Topics in Anti-Corruption Law: What Does Kosovo Teach Us About Using Human Rights Law to Prosecute Corruption Offences?

Bryane Michael, Stockholm School of Economics and

Habit Hajredini, Independent Expert on Human Rights and Anti-Corruption

 

 

Introduction. 2

Is Corruption a Violation of an Individual’s Human Rights?. 3

A Review of Anti-Corruption and Human Rights Law.. 8

The Missing Link: When Human Rights Violations Lead to Corruption. 12

Suing for Human Rights in Corruption-Related Cases. 20

How to Handle “Human-Rights Enhancing” Corruption: The Living Wage and Vicarious Liability Doctrines  27

Concluding Remarks. 33

 

 

 

Abstract

 

If a patient must pay a bribe to obtain life-saving surgery, does the doctor’s solicitation of a bribe represent a violation of the victim’s human rights? This paper explores the ways in which anti-corruption practitioners can look to various provisions in human rights law in order to prevent or prosecute corruption-related offences. We use Kosovo as a case study because its constitution gives direct effect to the major international human rights conventions. We find -- using Kosovo as a case study -- that some types of corruption lead to separately prosecutable human rights offences. We also find that pre-existing violations of human rights law create strong incentives for individuals to engage in corruption. We offer concrete suggestions to lawyers and prosecutors for using human rights provisions to encourage the prosecution corruption offences in highly corrupt countries like Kosovo. We also present a method of prosecuting human rights offences leading to – or resulting from – corruption as administrative offences and offer pricing models for assessing the optimal fine for the human rights offences occurring concomitant with cases of corruption.  

 

 

 

 

 

 

 

Disclaimer: This paper reflects the views of its individual authors as a (liberal) contribution to the marketplace of anti-corruption ideas. The views expressed in this paper do not represent the views of the organisations for which the authors work.   

 


Topics in Anti-Corruption Law: What Does Kosovo Teach Us About Using Human Rights Law to Prosecute Corruption Offences?

Bryane Michael, Stockholm School of Economics and

Habit Hajredini, Independent Expert on Human Rights and Anti-Corruption

 

Introduction

 

International organisations and other agencies have increasingly claimed that anti-corruption represents an important human rights issue. The Office of the United Nations High Commissioner for Human Rights specifically define “human rights defender” as “a politician who takes a stand against endemic corruption within a Government is a human rights defender for his or her action to promote and protect good governance and certain rights that are threatened by such corruption.”[1] Human rights litigators have yet to test whether they can use provisions from anti-corruption law in defence of human rights. However such a test, by litigation from a victim of corruption or even a disgruntled civil servant who argues he was coerced into taking bribes, will certainly be tried in the upcoming years. As scholarly work draws ever closer links between corruption law and human rights law, lawyers and prosecutors will certainly test particular theories of human rights which endow upon all citizens the right to “good governance” (and specifically rights contained in anti-corruption legislation). How will these legal practitioners use existing law to build such cases? How should judges – particularly in the administrative courts where most service delivery cases are heard – interpret the standing, substantive rights and potential damages in such cases?   

 

This article provided an overview – using Kosovo as a concrete case study – of the issues which lawyers, prosecutors and judges will have to grapple with as corruption cases increase crawl into the realm of human rights law. We find that ambitious human rights activists can use particular provisions from human right law during the prosecution of corruption cases. The first section of the paper asks whether corruption constitutes a violation of the victim’s human rights (as defined in law). We use the section to present some of the background, provide critiques of existing studies and develop the analytical tools we will rely upon in the rest of the paper. The second section presents anti-corruption and human rights law from our case study country – Kosovo. The third section uses the law we present to argue that corruption does not necessarily lead to human rights offences (as often assumed in the literature). Instead, lack of observance of human rights in many spheres of public sector activity, provide the incentives leading to corruption. The fourth section describes various strategies which litigators might rely upon in order to prosecute corruption cases as (or concomitant with) human rights offences. While many of these examples may seem to stretch the use of Kosovo’s legal provisions, such illustrations provide a roadmap for the types of strategies which litigators may try in the upcoming years. The final section summarises and concludes by providing observations on areas for further research.


 

Is Corruption a Violation of an Individual’s Human Rights?

 

Several authors claim a direct relationship exists between corruption and human rights. However, the nature of such a supposedly direct relationship remains far from clear. For example, Dr. Magdalena Sepulveda at the International Council on Human Rights Policy (ICHRP) notes that “in numerous ways...corruption encourages discrimination, deprives vulnerable people of income, and prevents people from fulfilling their political, civil, social, cultural and economic rights.[2] Thusitha Pilapitiya, an analyst for the United Nations Development Programme, notes that “corruption can directly affect rights at a macro level and a micro, local level.”[3] Indian legal scholar, Raj Kumar provides one of the most strident attempts to link corruption and human rights; daringly arguing that, “in India, corruption attacks the fundamental values of human dignity and political equality of the people and hence there is a pressing need to formulate a fundamental human right to corruption-free service.”[4] Human rights officials increasingly echo Dr. Kumar’s sentiments. In a 2009 speech, Council of Europe Commissioner for Human Rights Thomas Hammarberg stated simply “corruption is a major human rights problem.”[5]

 

In order to draw links between corruption and human rights, these authors propose a number of frameworks. In Sepulveda’s case, she argues that states have the obligation “to respect”, “to protect” and “to fulfil” human rights.[6] When corruption interferes with these obligations, then the state is guilty of failing to protect human rights. In Pilapitiya’s case, she notes that corruption may be “linked” to human rights through “express linkages to rights, accountability, empowerment, participation, and non-discrimination and attention to vulnerable groups.”[7] Neither author defines exactly which law the state breaks (other than in the most general terms and relying mainly on international conventions). Neither author defines their categories – other than by using specific examples as illustrations. Neither author satisfactorily defines the link between corruption and human rights.

 

Corruption leads to human rights violations, but does not (immediately and for the purposes of litigation) cause them. Consider the following example, taken from Kosovo in order to provide an introduction to the key case country covered in this paper. In 2005, Petrit Selimi entered a Pristina hospital for an unspecified condition.[8] According to Mr. Selimi, the guard demanded €10 to let him enter the hospital. Subsequently, the doctor required a €5 bribe to see him. Figure 1 shows the facts of such a case, and the law applicable in the case.[9]  The case, at least in theory, involves five separate legal infractions. A pre-existing inequality or deficiency in the effective exercise of rights lead to a situation where Mr. Selimi could be extorted for a bribe. Mr. Selimi paid a bribe, which resulted in his receiving preferential medical treatment. His preferential treatment necessarily implies that other patents receive lower level of quality care than Mr. Selimi. Failing to detect the bribery offence represents, itself, potential negligence. Once the story aired on television, lack of a conviction for bribery likely reflects further corruption (or negligence) in the police and court systems.  

 

Figure 1: Rights-Based Analysis of Bribery in Health Sector

 

facts

Pre-existing inequality in health service

Bribe solicitation

Preferential treatment of bribe payer

Discriminatory under-treatment of non bribe payer

Non-detection of offence

Detection but non-prosecution (possibly from futher bribery)

law

institutional violation of provisions in administrative law

first part of offence in violation of anti-corruption or criminal law

second part of offence in violation of anti-corruption or criminal law

individual violation of provisions in administrative law

institutional offence by police

offence in violation of anti-corruption or criminal law

Source: authors.

