Why do anti-corruption laws fail in Central Eastern Europe? A target

Transcription

Regulation & Governance (2012) 6, 66–82
doi:10.1111/j.1748-5991.2011.01125.x
Why do anti-corruption laws fail in
Central Eastern Europe? A target
compliance perspective
Agnes Batory
Department of Public Policy, Central European University, Budapest, Hungary
Abstract
The Central Eastern European member states of the European Union have introduced a host of
anti-corruption measures in the past two decades, yet corruption is still prevalent. Rather than
asking what is wrong with the letter of the law, which has traditionally been the focus of analysis,
this article identifies some of the reasons why those whose behavior the law seeks to change fail to
act as expected. Drawing on theoretical insights from implementation studies and using Hungary
as an illustrative example, the article finds that both incentives and normative judgments are
skewed towards non-compliance with anti-bribery laws. The main policy implications are that
anti-corruption interventions should pay more attention to raising awareness among target groups,
take existing social norms into account, and rely on positive incentives as well as, or rather than,
increasing penalties.
Keywords: anti-corruption, Central Eastern Europe, compliance, implementation, target groups.
1. Introduction
Corruption control has been high on the agenda in the Central Eastern European (CEE)
member states of the European Union (EU) more or less continuously since the democratic transitions in 1989–90. These countries introduced a host of anti-corruption
measures in the past two decades, ranging from penalizing various conducts previously
not recognized as criminal, to setting up specialized anti-corruption agencies, courts,
and/or prosecution services. Other legislation essential or conducive to transparency and
public integrity, such as freedom of information laws (Peisakhin & Pinto 2010), were also
adopted – many already in the 1990s. Efforts to reform and modernize the civil service
started in some countries in the mid-1990s, and became common in preparation for EU
accession (e.g. Meyer-Sahling 2004). The large-scale privatization of state assets, generally
seen as a hotbed of corruption, was completed some time ago in most CEE countries.
Electoral accountability is firmly entrenched, with at least five or six rounds of elections
having taken place since regime change. Almost all resulted in changes of government,
often as a result of voters punishing politicians seen as enriching themselves at the
public’s expense. According to monitoring reports by the Council of Europe’s Group of
States Against Corruption (GRECO), most of the countries in question have legislation in
Correspondence: Agnes Batory, Department of Public Policy, Central European University,
Nador u. 9, 1051 Budapest, Hungary. Email: batorya@ceu.hu
Accepted for publication 12 December 2011.
© 2012 Blackwell Publishing Asia Pty Ltd
Why anti-corruption laws fail
A. Batory
place that largely conforms to the relevant international standards (GRECO 2010; see also
Wolf 2010). The international NGO Global Integrity’s expert surveys also rate the legal
framework as strong in Poland, Hungary, or Romania – similarly to the longer-standing
ten EU countries surveyed (Global Integrity 2010).
Yet corruption – defined in the simplest terms as the abuse of public power for private
gain – remains a widespread and persistent problem in the CEE member states. This is
not to say that the 10 EU countries that joined the Union in 2004 and 2007 are all equally
corrupt, or that they are the only ones affected among the member states – indeed, Italy
and Greece, for instance, both score lower on integrity in Transparency International’s
(TI) Corruption Perception Index (CPI) than the majority of the “new” EU member
states (TI 2010a). Perceptions-based macro indicators of corruption are not without
serious methodological limitations (see e.g. Sampford et al. 2006). However, frequent
media reports featuring the disappearance of EU funds in Bulgaria or Romania, politicians embroiled in graft resigning (or refusing to resign) in Poland or Hungary, or bribes
extorted by Czech traffic police, lend credibility to the indices to those familiar with CEE.
Moreover, experience-based surveys strongly correlate with perceptions (TI 2007).
According to the 2010 Global Corruption Barometer, conducted by Gallup for TI, an
average of almost 17 percent of respondents from nine new member states reported
having paid a bribe in the past year, as compared with 0 percent in Denmark, for instance,
and the average was 5 percent in the EU plus Norway and Switzerland (TI 2010b). Thus,
those who had expected that corruption, fed by the general chaos of the years following
regime change in CEE, would be substantially reduced, have been disappointed; in spite
of the wide range of control efforts, corruption remains stubbornly widespread in most
countries in the region. Why is this the case?
There are naturally several possible answers to this question (the relevant literature is
briefly reviewed in the section below). In some ways the most obvious one is that the
existing laws are insufficient – a typical reaction of policymakers all around the world,
which normally, as in the CEE countries, results in more and more legislation passed and
layer upon layer of controls added to existing ones (Anechiarico & Jacobs 1996). In the
CEE cases, this knee-jerk reaction was reinforced by EU membership conditionality. The
adoption of new laws was often the only available signal to send to Brussels that the given
candidate country was committed to addressing the European Commission’s concerns in
the area (see generally Schimmelfennig & Sedelmeier 2005). However, an equally likely
and, for those familiar with CEE, more plausible answer is that the existing laws affect
only limited change on the ground – or, put differently, that policy design problems are
compounded by a very evident implementation problem. Indeed, Global Integrity’s
expert surveys find that relatively strong legal frameworks in corruption control go hand
in hand with serious deficiencies in practice, thereby pointing to a large (and in the case
of some countries, huge) implementation gap (Global Integrity 2010).
