylińska , A. , Makowski , G. , & Solon-Lipiński , M. ( 2012 ). Mechanizmy przeciwdziałania korupcji w Polsce, Raport z monitoringu [Anti-corruption mechanisms in Poland , Monitoring Report] . Warsaw: ISP.
20. U.S. Department of State. ( 2013 ). Country reports on human rights practices for 2013 . Washington DC. http://www.state.gov/documents/organization/220439.pdf. Accessed 28 June 2015 .
21. Straits Times , The ( 1971 ). 'I was tortured by CPIB' charge by ex-warrant officer , The Straits Times (Singapore) , 15 August 1971 , 7 .
22. Cohen , S. ( 2002 ). Folk devils and moral panics: The creation of the mods and rockers . London/New York: Routledge.
23. Goode , E. , & Ben-Yehuda , N. ( 2009 ). Moral panics: The social construction of deviance . London: Blackwell Publishers.
24. Nagra , D. ( 2010 ). Moral panics: how media influences the legislature . Coventry Journalism Review , 06 / 10. https://cjr2010.wordpress.com/ 2010 /06/10/moral-panics -how-media-influences-the-legislature . Accessed 18 Jan 2015 .
25. Rychard , A. ( 1995 ). Władza i interesy w gospodarce polskiej u progu lat osiemdziesiątych . Warsaw: Oficyna Naukowa.
26. Tarkowski , J. ( 1994 ). Socjologia świata polityki . Warsaw: ISP PAN.
27. Makowski , G. ( 2012 ). Diffusion of corruption in Poland . In D. Tanzler, K. Maras , & A. Giannakopoulos (Eds.), The social construction of corruption in Europe (pp . 165 - 194 ). London & New York: Routledge.
28. Pankowski , K. ( 2014 ). Opinie o korupcji oraz standardach życia publicznego w Polsce, Centrum Badania Opinii Społecznej . Aktualne problemy i wydarzenia (282).
29. Makowski , G. ( 2008 ). Korupcja jako problem społeczny . Warsaw: TRIO.
30. Poland ( 2006a ). Law of 9 June 2006 on the Central Anti-corruption Bureau , Journal of Laws , 2006 , No. 104 , item 708.
31. Poland . ( 2006b ). Ocena skutków regulacji do projektu ustawy o Centralnym Biurze Antykorupcyjnym [regulatory impact assessment of the draft law on the central anti-corruption bureau] . Warsaw: Sejm RP.
32. Poland ( 2006c ). Bill on the central anti-corruption bureau of 21 January 2006 , Sejm [Parliamentary] official paper No. 275 .
33. Poland ( 2006e ). Official transcript of the tenth session of the Sejm, 16 February 2006 .
34. Poland ( 2003 ). Journal of Laws of 2003 , No. 3, item 25.
35. Constitutional Court of Poland ( 2009 ). Statement of grounds to the judgment rendered by the Constitutional Court on 23 June 2009 , file no. K 54 /07.
36. Polish Press Agency ( 2013 ). Sąd nie pozostawia złudzeń: Beata Sawicka niewinna, CBA działało bezprawnie . http://wiadomosci.gazeta.pl/wiadomosci/1,114871, 13813337 ,Sad_nie_pozostawia_ zludzen__Beata_Sawicka_niewinna_. html. Accessed 18 Jan 2015 .
37. Feliksiak , M. ( 2013 ). Opinie o korupcji . Warsaw: Centrum Badania Opinii Spolecznej [Public Opinion Research Center] (CBOS).
38. Onet ( 2013 ). Doktor Mirosław G. skazany. Ziobro: ten wyrok to zła wiadomość . http://wiadomosci.onet. pl/kraj/doktor -miroslaw-g-skazany-ziobro-ten-wyrok-to-zla-wiadomosc/k46fs Accessed 8 Jan 2017 .
39. Centralne Biuro Antykorupcyjne [Central Anticorruption Bureau , Poland]. ( 2008 ). Informacja o wynikach działalności CBA w roku 2007 r. Warsaw: CBA.
40. Bodnar , A. , & Sześciło , D. ( 2007 ). Przeciwdziałanie korupcji: instytucje i ich działania . In L. KolarskaBobińska, J. Kucharczyk, & J. Zbieranek (Eds.), Demokracja w Polsce 2005 -2007 (pp. 237 - 262 ). Warsaw: ISP.
41. TV24 . ( 2007 ). CBA pokazuje dowody obciążające Sawicką (http://www .tvn24.pl). http://www.tvn24. pl/wiadomosci-z-kraju,3/cba-pokazuje-dowody-obciazajace-sawicka,37376.html . Accessed 8 Jan 2017 .
42. Court of Appeal, Poland ( 2013 ). Judgment in Case file No. II AKa 70/13.