 

This simple example illustrates that the corruption offence represents a separate offence – and is litigated separately -- from the human rights offence. Simply put, corruption does not cause a violation of an individual’s human rights – it exacerbates (or attenuates) such human rights violations.[10] When Mr. Selimi’s doctor appears in front of a judge, he could tried for two offences. First, he will be tried for a violation of the particular provision in the anti-corruption law or criminal code – almost always forbidding the use of public power for private gain. Second (though much more rarely), he will – or at least should -- be tried for the human rights offence.[11] However, in practice, the lack of enforcement powers prevent wide-spread protection for human rights – except in egregious cases involving gross violations of a person’s right to life or liberty.[12]

 

Some might wrongly view the corruption offence as the specific instance of the violation of the general human rights principle (namely the corruption victim’s right to impartial service provision). Anti-corruption legislation, in most countries, starts with a preface section providing “principles” (of which non-discrimination features prominently). For example, in our case country of Kosovo, the anti-corruption law states in article 4.1, that, “everyone has the right to an equal approach in the performance of activities of public interest and equal treatment on the part of official persons.”[13] Skeptics might view article 4.1 as the human rights principle that represents the substantive obligation enshrined in the Constitution and leads to the legal basis for the anti-corruption law.

 

However, clearly the elements of discrimination can be separated from the corruption case. In Mr. Selimi’s case, the doctor takes a bribe – violating art. 3 of the Suppression of Corruption Law.[14] The doctor also practices “direct discrimination” (as defined in article 3a of the Anti-Discrimination Law) and can be sanctioned with fines from €500 to €10,000 or other sanctions as defined by article 9.[15] The Ministry of Health has delegated discretion to the doctor which resulted in a violation of the terms of that delegation (under art. 5 of the Administrative Procedure Law).[16] Such multiple harms represent one reason (among many) why corruption particularly and negatively affects society.

 

Separating the corrupt act into two (or more) offences opens the possibility for pursuing the public official’s institution for human rights violations. In the administrative law of most countries, any administrative offence (of which the human rights offence consists) will usually consist of two offences – one committed by the individual and one by the institution for which the civil servant works.[17] Figure 2 shows the way in which liability for the ensuing human rights infraction can be allocated resulting from the particular case of bribery mentioned previously.[18] In this example, the doctor commits two violations of human rights enshrined in the Constitution – guarantee to health equality before the law. However, the doctor’s managers and the Ministry of Health – responsible for overseeing the doctor – have also possibly committed offences. The Administrative Procedure Law specifically ensures the guarantee of principle of legality (art. 3), principle of balancing the public and private interests (art. 4), principle of equality before the law (art. 5), principle of proportionality (art. 6), principle of objectivity and impartiality (art. 7), the principle of sustainability and predictability (art. 8) and the principle of publicity (art. 9).[19] In most administrative law, fault is separated into fault of the institution and irresponsibility of the individual.

 

Figure 2: Allocation of Liability for the Violation of Human Rights

 

 

Human Rights Violation

Remedial Action

Ministry of Health

Policy leading to doctor’s violations of various human rights.

Most likely, censure or recommendations from Ombudsman. Possible addition liability to rectify damages from illegal action.

Hospital

Contributory negligence for not monitoring the doctor. Likely violations of art. 3-9 of the Administrative Procedure Law.

Initiation of an administrative procedure as per Part IV of the Administrative Procedure Law. Possible rectification of the illegal act (as per the Administrative Procedure Law).

Doctor

Violates right to health (art. 51 of the Constitution) and right to non-discriminatory access to public services (equality before the Law as stipulated in art 24 of the Constitution).

Administrative or disciplinary penalties (apart from and not withstanding the corruption charge)

 

Corruption serves as a contributory factor in the commission of human rights offences. However, as Mr. Selimi’s case illustrates, the relationship between human rights offences and corruption is more complex that corruption simply “causing” human rights offences. A pre-existing inequality in access to medical care had to exist in order to give Mr. Selimi’s doctor (and Mr. Selimi) the incentive to pay a bribe. Moreover, Mr. Selimi clearly had to lack recourse to justice institutions – like the police and courts. Otherwise, he could costlessly and credibly threaten the hospital guard and doctor with enforcement actions against them. Figure 3 provides a general summary of the human rights offences concomitant with a corruption offence. From a practical point of view, we propose to categorise the effect of corruption on human rights by whether such corruption precedes, occurs during or after the human rights offence itself.

 

 

 

 

 


 

Figure 3: Ways in Which Corruption Comprises a Contributory

Factor to Human Rights Violations

 

Stage

Description for Public Services

Description for Exercise of Civil Rights

Before  the HR violation

unequal access

Briber pays to get preferential treatment in health, education, court, security (police) or other government services.

Briber pays for unequal access to political markets or the benefits arising from those markets. Briber may pay for exemption from particular laws.

During HR violation

preferential treatment (use)

Briber pays to get better or differential use of public resources or services.

Briber pays for preferential treatment in courts or public fora (such as going free after committing a crime).

After HR violation

lack of effective access to justice institutions

 

Briber pays police, courts to cover up crime or gain unusual service. Lack of recourse to police and courts makes actual corruption more profitable.[20]

Briber pays prosecutor or judge to drop case, ensuring his liberty. 

Source: authors. HR refers to Human Rights. The figure divides rights in public service rights (entitlements from government) and other (civil) rights endowed by most constitutions.

 

From a litigator’s point of view, corruption exacerbates particular human rights violations depending on whether such corruption occurs before, during or after the human rights violation itself.[21] In Mr. Selimi’s case, his bribe allowed him to receive unequal access to medical care. The corruption offence preceded the human rights offence, of his obtaining the right to care. The bribe did not pay for a better level of care. The bribe did not pay for improving any part of the care, when care had commenced. Mr. Selimi also did not pay bribes – as far as we know – to the police or judges to prevent them from rectifying his unequal access. Dividing cases like Mr. Selimi’s according to the particular points of law they touch up helps enormously in untangling the chicken-and-egg problem governing the link between corruption and human rights.


 

A Review of Anti-Corruption and Human Rights Law

 

Kosovo anti-corruption law tells us a lot about law in many other countries.[22] Kosovo legislation adopts the major provisions extant in major international conventions in both the anti-corruption and the human rights areas. Kosovo’s anti-corruption law adopts the major provisions from the UN Convention Against Corruption – specifically the criminalisation of corruption and the seizure and restitution of assets resulting from corruption.[23] Kosovo also ratifies – and incorporates into its domestic law – provisions from the Council of Europe’s Criminal Law Convention and Civil Law Convention.[24] Such ratification consists of two pieces of the legislation – the Kosovar Criminal Code. and the Suppression of Corruption Law.