There are many things that can go wrong with policy implementation (see e.g.
Mazmanian & Sabatier 1989; Hill & Hupe 2002). Among the many possible factors, this
article focuses on target compliance, an aspect hitherto curiously under-utilized in the
literature dealing with corruption control in CEE. Rather than asking what is wrong with
the letter of the law, this article aims to identify some of the reasons why those whose
behavior the law seeks to change fail to act as expected. In doing so, it draws on the
implementation/compliance literature and applies some common insights to corruption
control. It needs to be stressed that a target compliance perspective alone clearly does not,
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nor can it be expected to, provide “a solution” to reducing corruption, or fully explain
cross-country variation in levels of corruption. The contention of this article is merely
that compliance is a hitherto relatively neglected aspect of the problem which can nonetheless make a useful contribution to the literature and also yield new policy implications.
The empirical focus is narrow: only one country, Hungary, is considered as an illustrative example, and the focus is on laws where the target group is the citizenry as a whole
(rather than civil servants, or law enforcement officials, or politicians). While the usual
methodological limitations arising from a single country as an illustrative case apply,
Hungary as a medium-corrupt post-communist member state can be considered sufficiently similar to other CEE EU countries to expect the findings to be relevant for the
region more broadly. The country is also a clear example of the paradox described above,
in that although its legislative framework against corruption is rather well-developed,
neither perception-based indicators such as the CPI nor survey data on citizens’ experiences with various forms of bribery in daily life show any significant improvement in the
last decade. The paper proceeds from Section 2 linking the literatures on (anti-)
corruption and policy implementation, and provides a framework for analyzing the
empirical material on Hungary. Section 3 reviews instrumental sources of (non-)
compliance and Section 4 normative sources in light of the Hungarian experience. A brief
conclusion summarizes the findings and some of the most evident policy implications.
2. Why do anti-corruption efforts have limited success in Central
Eastern Europe?
The literature dealing with policy failure in corruption control is considerable (although
the findings are rarely expressed in these terms). One common answer points to the
problem of agency or, as often put, the lack of political will: effective reforms to combat
corruption would need to be initiated by the very actors who are argued to benefit most
from the existing, corrupt status quo, and therefore no real effort is made (see e.g. Levin
& Satarov 2000, p. 130; Fritzen 2005, p. 81; Mungiu-Pippidi 2006, p. 87). Others point to
the legacies of the past regimes, in particular the persistence of “bad” social capital.
Informal networks inherited from communist times – initially formed as a coping strategy in what Kornai coined “the economics of shortage” (1980) – are argued to give rise to
cronyism, nepotism, and patronage, and to an unhealthy symbiotic relationship between
business and politics (see e.g. Ledeneva 1998; Miller et al. 2001; Karklins 2005).
Yet another, and perhaps a more pertinent, answer can be distilled from the literature
that looks at EU rule transfer to CEE. Although these studies do not deal with corruption
specifically or with legislation of domestic origin, the observation that in CEE laws in
books often fail to be translated into laws in action can be considered to be generally
applicable. One line of argument to explain this, is that prior to accession laws were
adopted mainly to please the EU, and, therefore, once membership conditionality no
longer provides the right incentives to CEE government reforms of any kind are likely to
run out of steam (Steunenberg & Dimitrova 2007; Moroff & Schmidt-Pfister 2010;
Haughton 2011). Another line of argument relates to (non-)implementation more
directly. Falkner and Treib’s study on the implementation of EU social policy describes
CEE as “the world of dead letters” (2008). It finds that contrary to earlier expectations that
following accession these countries would fall behind, on the transposition of EU legislation the new member states do no worse than the old ones (a finding Epstein &
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Sedelmeier (2009) concur with), but the transposed legislation has little effect. Dimitrova
similarly concludes that “European rules remain empty shells” in the new member states
(2010): although the new rules are formally adopted, in practice they are ignored and/or
substituted with parallel informal rules.
The corruption and EU rule transfer literatures provide important insights, and the
intention here is not to dispute their findings. However, the conclusions tend to be rather
broad brush and are not (and often not meant to be) actionable. For instance, MungiuPippidi’s (2006, p. 87) analysis asserts that “nothing short of . . . a revolution [against
particularism] will succeed in curbing corruption in countries where particularism prevails”. Levin and Satarov’s study on Russia suggests that “the norms of behavior are
needed to be changed so that corruption will not be viable” (2000, p. 130). As Rothstein
(2007, 2011) put it, in countries characterized by systemic corruption the problem is that
almost everything needs to change, and needs to change more or less simultaneously in
a “big bang”. Much of this literature responds to the “governance turn” in corruption
studies, that is, the idea that corruption is only one of many symptoms of the dysfunctionality of the state and of state–society relations, and therefore only a holistic approach
drawing on government and non-governmental actors alike can be hoped to produce any
change (see e.g. Andvig et al. 2000 for a review of the literature).
