[PIO] Announcement of the Audit Office in relation to the bill on the autonomy of the Legal Service

There is an urgent need to separate the powers of the Attorney General and remove the unaccountability of his powers as a public BR\]

1. The recommendations of the Audit Office as the body in charge of evaluating actions related to the fight against corruption

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1. With regard to the bill concerning the so-called autonomy of the Legal Service, the Audit Service notes the following:

(a) The Constitution provides in Article 112 that "the Legal Service of the Republic is an independent service not attached to any ministry" and in Article 115 that "the Audit Service of the Republic is an independent service of the Republic not attached to any ministry." In addition, and while the independence of any Audit Service is internationally considered the quintessence of its effective functioning, we consider it unthinkable that the Auditor General with the Assistant Auditor General and three Directors can appoint all the staff of the Audit Service, including the Directors, i.e. the Directors appoint their peers. In general, we consider it a clear subversion of the effort to entrench meritocracy to concentrate such power of appointment, promotion and disciplinary control in two substantive persons. Such powers can remain within an agency only if it is managed by a collective body that is different from the body charged with the management of the agency.

(b) The Constitution clearly establishes that all civil servants are subject to the jurisdiction of the Public Service Commission (PSC). The only separate category is judges. We understand that the position of the Legal Service is that by law (but without amending the Constitution) Parliament can designate as a separate category of employees e.g. the employees of the Legal Service, tomorrow the Audit Service, the Judicial Service, the House of Assembly, the Office of the Commissioner of Administration, etc. and they will cease to be subject to the PSC. Given that the Constitution establishes the Attorney General as the first line of control of the constitutionality of any law (by means of the legislative review that he carries out before and after the adoption of any law), but also taking into account that in this case the Attorney General is prevented from objectively exercising this role, since the bill positively and substantially affects his own powers, it is our recommendation to the House of Representatives to consider the necessity of obtaining independent legal advice as to the constitutionality of the bill, since, as explained above, similar provisions may in the future affect the Auditor General's Office.

(c) We have repeatedly emphasized that the identification in the Attorney General of the two separate roles of legal adviser to the State and public prosecutor, as well as the unchecked nature of the Attorney General's powers, undermine the independence of the Audit Office in terms of its right to unimpeded access to information. These distortions, which we understand are unique at European level, have also been recognised by the GRECO Committee. Indeed, it is surprising to hear the Attorney General state that this is a myth.

(d) In its 2016 Fourth Round Evaluation Report on Corruption Prevention Issues concerning Members of Parliament, the Judiciary and Prosecutors, the GRECO Commission notes the following (the relevant paragraph in Appendix here):

1. The GRECO Committee was informed of possible reforms towards greater independence of the Legal Service (e.g. regarding a separate budget, its own recruitment and promotion mechanisms, etc.).
2. Given the very broad powers of the Prosecutor General and the Legal Service, including multiple advisory powers to the executive, dealing with issues related to criminal, civil, public and international law, etc., such a broad reform is outside the focus of this Report, which is limited to the part concerning the Prosecutor.
3. That said, GRECO would see many benefits from reforms in relation to the area of the Legal Service dealing with criminal prosecutions.
4. GRECO wishes to emphasise that authorities dealing with the prosecution of criminal cases, including corruption offences, should enjoy independence and autonomy appropriate for the performance of such functions.
5. Being an integral part of the Legal Service, the Public Prosecutor's Office can be seen to operate in an environment that is not entirely free from potential or actual risk of improper influence. At a minimum, such an institutional framework requires a series of checks and balances to prevent the risks of undue influence.
6. Leaving aside the general reforms of the Legal Service, which go beyond the objective of this report, GRECO would favour reforms aimed at giving prosecuting officials (including lawyers and prosecutors) greater autonomy and independence, together with the necessary safeguards, to conduct prosecutions. To this end, GRECO recommends that reforms relating to the Legal Service include the means to strengthen the independence of the functions of the public prosecutor and the capacity of lawyers and prosecutors to perform their duties in a more autonomous manner, subject to the necessary safeguards under the rule of law.

(e) From the above, two are the irrefutable conclusions. [*]GRECO considers that, as long as the Public Prosecutor's Office is an integral part of the Legal Service, this creates risks of influence. [/LIST]

2. Internationally, Supreme Audit Institutions (SAIs) are called upon to play an important role in the fight against corruption. In September 2016, the International Organization of Supreme Audit Institutions (INTOSAI) issued a new auditing standard (ISSAI 5700) which sets out the Guideline for the Audit of Corruption Prevention Measures ("Guideline for the Audit of Corruption Prevention"). As explained in the Standard, the role of HEIs includes, but is not limited to:

1. integrating corruption and irregularity issues into the day-to-day audit work of HEIs,
2. increasing public awareness of corruption through timely and public disclosure of HEI audit results,
3. improving methods and tools to combat corruption and other forms of wrongdoing, etc.

The HEI's responsibilities also include the monitoring and evaluation of government anti-corruption policies.

On this basis, we express our concern about the unchecked powers of the Attorney General as a public prosecutor. Without making an accusation against any person in this report, we feel obliged to mention that just yesterday we forwarded a second case to the Independent Anti-Corruption Authority (the first was a week ago), concerning alleged cases of alleged abuse of power in suspending criminal prosecutions. This second case also includes a case concerning the investigation of serious tax matters of a company of interests of persons exercising public influence.

As is well known, the power of the Attorney General in relation to criminal prosecutions relates both to his power to order or not to order the opening of a criminal investigation, to proceed or not to proceed with a criminal prosecution, and to suspend a case already registered before a court.

The GRECO Reports are pervasive in their concern about the unchecked nature of all these powers.

In particular, as regards the Attorney General's power to suspend criminal prosecutions, GRECO recorded in its 2017 Compliance Assessment Report (p. 9) the following commitment made by the Legal Service.

"Insofar as the discontinuance of a criminal case is concerned, the authorities state that the reasons for such a decision are recorded in the criminal file of the relevant case. Additionally, as per the instructions of the Attorney General of Cyprus, prosecutors should state the reasons of the nolle prosequi before the relevant court in which they appear, thus making the said reasons known to the public, the defendant and all interested parties".

We are therefore surprised by the Attorney General's report, as published today, that it is a myth that the GRECO committee requires the justification of decisions to suspend criminal prosecutions for reasons of public interest.

3. The House of Representatives has the absolute power to pass or reject the filed bill. Our obligation was only to express our concerns so that Members of Parliament could have a full understanding of all the facts.

(MB/EXP)
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