 

Kosovo’s anti-corruption legislation rests on two acts. The first – the Kosovo Criminal Code – contains provisions criminalising bribery and the traffic of influence. Article 343 criminalises the accepting of bribes and article 344 criminalises the offering of bribes.[25] Other provisions – such as article 345 restricting the trade in influence – tackle other areas of anti-corruption law. The second piece of legislation – the Suppression of Corruption Law – reiterates (and defines in more detail) the offences likely to lead to criminal prosecution. However the Law contains a number of “vanguard” provisions which have entered into “best practice” of anti-corruption law, but are not in the anti-corruption conventions themselves. These two practices are asset declarations and conflict of interest statements.[26]

 

Kosovo human rights law also tells us a lot about human rights law in many other countries. The Kosovar constitution provides one of Europe’s most progressive human rights legal frameworks.[27] The Kosovar constitution gives direct effect of a number of international human rights conventions. Article 22, titled “direct applicability of international agreements and instruments” notes that six international human rights conventions are “directly applicable in the Republic of Kosovo, and in the case of conflict, have priority of provisions of laws and other acts of public institutions.” These conventions include the Universal Declaration of Human Rights, the European Convention for the Protection of Human Rights and the International Covenant on Civil and Political Rights and its Protocols among others.[28] The constitution further gives primacy to the case law consistent with the European Convention for the Protection of Human Rights. Article 53 of the Constitution specifically authorizes that “human rights…shall be consistent with the court decisions of the European Court of Human Rights.”[29]

 

Corruption very likely adversely affects the enjoyment of numerous human rights provisions contained in Kosovar law. Figure 4a provides a summary of these arguments – divided into four categories based on the type of human right whose enjoyment bribery would affect.[30] The affect on some of these rights can be extremely large. For example, journalists have highlighted that political corruption in recent elections have resulted in large scale abstentions from voting in local elections.[31] The resulting human rights offences committed by these corrupt politicians could well span the gambit of the human rights offences listed in Figure 4. In most cases, these human rights violations (like most human rights violations) will never be prosecuted in any Kosovo court (even if the predicate corruption offence is successfully prosecuted).

 

However, the literature does not – and rarely dares not – discuss how corruption can help defend individuals’ human rights. Mr. Selimi – as we saw from our first example – used bribery in order to prevent a human rights violation (restriction of his right to medical care). He could not rely upon Kosovo police and courts to protect this right (otherwise he would have saved some money by resorting to these two institutions). While corruption undoubtedly results in a social harm (and an illegal activity), two-wrongs (in the real world) do make a right – at least for the individual involved. As pop economist James Surowiecki notes, wide-spread corruption can help individuals protect their (economic) rights in a system plagued by red tape and incompetence.[32] 

 


 

Figure 4a: How Does Corruption Result in Human Rights Violations?

 

Human Right

Use of Corruption to Mitigate Right

 

 

Common Rights

Equality before the Law (art 24)

Involving the very definition of corruption as the use (or abstention from the use) of public power for private gain. Almost always violated when bribe is paid (except in rare cases where bribe used to correct existing injustice as discussed below).

Freedom of Property (art. 46)

Probably most common violation – property rights imperilled with bribery for privatizations, licences, etc.

Freedom of Elections (art. 45)

Bribery used to sabotage candidates’ campaigns. Bribery of vote counters can influence election’s outcome.

Right to Education (art. 47)

Bribery for class placements or grades.

Right to Work (art. 49)

Bribery for jobs represents the most obvious example.

Health and Social Protection (art. 51)

Bribes of doctors for medical treatment.

Environmental Rights (art. 52)

Use of bribery to engage in otherwise unauthorised activities like cutting down trees in a protected area or dumping industrial waste.

Access Public Documents (art 41)

Bribes to obtain release of confidential documents, bribes to destroy documents which are supposed to be released into public domain.

Freedom of Media (art. 42)

Bribery to report scandal or to cover-up a story.

Rights Affected Usually During War or in a Failed State

Right to Life (art 25)

Bribes used for government security forces to assassinate victim (particularly in Latin America). Also used to convict innocent people to legally endorsed death sentences (where death sentences still exist).

Prohibition of Torture (art. 27)

Bribes used to convince security forces to mistreat prisoners (or to convince these forces not to torture an individual already in custody).

Prohibition of Slavery (art 28)

Bribes used to facilitate human trafficking or non-compliance with labour laws which protect the most vulnerable workers.

Right to Liberty and Security (art 29)

Harassment for bribes in exchange for liberty (traffic police being an obvious example).

Judicial Rights

Rights of the Accused (art 30)

Police soliciting bribes to treat accused fairly.

Right to a Fair Trial (art 31)

Guilty defendant bribes court officials to ignore rules of evidence or to decide in a particular way.

Right to Legal Remedies (art 32)

Court individuals pay bribes for bailiffs to enforce judicial decisions (or thwart such enforcement).

Legality and Proportionality in Criminal Matters (art. 33)

Litigant pays bribes in order to increase or decrease remedies applied in a particular case.


 

Uncommon Violations

Human Dignity (art 23)

A difficult right to define and test judicially.

Children’s Rights (art. 50)

Corruption rarely affects children directly. Corruption affects children through their parents – as doctors, teachers and government administrations withhold services to children in the expectation that parents will pay.

Freedom of Art and Science (art. 48).

Few cases of corruption used to hinder or facilitate the artistic expression of academics or artists.

No Judging Twice (art. 34)

Rare, even in failed states, for someone to be tried twice for the same offence.

Freedom of Movement (art. 35)

Most credibly can be applied to police and customs. Law enforcement officials threaten detention (or preventing passage across a border) while seeking bribes. 

Right to Privacy (art. 36).

Bribery to obtain access to confidential information held by government agencies.

Freedom of Belief and Religion

Corruption used to favour particular groups, though rarely reported that officials sought bribes to allow particular groups to practice the observance of their beliefs.

Freedom of Expression (art. 40)

Most often corruption affects the denouncing of particular crimes in the media (such as corruption).

Freedom of Association (art. 43).

Rare in practice; bribery to prevent denial of meeting authorizations.  

Source: The human rights referred to in the figure derive from articles of the Kosovo Constitution. The authors provide the interpretations as to how corruption affects the enjoyment of each right (based on the literature reviewed in the main body of the article). Common Rights refer to rights which corruption perceptions surveys consistently signal as particularly vulnerable to corruption. Rights Affected Usually During War or in a Failed State refers to human rights whose defence normally becomes unpredictable during major social turmoil (like during Kosovo war of 1998-2007). Judicial Rights refer to rights exercised during a trial or judicial proceedings. Uncommon Violations refer to offences which rarely appear as problems in corruption perceptions surveys.

 

Individuals (sometimes and under specific conditions) use corruption to protect their human rights when they can not ensure the predictability of the protection of their human rights. Figure 4b lists ways that individuals attempt to use bribery or other forms of corruption in order to help ensure the protection of their (perceived or actual) human rights. Clearly, in most cases, individuals use corruption to sanction the violation of human rights. For example, media stories claim that the chief prosecutor -- Pjeter Prapi – dropped two high profile cases involving theft and rape because of corruption.[33] Yet, individuals – particularly when obtaining access to basic public goods and service – use corruption to “even the playing field.” Mr. Selimi, for example, clearly relied on his €10 bribe in order to help ensure the protection of his right (or necessity) to health. In the next section, we look at many of the ways in which pre-existing human rights deficiencies lead to incentives causing corruption.

 

 

 


 

 

Figure 4b: How Does Corruption Protect Against Human Rights Violations?

 

Human Right

Use of Corruption to Protect Right

 

 

Common Rights

Freedom of Elections (art. 45)

Political candidates disadvantaged by corruption must pay bribes to obtain enforcement of various electoral laws.