In the EU rule transfer literature, Dimitrova’s (2010) main diagnosis for the general
weakness of policy implementation in CEE is the weakness of the state and its institutions, which leaves space for informal networks to emerge and take over some of
the state’s functions. Falkner and Treib (2008) list the weakness of civil society,
the judiciary, and of human and material resources in enforcement agencies, among
others, as main reasons for the (non-)implementation of transposed EU social policy
legislation.
While these observations would be difficult to disagree with, the policy implications
are less clear. Clearly, the large-scale shifts in “soft” institutions (social norms) governance
accounts call for are indeed necessary. However, they can only work in the long run – and
the short time horizons even well-intended policymakers subject to electoral pressures
work with make them difficult to act upon. Similarly, strengthening formal institutions or
organizational responses, as the EU rule transfer literature suggests, is often not possible:
severe resource constraints being the rule rather than the exception. Nor is it always
sufficient: for example, setting up anti-corruption agencies is not the magic bullet many
had assumed it would be (Batory forthcoming).
Moreover, by focusing exclusively on the failures of governments and public administrations even the policy-oriented literature tells only part of the story. The machinery
of the state that is meant to deliver particular policy outcomes is one side of the picture
– the other side is that of the citizens who deal with the state. If more is known about
why target groups act, or fail to act, in line with the objective of a particular policy then
better policy interventions can be designed. This is the main objective of the target
compliance literature. Although compliance and implementation often blur into one
another, the two terms also convey distinct meanings: while the latter refers to the
process in which a given norm is put into practice, the former denotes the conformity
of behavior with a prescribed rule (rule conformity) and its main concern is outcome
(Treib 2008, p. 4). Implementation does not necessarily result in compliance as the
discussion below also illustrates (see e.g. Mazmanian & Sabatier 1989, p. 36; Treib 2008,
p. 4).
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Target compliance is somewhat under-appreciated in the burgeoning implementation literature. Particularly in the EU context, implementation is typically studied in
terms of transposition, that is, the adoption of laws, not in terms of change on the ground
(Treib 2008). Even in domestic implementation studies, the focus tends to be on the state
apparatus, whether on high-level decision-makers and the chain of command in “topdown” implementation studies, or front-line staff (Lipsky’s (1980) street-level bureaucrats) in “bottom-up” studies. Less attention is paid to the circumstances and perceptions
of those whose behavior the implemented policies intend to change. For example,
Howlett and Ramesh’s (1995) textbook on the policy cycle mentions target groups only
in passing in the chapter dealing with policy implementation. Weimer and Vining (2005)
discuss a case of obstruction by local government officials as an illustration of implementation problems. Only one chapter (Ingram et al. 2007) deals with target groups in
Theories of the Policy Process, edited by Sabatier (2007), a key reference work in policy
studies, and the focus there is on how different social constructions of target groups are
reflected in policy design. Hill and Hupe’s (2002) volume, devoted entirely to implementation studies, does not deal with target groups or target compliance. This gap in the
literature has led some scholars to call for a more “democratic” approach to implementation; that is, one where “the affected parties” feed into the policy process (deLeon &
deLeon 2002, p. 483).
Nonetheless, a body of literature dealing with target group behavior per se does
exist, albeit the topic is approached from very diverse angles. Work ranges from Tyler’s
(1990) classic Why People Obey the Law on procedural justice and Kelman and
Hamilton’s (1989) Crimes of Obedience on the problems of unquestioning compliance,
to journal articles on smoking bans in Tobacco Control. All of this work, in very different ways, deals with the question why citizens, companies, or other actors whose
cooperation is required for a particular state objective, respond to obligations in particular ways. A number of studies that are especially relevant here discuss target compliance in generic terms. Feldman (2011) distinguishes five sets of assumptions about
what motivates citizens’ reactions to regulation. The first is based on cost–benefit
calculation; the second on “reason-driven” conviction about the wisdom of following a
particular course of action; the third the conviction that the prescribed behavior is the
social norm; the fourth on fairness and morality; and finally, the fifth on simply
abiding by the law. Weaver (2009) identifies six sets of factors underlying program
targets’ failure to act as expected by the policymaker: wrong incentives; monitoring
problems; resource, autonomy, and information problems (the targets lack the
resources/power/information to comply even if they want to); and attitude problems
(the targets are hostile or distrustful).
These partially overlapping sets of factors can be tied to instrumental and normative
perspectives: the former premised on the idea that people act as dictated by self-interest
and therefore their behavior can be influenced by a combination of carefully selected
rewards and punishments, and the latter on the idea that people are influenced by their
moral judgments (Tyler 1990, pp. 3–4). Accordingly, in the following, compliance with
anti-corruption laws will be discussed as a function of incentives (including monitoring,
enforcement, autonomy issues, and information effects) on the one hand, and as a
function of social norms and legitimacy on the other. It is important to stress that
instrumental and normative sources of (non-)compliance should not be seen as mutually
exclusive; rather, target groups’ failure to “behave” as expected is a result of a mixture of
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both sets of considerations. Which type of motivation is stronger in any given situation
is highly contextual and should therefore be seen as an empirical question.
