Good legal article on asset declaration by politician and government servant

A great number of countries around the world have introduced systems of asset

declaration for public officials in order to prevent or combat corruption. Many believe that

asset declarations can be a powerful tool in this regard; however, the impact of such

systems on actual levels of corruption is not well known.

 The main aims of asset declarations may including

the following:

● to increase transparency and the trust of citizens in public administration, by disclosing information

about assets of politicians and civil servants that shows they have nothing to hide;

● to help heads of public institutions prevent conflicts of interest among their employees and to resolve

such situations when they arise, in order to promote integrity within their institutions;

● to monitor wealth variations of individual politicians and civil servants, in order to dissuade

them from misconduct and protect them from false accusations, and to help clarify the

full scope of illicit enrichment or other illegal activity by providing additional evidence.

 Asset declarations are one among

many tools that can help prevent corruption, but they cannot deliver alone, especially in

countries where democracies are not yet mature, corruption is widespread, tax systems are

dysfunctional and law enforcement is weak. However, a well-designed and operational

system of asset declarations can be an important element in the overall anti-corruption

and integrity system of a country.

Who should be obliged to declare assets?

There is no uniform standard regarding what circle of public officials should be

obligated to submit declarations. Countries should carefully debate and weigh the costs and

benefits related to broader (and more burdensome and costly) or narrower coverage. There

is no convincing evidence that covering the broadest possible circle necessarily leads to

more effective prevention of corruption.

● As said above, due attention should be paid in setting obligations separately in

accordance with the level and responsibilities of officials. While the obligations of MPs and

senior officials should be relatively heavy, those of ordinary, and especially middle- and

low-level officials, can be light.

● Obligation to disclose assets does not have to be linked formally to the rank of an official, but

rather to the extent of decision-making authority and managerial powers of officials, and the related

risks of conflict of interest and abuses of office. This obligation should also cover private

entities and individuals empowered to provide public services through outsourcing.

● It should be recognised that corrupt officials often hide their assets under the names of

their relatives, their spouses and other individuals. Therefore, it should be possible to

monitor the wealth not only of a public official, but that of close relatives and household

members. This can be achieved through the public officials’ declarations system or

through the tax system, or by law enforcement authorities. However, vis-à-vis relatives

and household members, a respect for the privacy of individuals is required.

The coverage of declarations systems should not result in a heavy burden on a vast number of

persons who are not public officials, especially if the declared information is subject to public

disclosure in light of the growing concerns related to privacy protection.

What information should be declared?

The scope of information to be declared depends on the purpose of declarations. Conflict of

interest control requires information about interests that have the potential to influence

the discharge of official duties, rather than a necessarily all-encompassing picture of all

income, assets, outside business and other activities. On the other hand, proper wealth

monitoring is possible only when the declared information truthfully reflects all of the

substantial income and assets, and fluctuations thereof.

Which information should be open to the general public

and other public institutions?

While there is a global trend towards greater disclosure, striking the right balance

between public disclosure and protection of privacy remains a subject of debate.

Article 7 (Paragraph 4) of the United Nations Convention against Corruption requires

states, in accordance with the fundamental principles of their domestic law, to endeavor

to adopt, maintain and strengthen systems that promote transparency and prevent

conflicts of interest. However, the concrete design of policies to control conflicts of interest

falls within their national competence.

Transparency and public accountability – Along with the prevention of conflicts of

interest, more general concerns for transparency, public accountability, trust and integrity

constitute the most commonly stated purposes of the declaration systems.

In Wypych v. Poland (October 25, 2005, application no. 2428/05), the European Court of Human Rights rejected the complaint of a local council member in Poland who refused to submit his asset declaration claiming that the obligation to disclose details concerning his financial situation and property portfolio imposed by legislation was in breach of Article 8 of the European Convention of Human Rights.

The Court found that the requirement to submit the declaration and its online publication were indeed an interference with the right to privacy, but that it was justified and the comprehensive scope of the information to be submitted was not found to be excessively burdensome:

The Court “considers that it is precisely this comprehensive character which makes it realistic to assume that the impugned provisions will meet their objective of giving the public a reasonably exhaustive picture of councilors’ financial positions ... that the additional obligation to submit information on property, including marital property, can be said to be reasonable in that it is designed to discourage attempts to conceal assets simply by acquiring them using the name of a councilor’s spouse.”

The European Court of Human Rights also endorsed the publication and internet access to declarations arguing that “the general public has a legitimate interest in ascertaining that local politics are transparent and Internet access to the declarations makes access to such information effective and easy. Without such access, the obligation would have no practical importance or genuine incidence on the degree to which the public is informed about the political process.”