Freedom of Property (art. 46)

Holders of various property rights – from licences to motorists holding cash – pay an unauthorised “tax” in order to avoid greater affronts to their property.

Right to Education (art. 47)

Qualified students find themselves in a type of arms-race – paying bribes to receive placements in classes which they would normally receive without bribery from less qualified competitors. Must also pay to increase school’s resources (which government fails to provide).

Right to Work (art. 49)

Qualified workers must compete for jobs with both skills and bribes.

Health and Social Protection (art. 51)

Patients must pay bribes to make up for lack of resources in medical sector.  

Environmental Rights (art. 52)

Use of bribery to protect pre-existing claims to land or other property.

Access Public Documents (art 41)

Must pay bribes to obtain information which the individual would normally have access to.

Freedom of Media (art. 42)

Bribery to prevent capricious regulation or enforcement of such regulation.

Source: Articles from Kosovo Constitution, while interpretations belong to the authors. We list on Common Rights from Figure 4a as the Figure is illustrative rather than comprehensive. We do not endorse the use of corruption as a defence of human rights.

 

The Missing Link: When Human Rights Violations Lead to Corruption

 

Does wide-spread lack of enforcement of human rights lead to corruption in various areas of government services and activity? In the previous section, we showed how corruption does not “cause” human rights violations. Corruption can – and often does -- lead to subsidiary human rights offences. In Mr. Selimi’s case, his bribe resulted in less access to emergency medicine available to other patients. We also showed how corruption can rectify such human rights abuses – as individuals like Mr. Selimi must pay bribes to obtain to the services for which he has a legal right. The payment of a bribe helps Mr. Selimi defend his human rights – though such a payment will make a similar defence more difficult later (both for Mr. Selimi and for his fellow citizens). But would Mr. Selimi need to pay the bribe if he could perfectly exercise his legal rights to medical care?

 

Mr. Selimi’s de facto inability to exercise his human rights resulted in the incentive to pay a bribe. More generally, wide-spread inadequacies in the definition and enforcement of human rights create incentives for corruption. Most authors writing about the link between corruption and human rights highlight the role corruption plays in the judiciary, preventing the enforcement of other human rights. For example, UNDP analyst Thusitha Pilapitiya (whom we cited previously), argues that “corruption in the judiciary and law enforcement defeats the whole purpose of [human rights] principles by overlooking criminals and their activities against society in general, and affecting disadvantaged groups in particular.”[34] Most of her peers reflect this view – focusing on corruption in the judiciary. They are unable to separate out cause-and-effect as well as fully discuss human rights in other sectors apart from the judiciary.

 

By analysing each of multiple legal rights involved in a particular corruption case – as the case proceeds from start to finish, we can better understand the relationship between corruption and human rights. Figure 5 shows the various rights involved in a case like Mr. Selimi’s – as the case moves from the health sector to the judicial sector and back. In this example, an individual – like Mr. Selimi – pays a bribe for medical treatment. The bribe succeeds in helping the briber obtain quick and efficient treatment. Let us assume that a court case arises from this incident – either as the briber attempts to sue for corruption (because he was extorted) or another patient sues for being treated late. As in the health sector, preferential access to justice must be present in the courts – otherwise, no incentives for bribery would exist. A bribe paid to a prosecutor (to drop the case) or to a judge (to find against the bribee) would result in a continuation of the status quo.

 

Figure 5 illustrates a number of salient points about the link between the human rights and corruption. First, differential access must be the pre-condition for corruption. Without such differential access, Kosovars would have no incentive to pay bribes to doctors – or subsequently during litigation. Second, without pre-existing wide-spread lack of enforcement of human rights in other sectors of the public administration, corruption in the judiciary would have little effect on the rest of the public sector. Many commentators erroneously place the emphasis for corruption in the judiciary as the source of wide-spread human rights violations. Third, many factors other than corruption lead to the inadequate enforcement of human rights, but the inadequate definition and enforcement of rights always leads to incentives to engage in corruption.[35] As we discuss below, bribery reflects arbitrage payments – between individuals who possess particular rights and those who do not. If all individuals possessed well defined and enforced human rights, then arbitrage in these (human) rights could not exist.

 

Systemic and wide-spread human rights deficiencies cause corruption. Figure 6 shows how the deprivation of particular human rights leads to the creation of incentives to engage in corruption.[36] When students possess or use differential rights to education, the opportunity for corruption becomes rampant. For example, former student at Pristina University, Petrit Hysaj, bitterly complained about the lack of attention teachers pay to their students… leading to incentives for corruption by him and his peers.[37]  He lacked the same education as in many other universities. The lack of particular human rights related to access to work opportunities also influence corruption in the education sector. In the same article, Fitim Gllareva, an applicant for a teaching job at Pristina University, blames her inability to obtain a teaching position on wide-spread nepotism. She notes that, despite a well-recognised degree from a German university, she could not obtain a position with political connections and/or payments. In Ms. Gllareva’s case, the University failed to protect her right to work (assuming she was more qualified than her competitors). Corruption resulted from the University’s wide-spread non-observance of human rights principles which resulted in her being overlooked for a job.[38]

 


 

 

Figure 6: How does Systemic Human Rights Deprivation Lead to

Incentives to Engage in Corruption?

 

Systemic Deprivation of Right

Creation of incentives to engage in corruption

 

 

Common Rights

Freedom of Elections (art. 45)

Differential electoral rights distorts incentives for all strategic decisions taken by public official. Encourages use of corruption as competitive resource.

Freedom of Property (art. 46)

Differential property rights prevent economic agents from making consumption, investment or other economic decisions. Makes corruption key way of allocating resources.

Right to Education (art. 47)

Asymmetric rights to educational services create arbitrage opportunities using bribery.  

Right to Work (art. 49)

Asymmetric rights during job selection process create arbitrage opportunities using bribery. Government’s ability to create jobs also creates incentive to use bribery to increase supply of jobs.

Health and Social Protection (art. 51)

Asymmetric rights to health services create arbitrage opportunities using bribery.  High price and income inelasticity of demand – as well as large incentives to dis-save to pay life-saving bribes.

Environmental Rights (art. 52)

Asymmetric rights to environmental services create arbitrage opportunities using bribery. Transactions costs (cost of collecting information about infringements) can make corruption highly lucrative.

Access Public Documents (art 41)

Differential access to public documents (or complete privation of access) create incentives to buy or trade information.

Freedom of Media (art. 42)

Restrictions on media rights increase returns to corruption by lowering probability of detection of corruption.   

Rights Affected Usually During War or in a Failed State

 

Given large-scale weaknesses in the public sector, tinkering with marginal improvements in the enforcement of human rights unlikely to significantly affect the level of corruption in a public administration.

Judicial Rights

Judicial sector inefficiencies serve to increase the profitability of corruption in other sectors (as well as in justice sector).

Uncommon Violations

 

These rights are difficult to define and test judicially (such as human dignity, art 23 for example) and are rarely observed (hindrances to freedom of expression or marriage). Impact on corruption likely to be small.  

Source: Articles from Kosovo Constitution. Each explanation derives from various economic studies of corruption as cited in the text.