3. Compliance with anti-corruption laws: Instrumental motivations
Before the empirical material on Hungary is discussed, a few brief remarks seem to be in
order about the specific properties of corruption that make acceptable levels of compliance particularly difficult to achieve. First, as with other illicit conducts, corruption takes
place in secret, and corrupt officials will do their best to appear to act “normally,” which
makes monitoring an obvious challenge (see e.g. Gambetta 2002). Second, corruption is
often described as a victimless crime, in that the social costs (in terms of public finances,
declining trust in public institutions, etc.) are so widely spread as to be unnoticeable to
the individual. In contrast, in the case of a “successful” corrupt transaction, often each
direct participant feels they are better off than before. For instance, a civil servant may
supplement his modest salary with a little “extra,” his client, not having to go through the
official (legal but cumbersome) channels, saves a lot of time and hassle, and both parties
consider this a fair deal. These features mark out corruption as a classic collective action
problem (Olson 1965): the social costs are high but diffuse and often no immediate
personal utility can be realized from not corrupting/being corrupted, which makes the
phenomenon particularly “sticky.”
The typical reaction from policymakers to such social problems is deterrence, that is,
to try to change the individual’s strategic calculus by increasing the costs of socially
harmful behavior as well as the likelihood that those costs will indeed need to be borne
(Mazmanian & Sabatier 1989, p. 37). In the anti-corruption literature some of the most
influential early work follows the same logic when for instance Klitgaard (1988, p. 71)
argues that the decision of an “agent” to be corrupt or not is a function of her utility from
the moral satisfaction she gets from not engaging in corruption and her salary on the one
hand and the size of the bribe and of the penalty and the probability of getting caught on
the other. Although not mentioned in this “decision tree,” being aware of all the factors
(the ability to attach a price tag) and having the freedom to decide are preconditions for
the model. Accordingly, the following sections review the situation in Hungary in terms
of penalties, monitoring (detection), autonomy issues, and information effects.
3.1. Penalties
Looking at penalties alone, Hungary seems to be reasonably well equipped to deter
corruption. Sixteen types of corruption-related conducts are penalized in the Criminal
Code, in addition to crimes such as money laundering or embezzlement that are often
associated with corruption (Földes 2010, pp. 4–8). Criminal law punishes bribery
(domestic and foreign, active, and passive, and in the public and the private sectors) as
well as trading in influence and abuse of authority. The penalties are not negligible: public
officials requesting or accepting an “undue advantage” (passive bribery) commit a felony
punishable by up to ten years’ imprisonment in certain circumstances. Active bribery
(offering or promising an undue advantage to a public official) carries up to five years.
However, the chances that anyone engaging in these practices would actually face the
consequences are rather slim. Criminal statistics for 2009 show 1,237 registered investigations in corruption-related cases, or less than 0.03 percent of all investigated crimes in
a country of approximately ten million (Földes 2010, pp. 19–20). According to an esti© 2012 Blackwell Publishing Asia Pty Ltd
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mate by a public prosecutor, indictment occurs in only about one out of a thousand
corruption crimes actually committed (referred to in Papanek 2009, p. 8). Since 2005, the
number of finished court proceedings and resulting convictions has varied between 200
and 500, with only 200 cases closed in 2009 – indicating both that the number of court
cases overall is quite small and that proceedings often take a very long time to complete
(Földes 2010, pp. 19–20). Moreover, the vast majority of the cases concern street-level
corruption where only small amounts of money change hands: according to a study, in
more than half the cases the value was less than 100 euros worth of Hungarian forint
(K-Monitor 2010). Partly arising from this, relatively lenient penalties such as fines or
suspended prison sentences are relatively common (K-Monitor 2010). This also suggests
that the enforcement of the law is particularly weak with respect to the high-value,
high-level corruption cases that receive most media attention.
Low detection and conviction rates are undoubtedly at least partly due to the usually
cited reasons such as overburdened and slow courts and under-resourced law enforcement agencies, where badly paid officers investigate corruption cases, sometimes without
sufficient training and specialized expertise (Kósa & Alexa 2007). However, another, less
recognized reason is equally important: the relatively limited likelihood that corrupt
conduct comes to light.
3.2. Monitoring (detection)
The general difficulty of uncovering corruption, as noted above, is certainly borne out by
the Hungarian experience. Law enforcement agencies and policymakers also recognize
that the number of cases coming to light is only the tip of the iceberg, and have accordingly tried to pursue some of the available strategies to increase detection rates – although
not necessarily the appropriate ones. Common measures to improve monitoring include
increasing the resources devoted to agencies charged with the task or, failing that, providing incentives to particular target groups to disclose relevant information (Weaver
2010, p. 16). With respect to the former, the police budget is tight – given general budget
constraints perhaps not surprisingly – but inefficient use of existing resources is also an
important problem (Kósa & Alexa 2007).
With respect to incentivizing reporting, policy-makers tried to influence the behavior
of those judged most likely to encounter corruption, that is, civil servants, but the
instrument chosen for this is rather blunt. Public officials have a legal obligation to report
corruption, and failure to do so is a felony punishable with up to three years of imprisonment (Burai 2010, p. 4). Yet criminal statistics show essentially no reporting by civil
servants, and equally, no prosecutions of civil servants failing to report – that is to say, the
purported policy response to addressing low detection rates falls victim to the same
reasons that caused the original monitoring problem.
