Breaches of Integrity

The Integrity and Prevention of Corruption Act (IPCA) contains a clear definition of the term “integrity”. In the event of a suspicion of a breach of integrity as defined, the Commission for the Prevention of Corruption (the Commission) may conduct a procedure pursuant to Article 13 of the IPCA and issue findings on a specific case.

Throughout their activity, all public-sector entities are obliged to follow not only individual legal norms but also the purpose and objectives of the laws. The IPCA strives for the strengthening of the integrity and trust in the legal order and the rule of law, as well as for the prevention of corruption. The purpose of the Act is therefore ensuring a high degree of efficiency in preventing corruption, enhancing transparency, and strengthening integrity, which are the fundamental conditions for legal, successful, transparent, purposeful, and honest functioning of the State. These goals ought therefore to be pursued by everyone, but most of all by the highest power holders. The foundation of these values is certainly embodied in ethical action and the example set by officials and other power holders by their example as special care for and duty of eliminating risks and strengthening the integrity of the public sector is expected of them.

Integrity means the conduct and responsibility expected of individuals and organisations in the prevention and elimination of risks related to the use of any authority, office, mandate or any other decision-making power contrary to an Act, legally admissible objective or code of ethics.
(Point 3 of Article 4 of the IPCA)

A guide on the suspicion of the breach of integrity

Real-world cases considered by the Commission suggest that a suspicion of the breach of integrity may apply in the following cases:

  1. if there is a breach of other sectoral regulation (violation of due conduct or omission of due conduct) and there is no other primarily competent body to act upon the breach;
  2. if there is a breach of other sectoral regulation or the IPCA and there is no provisioned sanction for the breaches detected, e. g. in case of elected officials;
  3. if there is a breach of other sectoral regulation or the IPCA which constitutes a systemic problem, or conduct which has been identified as objectionable in several other cases, while its discussion follows the principle of raising awareness and the establishment of the standards of acceptability and consideration of particular conduct in the broader society;
  4. if a suspicion of a criminal offence considered by law enforcement authorities in the pre-trial stage has concluded with a report but the Commission considers such conduct to be contrary to the integrity expected of individuals or organisations;
  5. if there is a breach of other sectoral regulation or the IPCA and the regulatory bodies or the founder of the entity fail to react;
  6. if there is conduct not expressly prohibited or permitted by regulation but is ethically, morally or societally objectionable and as such may also be subject to codes of ethics.

A code of ethics as a collection of moral rules may represent a source of denotation of the term “integrity” in accordance with Point 3 of Article 4 of the IPCA. As the Commission refers to a specific code of ethics, it is to be understood as an augmentation of the subject matter of the legal definition of integrity in a specific case so as to showcase the expected conduct by the person subject to the proceeding holding a public function inasmuch said conduct is regulated by a code the purpose of which is to set standards of action and conduct of officials, public employees, and other persons as they discharge their function or perform their work in the course of the duration of their mandate or employment.

Real-life examples of breaches of integrity

The definition of conduct not expressly prohibited or permitted by regulation yet contrary to expected integrity is based on conduct detected in real-life cases discussed by the Commission. The definition of such deviant conduct may in the future be amended. Informed by breaches of integrity discussed in the past, conduct contrary to expected integrity includes:

  • lies and deception by an individual (an official person as per the IPCA) in proceedings before their employer, an official body, or the general public;
  • granting the power of attorney to a law firm already representing the body in which the official discharges their function, particularly when the official person is represented in proceedings relating to the discharging of their function;
  • undue or illegal influence on the work of bodies and official persons, and interfering in their competence;
  • favouring a specific bidder and thus enabling unequal treatment of bidders;
  • work lacking due diligence and professionalism performed by official persons who unquestioningly accept instruction from unauthorised persons without competence to conduct and decide in specific proceedings, thereby also failing to act in accordance with codes of ethics;
  • exercising unlawful, unethical, or political influence on persons taking part in appointment, recruitment, and employment procedures;
  • misuse of powers and competences and interfering in the competences of other bodies/entities/persons and making any proposals and suggestions to competent bodies, or issuing any instruction for a task or work to be performed without due regard to established rules;
  • conduct and manner of work by official persons (holders of public office, officials in managerial positions and other public employees, employees of the Bank of Slovenia, managers, and members of the management and supervisory boards of public sector entities) which represent a deviation from proper operation of public-sector entities and thus raise doubt regarding fairness, lawfulness, impartiality, objectivity, and transparency of the public-sector entity’s work, causing a decline in the trust in the work of public-sector bodies.

Case law

In its judgement no. I U 289/2018-20 of 21st May 2019, the Administrative Court of the Republic of Slovenia clearly stated that the definition contained in Point 3 of Article 4 of the IPCA leaves no doubt regarding the meaning of integrity, which further allows for a logical and rational conclusion as to its breach, i.e. conduct contrary to the said definition, rendering a separate definition of the term “breach of integrity” unreasonable or at best superfluous.
In its judgement, the Court also stated that the Commission was correct in concluding that the conduct of the person in question constituted a breach of integrity when it established that the conduct of the person in question as a holder of public office had not been in accordance with expectations and responsibility (in the prevention and elimination of risks) being that the said person had not acted in accordance with an Act, legally admissible objective, or code of ethics (Point 34 of the judgement in question).

In reference to the notion of integrity, the Administrative Court of the Republic of Slovenia also stated in its judgement no. I U 1726/2019-10 of 17th September 2020 that the legislator was deliberate in underdefining the terms “expected conduct” and “integrity” so that they may be notionally developed by the Commission (Point 16 of the judgement in question). The case in question relates to a breach of integrity in connection with the procurement of legal services, a matter on which the Commission had already adopted a principled opinion.

The Court wrote that pursuant to Article 13 of the IPCA, the Commission is competent to adopt principled opinions. According to Paragraph 6 of the said Article, these are principally disclosures of and considerations on systemic shortcomings, inconsistencies, and problems with proposed measures to improve the situation. Referring to Sistemsko načelno mnenje glede nedovoljenih praks v javnem sektorju pri najemanju odvetniških storitev (Systemic Principled Opinion on the Prohibited Public-Sector Practices in Procuring Legal Services) no. 06269-2/2012/1 of 3rd July 2012, the Court adopted the position in the said matter stating that the Opinion represents the Commission’s explanation regarding the legal norms on the expected conduct of official persons (in the prevention of risk for the occurrence of the conflict of interest) and their integrity.

The Court further states that it considers the Commission’s Principled Opinion rational and logical in that there is indeed a possibility of the conflict of interest in the circumstances in which the official person and the body whose representative they act as share the same lawyer, and particularly so when the legal representation of the official person is sought in a proceeding relating to the discharging of their function. On account of the reasons stated, the Court believes that as long as the substantive law is applied correctly, the consideration that the given conduct constitutes a real risk of the conflict of interest occurring is sufficient being that such conduct is contrary to the integrity expected of the office.

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