 


 

Economic analysis – as well as legal analysis – also strongly suggests that inadequate enforcement of human rights across the public sector comprises the proverbial egg leading to the chicken of corruption.[39] Figure 7a repeats the standard analysis depicted in much of the corruption literature.[40] The Figure shows the typical marginal cost and marginal benefit curves for providing medical services. When policy or other restrictions prevent access to health – individuals seek to use illegal methods of expanding the supply of service to equal the demand. Individuals seeking medical care have every incentive to pay bribes to doctors (or middle men who seek to intermediate in this market). Figure 7a shows the amount of the bribes paid in informal markets by the blackened triangle which we have listed as corruption rents. Administrative restrictions or inefficiencies create constraints in these markets which lead to bribery.[41]

 

 

Explanations relying on corruption as main explanans for human rights violations remain unconvincing. Almost all authors writing on the subject use everyday experience and specific cases to illustrate how corruption leads to human right violations. Rigourous tools of analysis can not explain (and thus predict) how corruption leads to the wide-spread lack of enforcement of human rights. Figure 7b provides an example of how economic analysis might try (though fail) to show how corruption leads to human right violations – in effect reversing the explanation found in Figure 7a. Any explanation must use the level of corruption as an independent variable – which we show on the x-axis. To make the model reflect the intuitions of the model builders, the level of health service provision should decrease as corruption increases. Theory does suggest that health service should deteriorate as corruption increases. Amenity decreases as patients run around the hospital looking for people to bribe, ways of arranging illicit payment, ways of ensuring the doctor’s performance and so forth. We plot such decreased amenity as the downward sloping line in Figure 7b. On the other hand, corruption clearly allows for preferential access to medical care – something desired and valued by potential patients living in a country where hospitals can not receive sufficient resources. We represent such preferential access to health care as the upward sloping line in the Figure. Individuals pay bribes to the extent that they desire (or require) greater value in their consumption of health services.

 

The reader will find the attempted explanation portrayed in Figure 7b both confusing and unconvincing. In the Figure, we show the legally guaranteed level of amenity and compare that level with the equilibrium level of service when individuals must pay bribes. The Figure predicts the clearly counter-intuitive result that patients must pay fewer bribes in order to receive better care. While we do not show the analysis in the Figure, the reader will notice that the legally guaranteed level of amenity can be obtained only by increasing the overall vexation at paying bribes (represented shift shifting the “decreased amenity” line to the right) or by reducing preferential access (shifting that line to the left).  Both policies intuitively would hardly increase overall welfare.

 

The limited data on the relation between human rights and corruption tend to (very weakly) support the view that public sectors which protect the human rights of their citizens tend to correlate with governments whose officials do not generally take bribes. Figure 8 offers an illustration – using a popular index of corruption and a popular index of human rights ‘empowerment.’[42] We emphatically do not claim that the Figure represents any kind of relation between the protection of human rights and corruption (as indeed, all the writers on the issue of human rights rightly refuse to produce such graphs). Instead, we use the graph to quickly and easily summarise the thousands of pages of writing on the relation between human rights and corruption. Simply put, corruption correlations with human rights protection. We can not know for sure which direction causality lies – and surely causality lies in both directions.

 

 

The broader empirical literature strongly supports the simultaneous determination of corruption and human rights. So far, few empirical studies have attempted to make strong claims about a causal link between corruption and human rights. Figure 9 provides examples of the extant studies. Of the authors reviewed in Figure 9, Uslaner provides the most comprehensive overview of empirical studies attempting to assess the ways which corruption can imperil human rights – and visa versa. Increasingly empirical work shows how lack of human rights enforcement causes corruption (instead of visa versa). Gathii and Drury for example specifically find evidence showing how the protection of human rights prevents corruption. However, such findings are still controversial – as authors such as Pellegrini and Gerlagh specifically argue that the democratic participation concomitant with the protection of human rights does not – at least in their sample – lead to causal decreases in corruption. 

 


 

Figure 9: Representative Sample of the Empirical Literature

 

Authors

Description

Result

Uslaner (2008)[43]

One of the most comprehensive empirical overviews of the statistical relationship between corruption and a number of variables (including human rights).

Finds (or reports from others’ studies) strong statistical correlations between corruption and abuses of human rights.

Gathii (2009)[44]

Looks at history of anti-corruption work (with a focus on Kenya).

Strongly argues that human rights protection helps prevent corruption.

Drury (2006)[45]

Empirical study of over 100 countries from 1982–97 looking at various effects on economic growth (including corruption and political rights).

Find that when democratic human rights in place, corruption has no effect on economic growth. When political human rights are absent, corruption largely affects growth.

Pellegrini and Gerlagh (2006)[46]

Uses regression analysis of corruption and democratic participation to assess impacts on environmental policy.

Finds corruption has a strong impact and democratic participation has little impact on a particular issue of environmental rights.

Theodore Gerber and

Sarah Mendelson (2001)[47]

Conducts surveys of Russians to assess opinions about human rights – with corruption as one issue addressed.

Find that Russians see an inverse relationship between corruption and the protection of human rights.

Alolo (2007)[48]

Conducts survey of Ghanaians to find out if they consider corruption to be a violation of their human rights.

Over 90% of interviewees consider corruption to be a violation of their human rights.

de Maria[49]

Uses a “mega case study” of numerous African anti-corruption agencies to assess their performance.

Finds serious lack of effectiveness of anti-corruption work when ignores human rights. 

Source: authors 

 


Yet, even the active protection of human rights appears to have a negligible (albeit positive) impact on corruption. Figure 10 provides an example from the existing data – looking at a proxy for the defence of human rights and a proxy for the extent of corruption in a country. On the x-axis, we have plotted scores measuring the effectiveness of the national Ombudsman (as measured through expert assessment by the NGO Global Integrity).[50] Such a variable may proxy (even if a little bit) the effectiveness of the protection of human rights in that country – as a “better” Ombudsman would better protect and defend human rights.  On the y-axis, we show Global Integrity’s rule of law indicator – which shows the extent to which respondents can rely upon the courts and view courts as free from corruption.[51] As shown in Figure 10, stronger Ombudsman institutions only slightly correlate with stronger rule of law. Why the data do not reflect a stronger relationship between the protection of human rights and corruption will remain one of the big research questions of the upcoming years.  

 

 

Suing for Human Rights in Corruption-Related Cases

 

Would stronger enforcement of human rights law lead to reductions in corruption? As indicated earlier, one way of using human rights law to fight corruption would be to actively prosecute the human rights offences concomitant with corruption offences. By “concomitant” – as suggested in the literature – we mean prosecuting the human rights offences preceding or resulting from corruption. As shown in Figure 11, victims of corruption may appeal to three approaches as they seek to invoke human rights provisions in constructing a case: the soft law approach, the ombudsman-based approach and the trial approach. Each method has its advantages and disadvantages.

 

Figure 11: The Three Methods of Enforcing Human Rights

 

Approach

Description

Soft Law

Relies on social norms, advice and admonitions in order to encourage the enforcement of human rights law. Weak or no sanctions for not providing an individual with a house or medical care. Anti-corruption strategies and action plans usually the basis of such soft law.

Ombudsman model

Still uncomfortable relationship between Ombudsman and anti-corruption. In 1990s, many Ombudsman organisations possessed primary competence for collecting denouncements in most EU member states. But without prosecutorial powers, Ombudsmen simply pass complaints on to the media.  

Trial

Increasingly used to defend victims’ rights in EU member states. However, fear of creating wide-spread entitlements and sovereign liability still prevents from serving as effective recourse.