There have also been attempts to incentivize reporting by those engaged in corruption. Similarly to strategies employed by competition agencies for cartel busting, parties
to corrupt transactions are encouraged to defect by an “effective regret” provision in the
Criminal Code (Section 255/A) that offers impunity to perpetrators for disclosing
bribery before the investigating authorities uncover it, regardless of the motive for such
disclosure (GRECO 2010, p. 23). The measure however did not result in any change in
the number of registered cases of corruption crimes (Ministry of Justice 2010, p. 25), at
least in part because the perpetrators in question probably judged the risk of detection
fairly low in any case. Moreover, the fact that the motive for reporting is irrelevant may
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even be counterproductive in the case of crimes which would be revealed in some other
way.
Finally, whistleblower protection can also be considered as a way of influencing the
cost–benefit calculus of individuals (whether public officials or ordinary citizens), to
report corruption-related crimes. Here the logic is somewhat different than in the cases
above in that, rather than imposing a duty to report and punishing offenders, it tries to
remove, or at least ameliorate, the negative consequences that would otherwise likely
follow the decision to speak out. In Hungary too, since a 2004 amendment of the criminal
code “ill-treatment of a person disclosing information of public interest” is an offence,
punishable with up to two years’ imprisonment (Burai 2010, p. 4). However, as a TI
Hungary report puts it, the provision can only be considered as dormant: it had been
applied on only one occasion, and reprisals against the courageous individuals who do
disclose irregularities, particularly in the form of terminating employment, are common
(Burai 2010).
This situation was recognized as problematic by policymakers and comprehensive
whistleblower protection legislation was introduced in 2009, which also provided for the
establishment of a bureau or agency to assist whistleblowers. The bill was, however, never
implemented as, following a change of government in 2010, the idea of a new agency fell
out of favor. Thus, in Hungary, even the best-case scenario under the law – one in which
the whistleblower is at least no worse off than prior to the disclosure of wrongdoing – is
not an outcome potential whistleblowers can expect in practice, not to mention being
rewarded for their courage.
These factors taken together mean that a cost–benefit calculus should clearly push the
rational citizen toward not reporting corrupt practices: not only is the disclosure of
wrongdoing potentially dangerous, but also likely ineffective in terms of getting a perpetrator disciplined or behind bars. It is consequently not particularly surprising that
according to a 2007 Gallup poll, only 6 percent of respondents reported corruption when
they encountered it (Burai 2010). Low detection rates in turn weaken or remove incentives for those who engage in corruption to come forward in exchange for impunity.
3.3. Autonomy issues
Autonomy problems, that is, situations where target groups are unable to comply with
rules and requirements even if they want to (Weaver 2009) make the likelihood of rule
conformity even lower in the case of particular practices citizens encounter in daily life.
A case in point is corruption in health care. The practice of giving “gratitude payments”
is widespread and widely known, to the extent that people expect to have to pay for
medical services supposedly covered by national health insurance contributions.
Although the term suggests patients retrospectively and voluntarily rewarding kindness
or especially good service, which in earlier times was indeed the practice, what happens
in contemporary hospitals and doctors’ offices is not necessarily quite so benign. Payment
is sometimes requested by medical practitioners before treating patients, in circumstances that make, or appear to make, the payment a condition of receiving care of an
acceptable quality or in a timely manner. A website, since then closed down on data
protection grounds, for instance listed the standard “fee” individual obstetricians routinely charged in public hospitals for maternity care supposedly covered by national
health insurance – the site was intended to increase price transparency in this otherwise
completely illicit market.
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Although in theory patients can always seek an alternative service provider, in practice finding another specialist or hospital is often time-consuming or it would require
travel or some other additional expense or simply information patients lack, which
makes gratitude payments an almost unavoidable fact of life. These quasi-extortive situations can be considered to be common: according to the 2010 Global Corruption
Barometer, 26 percent of Hungarian respondents reported that either the respondent or
someone in his/her household paid a bribe in some form for health care in the past
year, although obviously not all of this was a result of extortion (TI 2010b). In the same
survey, almost 15 percent of all respondents said they paid a bribe of some sort for a
public service they were legally entitled to. In such cases the “exchange” cannot be
assumed to be entirely voluntary. With respect to this subset of the target group (i.e. the
victims of extortion) regular incentive-based anti-corruption interventions cannot be
expected to work.
3.4. Information effects
One possible partial solution to autonomy issues may be better awareness of one’s rights
or existing possibilities for seeking redress. Indeed, information deficits in target groups
seem to be a common obstacle to effective implementation of anti-corruption measures
more widely (see generally Peisakhin & Pinto 2010). Experience with a Hungarian anticorruption legal advice clinic suggests that many citizens are unable or unwilling to
distinguish corruption from other grievances they have or irregularities they come across,
and those who indeed encounter corruption often simply need directing to the relevant
authorities (interview with Ádám Földes, Director, Transparency International Hungary,
10 August 2011). In a 2007 Gallup poll, 69 percent of respondents said they did not know
where they should turn if encountering corruption (Burai 2010, p. 11) adding another
significant reason to those discussed above, explaining why reporting is so low.
Even anti-corruption measures targeting a narrower segment of the population (e.g.
those routinely engaging in corruption) seem to fail to register. For instance, legal practitioners believe that very few people are aware of the “effective regret” clause in the
Criminal Code annulling punishment for those coming clean about their own corrupt
acts (Földes 2010, p. 14). Clearly, incentive-based anti-corruption measures have no
chance of inducing the desired change in behavior if they fail to be communicated, and
hence never enter the target group’s cost–benefit calculation.
4. Compliance with anti-corruption laws: Normative motivations
Sticks and carrots alone cannot explain human behavior. Despite weak incentives for
reporting corruption, some people do; despite low risk of losing a (normally poorly paid)
job in the civil service many public officials refuse to take a bribe. As Tyler (1990, p. 4)
observes, many people obey the law without even entering into a cost–benefit calculus
simply because they believe “the law is just,” or because they believe that “the authority
enforcing the law has the right to dictate behavior.” Kelman and Hamilton (1989) suggest
that obedience – the likelihood that commands or obligations are carried out or refused
or overlooked in a society – is structured by the way individuals relate to political
authority. Levi’s (1997) work points to the importance of perceptions of procedural
fairness for people’s willingness to consent to particular policies. Feldman’s (2011, p. 338)
review of motivations for regulatory compliance refers to the perceived fairness of the
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content of the law as well as “the perception that the law was formulated and executed
with full authority.” In other words, social norms and the legitimacy of the source of legal
obligations (the policymakers and implementers) have a strong bearing on rule conforming behavior.
Applying these insights to anti-corruption, one condition for compliance on normative grounds would be a commonly held conviction within the target group that corruption is wrong. A second one would be the belief that this ethical judgment is widely shared
and acted upon. People are “conditional co-operators:” they comply when they expect
that others do too (Feldman 2011). In other words, if corruption is seen as widespread,
then people are more likely to engage in it themselves – a phenomenon Rothstein and
Tegnhammar (2006) describe as the “self-fulfilling character of expectations about corruption.” Finally, people may decide to comply with anti-corruption laws if they believe
that the politicians enacting them and the police and judiciary enforcing them are
legitimate actors rightfully demanding rule-conforming behavior. As the sections below
show, at least two of these three essential conditions are problematic in the CEE context.
4.1. Social norms
Undoubtedly, the majority of citizens in Hungary condemn corruption, and at least on
this count normative motivations for compliance should be in line with the policy
objective. However, there is a sizeable minority for whom non-corruption is not evidently
accepted as the morally desirable conduct. In 1999 (the last year from which suitable data
is available from the World Values Survey) about 12 percent of respondents thought it
was more or less acceptable – considerably more than the corresponding figures for
the “cleaner” countries of Western Europe (only 3 percent of Germans would justify the
practice, for instance) or other CEE countries (World Values Survey Association 1999).
More importantly, although the majority said they themselves would never accept
corruption, there is a strong indication that people believed everyone else did (World
Values Survey Association 1999). The relevant question on bribery was not included in
the survey, but attitudes to comparable illicit behaviors such as avoiding or cheating on
taxes certainly indicated a wide perceived gap between social norms and social practices.
Fifty-three percent thought paying cash to avoid taxes was never justifiable – the same as
those giving this answer about corruption. But when asked whether their compatriots
engaged in the practice, 76 percent of respondents thought “almost all” did. Roughly the
same proportion of respondents felt that cheating on one’s taxes was never justifiable, but
was at the same time convinced that almost all their countrymen did cheat on their taxes
(65.5 percent and 78 percent respectively). In other words, people who believed that
cheating the state was wrong and avoided engaging in the practice likely considered
themselves to be in a minority – which indicates anything but a strong belief in integrity
as the social norm. This creates perfect conditions for the downward spiral of selffulfilling expectations about corruption can give rise to.
The perception that corrupt behavior is common must be reinforced by the fact that
so many prominent members of the country’s elite have been implicated, or rumored to
be involved, in various scandals, without any apparent harm to their economic or political advancement. Shady deals – even when exposed – seem to be no obstacle to “making
it” in business or politics, sending a signal that “the big fish” can enjoy the fruits of their
illicit labors with impunity. The exceptions (corruption charges against high-profile
politicians) tend to result from the predictable but normally short-lived determination of
75
A. Batory
newly elected governments to use the full force of the law – against their political
opponents. Surveys show many more people in Eastern than in Western Europe believe
that “connections and dishonesty are the principal factors that make people wealthy”
(Rothstein & Uslaner 2005, p. 55). The message to the ordinary person is that it is the
rejection of corrupt practices that is an anomaly or deviant behavior.
There is further indication, with respect to particular forms of corruption, that
public attitudes might be a stumbling block to control efforts. As pointed out above,
gratitude payments in health care represent perhaps the most common type of petty
corruption, and here, to a great extent, moral judgments align with, rather than against,
the practice. According to a survey conducted in 2000, only a third of the public and a
tenth of the surveyed physicians felt that “accepting gratitude money is morally reprehensible,” and the majority of the medical professionals believed that “as long as the
state does not pay them properly, doctors have a right to accept gratitude money”
(Kornai 2000, p. 15). Low legal salaries among medical professionals seems to be an
important reason for people to be prepared to condone the practice; nonetheless, the
sense that there is nothing wrong with passing on or accepting some cash in an envelope for a publicly funded medical service is clearly not conducive to corruption
control efforts in the area.