Source: authors.

 

By far, the most prevalent approach to militating for stronger enforcement of human rights law (particularly in cases involving corruption) relies on soft law – as Knox calls it, voluntarism.[52] In such a soft law approach, government agencies and victims (or potential victims) of corruption – acting through group organisations -- make recommendations and issue guidance which consists of recommendations and proposed plans. For example, such recommendations consist of areas of service delivery or procedures governing the electoral process which are likely to result in corruption. The national anti-corruption strategies popular in Eastern Europe comprise an important example such soft law.[53]

 

In Kosovo, such soft law consists of the national anti-corruption strategy and action plan. The National Anti-Corruption Strategy, recently revised in 2009, discusses the principles behind changes in six areas: anti-corruption legislation, development of the judiciary and law enforcement, public administration reform, economic reform, awareness raising among civil society and educational initiatives.[54] Based on such a strategy, the National Anti-Corruption Action Plan lists, sector by sector, the activities that various agencies ought to do in order to reduce corruption. These action plans, bestowing no legal authorities or competencies, “assign” to various government agencies relatively abstract and general obligations aimed at decreasing corruption.[55]

 

A more detailed analysis of the Action Plan reveals that the government seeks to fight corruption by addressing deep-seating reforms in human rights enforcement in various sectors of the public sector. While the Strategy and Action Plan do not explicitly target human rights – the Action Plan aims at improving the enforcement of human rights. Figure 12 shows salient points from the 160+ point Action Plan – drawing links with particular human rights provisions from the Kosovar constitution. As shown, the Action Plan aims to improve work in areas protecting key human rights.

 

Figure 12: Kosovo Anti-Corruption Action Plan Targets a Range of Human Rights

(examples from the Action Plan)

 

#

Action Plan Point

Related Human Right(s)

I.1

Increase public officials’ salaries

Possibly right to life (art.25) and right to dignity (art. 23). See accompanying text for more.

I.2

Revise funding of political parties and election campaigns to prevent corruption

Freedom of Elections (art. 45)

III.1

Strengthening of Prosecutor's Office

Rights of the Accused (art 30)

III.5

Transparency in issuing of business licences and business registration

Freedom of Property (art. 46)

III.14.

Measures for preventing corruption in tax authority

Freedom of Property (art. 46)

III.16

Development of a process for issuing environment permits

Environmental Rights (art. 52)

III.20

Proper use of resources for culture, youth and sport

Children’s Rights (art. 50)

III.26

Strengthening control in the Ministry of Health

Right to Health (art. 51)

III.34

Strengthen capacity of schools to prevent corruption

Right to Education (art. 47)

IV.1

Transparency in privatisation

Freedom of Property (art. 46)

IV.4

Strengthening courts

Right to legal remedies (art 32)

IV.9

Strengthen Office of Public Information

Access Public Documents (art 41)

IV.18

Fight Against nepotism

Equality before the Law (art 24)

VII.5

Upgrade work of media and journalists

Freedom of Media (art. 42)

Notes: The action plan consists of over 160 points. The translation provided in Figure 12 does not represent an official translation and has been adapted to increase readability. Numbers in the first column refer to the numeration in the Action Plan.

 


 

Use of the National Ombudsperson serves more to protect human rights of suspects during a corruption investigation than to protect human rights of potential victims of corruption.[56]  In theory, the Ombudsman would be the institution to turn to for policy-related causes of corruption and human rights violations – and not in particular cases where civil servants solicit bribes.[57]  In practice though, the lack of effective powers prevents the Ombudsman from serving as an effective bulwark against corruption. Article 4.1(b) of the Law on the Ombudsperson sums up its powers “to publicize its advice and opinions, recommendations, proposals and reports.”[58] As such, the Ombudsman serves a useful role in addressing the human rights discrepancies which lead to corruption – as a preventive institution. However, the Ombudsman can not be relied upon to tackle head-on either corruption nor human rights abuses.[59]

 

Like in many other developing countries, the prosecutor and courts have also proven – for a variety of reasons -- to be most unsatisfactory advocates for militating for human rights threatened by corruption (and exacerbated by corruption). In one of the most corrupt countries in the world, for 2007, the Kosovo Anti-Corruption Agency handled 124 cases.[60] None of these cases had human rights elements, even though roughly 25% of these cases involved some form of ancillary human rights infraction. Of the 47 cases referred to the prosecutor’s office in 2007, 12 of these cases involved the “misuse of official duty and authorization.” Such misuse, besides involving corruption, clearly violates Kosovo law related to non-discrimination.[61]

   

Invoking anti-corruption elements in human rights-related litigation remains tenuous. Figure 13 shows relatively recent cases appearing in front of the European Court of Human Rights for violations of the Council of Europe Human Rights Convention. Of the cases involving elements of corruption, the Court finds three human rights related elements. First, the Court generally upholds the right (under article 10 of the Convention) to share information about corruption as protected free speech. Second, the Court actively (under article 6 of the Convention) defends the rights of suspects involved in corruption to a fair trial. Third, the Court defends the rights of suspects and individuals convicted of corruption (under article 3 of the Convention) to humane treatment once incarcerated.

 

Figure 13: ECHR Cases with Corruption Elements Present

 

Case

Elements

Implication for

corruption law

Speech

Guja v. Moldova (14277/04)            

Appellant claims a violation of his right to freedom of expression. His release of two documents allegedly shows that a high-ranking politician interfered with an on-going corruption investigation. ECHR upholds.

Court finds leaking confidential documents in public interest to stop corruption. Free speech serves vital role in fighting corruption.  

Cumpana and Mazare v. Romania (33348/96)

Cartoonists accuse politician of corruption. They are jailed. ECHR overturns government conviction.

Free speech’s role in fighting corruption supersedes individual’s rights (slander prosecution overturned).

Stoll v. Switzerland (69698/01)            

The applicant alleged that his conviction for publishing “secret official deliberations” had been contrary to Article 10 of the Convention.

Right to free speech not absolute. Journalists must follow professional ethics in releasing information to the public.

Sisojeva and others v. Latvia (60654/00)

Applicant refused leave to stay in Latvia as alleged retribution for denouncing corruption in Latvia on a TV show in Russia. ECHR finds against deportees.

The court – by hearing the case – took seriously allegations that government violates human rights to cover-up corruption. Court would certainly rule against illegal decisions taken because of corruption.

Fair Trial

Ramanauskas v. Lithuania (74420/01)

Appellant claims that he was victim of entrapment for corruption and denied opportunity to examine a key witness.

Law enforcement agencies must follow rule of law in anti-corruption proceedings. Court upholds human rights of suspects in corruption-related cases.

Kart v. Turkey (8917/05)

In an unusual case, Member of Parliament wants immunity lifted so he can defend himself against corruption charge. Court finds for Government in refusing to lift immunity.  

Conventional wisdom holds that parliamentary immunity impedes anti-corruption work. Case will provide fresh perspective for years to come.

H.L.R. v. France (24573/94)            

Appellant seeks to overturn deportation order to Colombia. Claims corruption in Colombian court system will deprive him of fair trial.

Countries have duty not to blindly provide assistance, but consider protection of human rights in cases tried abroad.


Figure 13 Continued: ECHR Cases with Corruption Elements Present

 

Guerin v. France (25201/94)

French officer takes bribe. Claims he was deprived of an effective right of appeal. ECHR finds for appellant.