4.2. Legitimacy
Compliance, in its most fundamental sense, is about the cooperation of the citizen with
the authorities in reaching some policy objective. Target groups often do not find the
objective desirable – for instance smokers are rarely pleased about the introduction of
smoking bans – but nonetheless recognize that the government has the right to determine behavioral rules binding on them. However, in the CEE countries, even for citizens who recognize that corruption is harmful and find it morally objectionable the
question that often arises is: who are they, our politicians, to tell us not to bribe or
accept a bribe?
According to the Global Corruption Barometer, Hungarian respondents rated political parties 3.9 on a scale from 1 (not at all corrupt) to 5 (extremely corrupt), concurring
with respondents from around the world in finding parties the institutions most affected
by corruption in their countries (TI 2010b). Moreover, in Hungary political parties flaunt
their disrespect for anti-corruption laws when they themselves form the target group.
Party and campaign finance regulation is weak and evidently not complied with: for
instance, the two biggest parties in the 2010 parliamentary elections were estimated to
spend up to three times the legal campaign spending limits (Kepmutatas.hu 2010), a fact
that does not escape voters. In spring 2011, Eurobarometer showed a large majority, 59
percent of respondents, did not trust their parliament or government, roughly on par
with their fellow Europeans (European Commission 2011).
Attitudes to law enforcement agencies and the courts are not much more favorable.
According to a 2009 Eurobarometer on attitudes to corruption, 53 percent of respondents
in the new member states believed corruption was widespread in the judiciary and the
police service (the same figure was 33 percent and 35 percent, respectively, in the old
member states) (European Commission 2009). In Hungary, one of the reasons people
cited for not reporting corruption, apart from not knowing where to report it, was fear of
the police (11 percent of respondents mentioned this) (Gallup poll in Burai 2010).
According to a 2005 survey, up to 26 percent of respondents thought judicial decisions
76
A. Batory
could be influenced through corruption (depending on the type of court in question),
and up to 45 percent thought investigators could be bought to influence judicial proceedings (Hack & Garai 2008, p. 12). There is thus little doubt that citizens believed that
those expecting, or meant to ensure, rule conformity with anti-corruption laws were
themselves not above breaking those laws – clearly undermining any normative commitment to compliance citizens may have had.
An overview of instrumental and normative sources of (non-)compliance in anticorruption is presented below (Table 1).
Table 1 Overview of instrumental and normative sources of (non-)compliance in
anti-corruption
Motivation
of behavior
Generic sources
of (non-)
compliance
Possible general sources
of non-compliance in the
anti-corruption field
Examples of specific
compliance issues in the anticorruption field
Instrumental
Positive and
negative
incentives
Weak or no penalty for
corrupt behavior and/or
weak or no reward for
non-corrupt behavior
Monitoring
Low likelihood of
application of penalties
due to weak detection
of corrupt behavior
Significant part of the
target group is victim of
extortion
Particular forms of corruption
not criminalized; legal
penalties for corruption
crimes weak; rewards for
non-corrupt behavior (even in
highly corrupt contexts) not
provided
Low reporting of corruption
(despite legal obligation to
report; impunity for
self-reporting etc.)
Accessing public services
possible only through corrupt
behavior, or non-corrupt
behavior extremely costly
Little or no knowledge among
target group of relevant
legislation, their rights, or
procedures for seeking redress
Forms of petty corruption
commonly excused or
justified; widespread
perception of fellow citizens
commonly engaging in
corruption; perception of
impunity of corruption crimes
Government, political parties, or
individual politicians widely
seen as corrupt; police and/or
judicial corruption seen as
common; legislative process
not transparent
Autonomy
issues
Normative
Information
effects
Target group unaware of
relevant rule
Social norms
Target group condones
particular corrupt
practices, or believes
infringement of existing
social norm against
corruption is
widespread
Low acceptance/credibility
of law-makers or law
enforcement agencies
as source/enforcer of
obligations
Legitimacy
Source: Weaver (2009), Feldman (2011), and others cited in the text for generic sources of
non-compliance.
77
A. Batory
5. Conclusion
Echoing the subtitle of Pressman and Wildavsky’s (1973) classic study (“Why it’s amazing
that federal programs work at all”), one inescapable conclusion from the overview above
is that it is a miracle if anti-corruption interventions have any effect in Central Eastern
Europe. Citizens have a multitude of reasons not to comply with anti-graft laws, and
relatively few to do comply, on either instrumental or normative grounds.
With respect to incentives, while penalties are in place for a high number of corruptionrelated crimes, all the other elements of credible deterrence are weak or missing. It is rather
unlikely that corruption is uncovered, and therefore that the penalties will ever be applied
due mainly to weak incentives for reporting wrongdoing, either by the perpetrators
themselves – which is after all not surprising – or by others not directly involved. Awareness
of information that would be key for sticks and carrots, or for detection, to work, is often
lacking. There is a not negligible subset of everyday corrupt practices where citizens face
such strong pressure to be corrupt in order to access public services legally due to them that
incentives against bribery are unlikely to have any effect. With respect to normative
motivations too, several factors weaken compliance among citizens in CEE. While most
people condemn corruption themselves, evidence abounds around them that their countrymen do not, or at least not sufficiently, refrain from corrupt practices – thus undermining their own resolve. This is compounded by the fact that those who make or are charged
with the implementation of anti-corruption policy have only weak credibility and legitimacy for imposing binding behavioral norms on society.
Thus, to answer the research question posed at the beginning of the article, anticorruption laws fail in CEE at least in part because they can be expected to elicit only
limited support from the citizens whose behavior they seek to change. For the target
group compliance is not particularly rewarding either materially or normatively and it is
often outright costly, while the broader societal benefits from curbing corruption fail to
be communicated effectively or legitimately. However, to avoid the pitfall of much of
implementation research, that is, to “put the whole blame for any lack of goal achievement on implementation” (Winter 2003, p. 155), it needs to be acknowledged that target
compliance is only one of the explanatory factors for the continuing prevalence of
corruption, and faulty policy design also has much to do with this outcome. Indeed, as
Weaver (2009, p. 9) puts it, “widespread failures of policy compliance may signal that
there is something wrong with the policy, rather than that something is wrong with the
targets who are being uncooperative by failing to comply with it. ” However, even if one
takes a rather dim view of policymakers’ ability (or willingness) to craft “good” laws, a
number of lessons are worth spelling out, assuming that at least some, if limited, change
is possible. Some of these lessons are more actionable than others, but all go beyond the
deterministic view that the legacies of the past make every effort futile.
From the policymakers’ point of view, normative commitment is the ideal source of
compliance in the sense that it does not require the involvement of the state apparatus at
all (Tyler 1990, p. 4). The problem is that the target group’s normative judgments are
extremely difficult, if not impossible, to manipulate within the time frame normally
available to policymakers. Deeply held social norms do not change within electoral cycles
and politicians have little chance to generate legitimacy for their actions, particularly if
the whole of the political class is perceived by the voters to be morally lacking. These are
the reasons why the default policy response is generally deterrence: cost–benefit calcula78
A. Batory
tions are simply easier to influence, particularly through negative incentives, in the short
term. However, the Hungarian experience shows, as many examples showed before, that
simple prohibition and the escalation of penalties do not ensure compliance: for instance,
criminalizing failure to report corruption crimes is at best a symbolic measure in a
context where criminalizing corruption itself shows such limited results.
Nonetheless, a number of common sense policy interventions that neither require
large-scale resource investment nor “systemic change” are (or would be) at the policymakers disposal. First, legislation would need to be better communicated, and the targets
actively informed – this should be possible particularly when the target group is relatively
specific, such as civil servants or lawyers, or by involving multipliers through the media or
civil society organizations. Information campaigns should be part of the process for the
introduction of new rules seeking to curb corrupt practices.
Second, in terms of incentives, there is a need for policymakers to move away from the
almost exclusive focus on sticks and also consider the potential use of carrots. In many
situations rewards for rule conforming behavior may have a greater effect than stiff, but
not consistently applied, penalties for non-compliance. For instance, in the debate prior
to the 2009 adoption of the (to this day, unimplemented) whistleblower-protection
package in Hungary, there had been a proposal to provide a positive incentive to those
disclosing information of public interest in the form of a fee or share of the value of the
public assets recovered (following the logic of the US False Claims Act). Or, to take
another example, the Hungarian Residents Association suggested that doctors who
promise not to accept gratitude payments and by wearing a green badge signal this to
patients should get higher salaries (Népszabadság 7 January 2011). Both proposals were
rejected, even though this type of intervention could send a powerful signal about what
should be considered as appropriate behavior.
Third, and for policymakers probably most controversially, with respect to legislation
that proves to be completely out of sync with social norms, policy reversal or termination
should at least be considered as options. Laws that are patently ignored are worse than not
having a law in the first place, because non-compliance undermines the credibility of the
legal system as a whole. For instance, it should be recognized that gratitude payments are
deeply ingrained and relatively widely accepted in the health care system, and therefore
they will not go away in the visible future. Turning a blind eye while condemning the
practice does nothing to improve the situation for patients. In line with Rose-Ackerman’s
(1999, pp. 92–93) recommendation, allowing doctors to charge legal fees for particular
services would at least make some of these payments transparent and taxable (a shortlived attempt in Hungary to do this did not have sufficient time to produce significant
change).
This overview of compliance issues in corruption control paints a dark picture of
Hungary in particular. Unfortunately, there is little reason to believe that the situation is
significantly better in other CEE countries, or indeed some of the longer-standing EU
member states where corruption is a fact of everyday life. More comparative empirical
work is clearly needed to, hopefully, disprove this pessimistic conclusion. Nonetheless,
what this discussion demonstrates is that understanding why those whose behavior laws
aim to change do or do not act in conformity with the rules can generate important
insights for crafting more effective corruption control efforts internationally. In conceptual terms, this is also to say that an explicit target compliance perspective, applied in
addition to policy design and implementation factors more commonly employed in the
79
A. Batory
literature, should be seen as a promising avenue for further research on corruption
control and indeed for explaining policy failure more broadly.
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