Little apparent relevance for wider theorising on anti-corruption law.

Na. v. UK (25904/07)

Mr. NA – a Sri Lankan national -- admits to paying bribe to escape Sri Lankian authorities. ECHR finds real risk if returned.

In remarkable case, Court implicitly condones payment of bribe in a highly dysfunctional country. The issue of the extradition relatively unimportant.

Gorgievski v. FYROM (18002/02)

Appellant argues entrapment for paying bribe.

Court deliberately abstains from making human rights related judgements on FYROM’s domestic (anti-corruption) law.

Miliniene v. Lithuania

Accused alleges that police entrapped her (a judge). ECHR finds against her.

ECHR fails (again) to render an opinion on human rights related aspects of anti-corruption legal framework.

Abramyan v. Russia (10709/02)

Appellant’s case reclassified from corruption to fraud – causing a re-trial. He and counsel not present at reclassified trial (where he was found guilty) Court finds for appellant.

Unremarkable case.  

Vilvarajah and Others v. UK (13163/87)

Basically same case as Na v. UK (but about a decade earlier). Court finds no risk of ill treatment. Appellants also admit to paying bribe.

As with Na, court seems to overlook corruption elements of the case.

Inhumane Treatment

Victor Savitchi v.

Moldova (81/04)

Member of economic police takes bribe. He is beaten up and claims evidence against him unfair (wiretapping etc.) ECHR finds in his favour for beating but rules that government’s methods of collecting evidence did not violation human rights.

ECHR – in this case as in others – focuses on human rights “performance” and less on adherence to rule of law.  

Dorokhov v. Russia (66802/01)

Former prosecutor abuses power and takes bribes. Claims holding conditions horrible. ECHR agrees.

Another “spirit of the law” case – court tends to look at outcomes instead of adherence to domestic law. 

Right to private property

No cases found.

Clearly extortion of bribes violates the right to private property.

Right to education

Only two cases, none dealing directly with corruption.

Corruption leads to the violation of such a principle.

Source: European Court of Human Rights HUDOC Portal. Available online.

 

Yet, the lack of a larger volume of corruption-related ECHR cases speaks volumes about the legal rights possessed by victims. The First Protocol to the Convention – entitled the Enforcement of Certain Rights and Freedoms Not Included in Section I of the Convention – contains two important provisions.[62] The first article, in effect, protects private property – stipulating that “every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest.” The extortion of bribes clearly violates the protection of private property. The second article guarantees that “no person shall be denied the right to education.” Bribery clearly violates the spirit – if not letter – of the second article. If corruption represents affronts to these two human rights issues in Kosovo, they should represent affronts in other countries as well.

 

Clearly, in Kosovo, a number of disadvantaged and minority groups have a clear legal mandate to sue for human rights violations concomitant with corruption. The data sometimes show a significant loss of amenity among these minority groups. Figures 14 show the incidence of bribery; by profession (Figure 14a) and among the two main ethic groups in Kosovo – ethic Albanians and Serbians (Figure 14b).[63] Figure 14(a) shows the proportion of survey respondents having to pay bribes for a number of public services. For example, roughly 32% of respondents had to pay bribes in order to receive medical care – clearly impinging on their right to medical care.  As such, we interpret bribery as concomitant with the infringement of a number of “common” human rights which we have previously delineated.

 

 

Differences in amenity between social groups also clearly violate Kosovo human right law, particularly enshrined in the 2003 Anti-Discrimination Law.[64] Figure 14b shows differences in the levels of corruption perceived by Serbian and Albanian Kosovars. For example, 30% more ethnic Serbs view corruption in courts affecting them rather than ethnic Albanians (47% of Serbs as opposed to 16% of ethnic Albanians). According to article 3(b) of the Anti-Discrimination Law, indirect discrimination occurs when “an apparently neutral provision, criterion or practice would put persons…at a particular disadvantage compared with other persons.” As per article 4, such indirect discrimination must be avoided, and can be punished, if it relates to police service delivery (point 4j) or relating to fair treatment before tribunals and all other organs administering justice respectively (point 4k). Such indirect discrimination also occurs if frustrating access to customs (as an infraction of point 4(i) as access to and supply of goods and services which are available to the public) or education (point 4(g)). While corruption represents a criminal offence, differences in levels of corruption represent (or at least reflect) human rights offences.

 

 

How to Handle “Human-Rights Enhancing” Corruption: The Living Wage and Vicarious Liability Doctrines

 

In theory at least, when a public official hires a civil servant at a wage lower than the amount the recently hired civil servant can survive on, the hiring public official is complicit in corruption. No reasonable public official could expect a civil servant – whether a customs official, police, or office worker in a government agency – to abstain from taking bribes when the salary is lower than the amount needed for basic survival. In Kosovo for example, of the roughly 37,000 civil servants working for the administration, roughly 20% of them earn between €150- €400.[65] With rent of roughly €150-€200 per month and food expenses of another €200 per month, roughly 20% of the civil servant does not earn enough to survive. No reasonable public official could expect these civil servants not to shirk, take bribes or hold additional jobs in the private sector. Such policies might also violate the civil servants’ human rights.

 

Low wages may represent possible violations – or at least contribute to the violation – of two human rights in particular.[66] Depending on its interpretation, excessively low wages clearly put in jeopardy the civil servant’s ability to obtain food, shelter and clothing. Privation of food and other basic necessities clearly jeopardises the civil servant’s right to life (as defined in Kosovo by article 25 of the Constitution). More tenuously, low wages represent a social affront – a privation of economic liberty and social respect which define the core of an individual’s dignity. Low wages – as Indian legal school Raj Kumar might clearly argue – strike down the basic right to dignity (as defined in art. 23 of the Kosovo constitution).[67] If a court ever upheld a decision that excessively low wages constituted these two human rights violations, such a decision would set the precedent for a living wage doctrine which other countries might emulate.

 

Such a living wage doctrine finds support in several areas of law. Government agencies across the world increasingly must pay damages for the administrative violations caused by their civil servants.[68] “Know your employee” regulations increasingly place the burden of employees’ crimes on the legal person for which he or she works.[69] Legislation – at least in developed countries – increasingly militates for salaries above a minimum wage…comprising instead a living wage.[70] Courts increasingly recognise that policies which encourage civil servants to engage in particular actions provide important incentives – a motive to engage in particular behaviours. Managers are complicit in the untoward behaviour of their sub-ordinates if they can reasonably expect their sub-ordinates to act in particular ways.  

 

Who holds liability for such complicity in the chain of criminal offences performed by the bribe-taking civil servant? The civil servant in theory has committed an offence – though in practice he or she has less than a 1% probability of being prosecuted.[71] The bribe-taker’s superiours are guilty of complicity – as their sub-ordinates must engage in bribe-taking to survive. However, they also have a duty to uphold the wage laws, and deliver the public services for which they are under contract. They are guilty, but not responsible for corruption. The administration, as a legal person, clearly holds liability for the offence – as it is the administration’s policies leading to corruption. So, in a very real way, the optimal legal approach is to “blame the system.” Remedial action in this case would be a court order requiring regulatory changes – and not payments to the plaintiffs.[72]

 

How can victims of corruption – or the civil servants who are victims of the policies leading to corruption – seek remedial action from courts? Figure 15 shows a number of provisions which anti-corruption and human right activists might rely on when proposing litigation for non-performance of human rights obligations which provide civil servants with adverse incentives leading to corruption.

 

Figure 15: Who to Sue? Allocating Liability in “Policy-Related” Corruption Cases

 

Legal Principle

Description

Conditions of Applicability

Effect of Court Order

Citizens Sue Government

Non-performance

Individuals sue because government breaks service contract.

When ministry or agency clearly creates and publishes an entitlement (or activists can assume one based on constitutional entitlements).

Requires agency to implement specific anti-corruption or human rights activity.

Negligence

Government did not do enough to prevent corruption in one or more services.

A ministry or agency could have undertaken actions whose cost was less than the expected benefits of reducing corruption.

Corrects negligence by requiring government agency to engage in particular actions.

Ultra vires government action

Excess regulation results in incentives leading to corruption.

When regulation exceeds requirements to delivery service or amenity.

“Gullotine” effect of helping to reduce rent-seeking.

Government Sues Government

Contributory negligence

Agency fails to implement programmes which reduce corrupt incentives.

When agency clearly advised of a particular policy and ignores it.

Transfers liability from individual to agency.

Vicarious liability

When agency’s policies encourage civil servant to engage in rent-seeking.

When policy specifically creates perverse incentives to engage in corruption.

Transfer of liability encourages senior management to be more aggressive in fighting corruption

Coercion

Civil servants forced by policies or management to enforce rent-seeking policies.

When civil servants must enforce extremely distorted policy environment.

Relieves (possible on large scale) civil servants of supporting distortionary policy.

Source: authors.

 

How might legal activists allocate liability in cases like Mr. Selimi’s – when faulty human rights policies contribute to wide-spread corruption? Figure 16 shows the example we cited previously – showing the human rights offence committed at each level of administrative responsibility and possible remedies which seek to prevent or reduce corruption. The doctor certainly committed the major offence – implicitly or explicitly refusing health care unless he received a bribe. However, the doctor responds to incentives given by his hospital and wider ministerial policy. In order to motivate the hospital and ministry to change, courts must impose sanctions on these entities – as legal persons.

 

Figure 16: Vicarious Liability and Immunity for Human Rights Offences

 

Level of Liability

Human Rights Offence

Remedy

Ministry of Health

Failure to exercise sufficient oversight over human rights framework.

Optimal fine to encourage the modification of Ministry regulations and putting systems in place to monitor compliance.

Hospital

Contributory negligence for not monitoring the doctor’s behaviour (and complicity if hospital policies partly to blame).

Optimal fine encouraging hospital to change policies and exercise greater monitoring.

Doctor

Violates right to health (art. 51) and right to non-discriminatory access to public services (equality before the Law as stipulated in art 24 of the Constitution).

Administrative or disciplinary penalties (not withstanding the corruption charge).

Petrit Selimi

None (Mr. Selimi is the victim).

None – other than provide Mr. Selimi with increased access to police and courts in such cases.

Source: authors.

 

Fines for negligence comprise the major instrument in the judiciary’s arsenal to encourage pro-human rights policy change (particularly at the regulatory level).[73] Such fines provide important incentives to change policies by reducing the profitability of maintaining policies which jeopardise service users’ human rights. Such fines also help to pay for remedies aimed at correcting human rights offences. If the Ministry of Health had to pay fines because a court found hospitals consistently gave one minority superior access than another minority – such fines could be used to pay for inclusion programmes. Money could be taken from the Ministry of Health and given to a government sponsored NGO which works on promoting access to health. Such a reallocation of resources would promote justice as well as economic efficiency.

 

What is the economic value of a human rights violation which leads to corruption? How much money should government agencies reasonable expect to pay for maintaining human rights unfriendly policies which result in corruption? Damages payable by Kosovo agencies should exactly equal the value of potential corruption existing policies cause, plus the opportunity cost of reallocating those resources in a more productive activity. In other words, government agencies should be forced to pay the same price which their inefficient policies cost. As we saw earlier with the examples of Fitim Gllareva and Petrit Hysaj from Pristina University, the Kosovo education system possesses two types of teachers – high skilled and incompetent (but connected). Incompetent teachers generate relative low social value – their teaching does not help students get high paying jobs or think through real-world problems. However, their wage is relative low – so the University can afford to hire many of these teachers.[74] Very competent teachers (or potential teachers like Ms. Gllareva) generate high social value – but they are more expensive. Assessing fines against schools for using incompetent teachers clearly forces money out the current administration’s hands – which can be used elsewhere to pay for competent teachers. Such fines also punish the existing use of incompetent teachers.

 

The optimal fine, or court award, equals the social damage caused by using inefficient teachers. Figure 17 shows – using economic reasoning – the logic behind this valuation rule. The x-axis shows the total number of teachers working for the Ministry of Education – allocated between two groups. The first group – shown by the y-axis on the left-hand side of the graph – represent incompetent teachers. The social value generated by the most talented of the incompetent teachers is positive – though the additional value of extra incompetent teachers falls quickly into the negative range. On the right-hand sight of the Figure, the value of very competent teachers starts high and remains relatively high as the school employs additional teachers. At the mix N1 of competent to incompetent teachers, the allocation of incompetent teachers is roughly 80% to the 20% of very competent teachers. At that allocation, the teaching done by the marginal incompetent teachers subtracts social value from the school’s teaching activities (their work may interfere with other teachers’ work, they may confuse students and so forth). The marginal value of the very competent teachers is relatively high – but they are so expensive to hire that schools find it better to hire lots of incompetent teachers instead of a few very competent ones.  

 

Alpha (a) represents the optimal fine to impose on the hospital and/or ministry. In this example, a fine – represented in Figure 17 by the value of a – would provide incentives for the school to fire many incompetent teachers and hire competent ones. With fewer resources, the optimal response for school administrators would be to reduce staffing of incompetent teachers – to the new mix of N*. At N*, incompetent teachers only represent 30% of the total faculty – and their marginal social value equals the competent teachers. At N*, the social value of best of the incompetent teachers equals the social value of the worst of the very competent teachers. Fines also dissipate the gains school administrators receive from taking bribes. Bribe-taking school administrators face a trade-off. The can take their former flow of bribes and risk a higher probability of firing. Or they can settle for a smaller flow of bribes but keep that flow longer -- as the probability of their keeping their job rises. Such an effect frees up resources which may be used to hire very competent teachers.

 

Indeed, all human rights violations can be priced similarly – by the amount needed to “ring out” inefficiencies (or “eliminate the consequences caused by illegal real acts” in the words of the Administrative Procedure Law) contributing to corruption.[75] To take another example, following the example of Guja v. Moldova, a Kosovo agency resists sharing public information about potential corruption in its ranks – violating article 41 of the Constitution pertaining to access to public documents. The optimal fine, in that case, should consist of the expected damages the corruption case would cause and an additional amount which constrains current management’s resources sufficiently to imperil their legitimacy within the government.[76] So a fine would completely eliminate the consequences of these illegal real human rights violations.

 

 

 

Concluding Remarks

 

How legal scholars use the provisions from human rights law in order to increase the likelihood of effective changes to a country’s anti-corruption law? Commentators like Raj Kumar note that corruption itself represents a human rights violation – and human rights law should be modified to include the “right to good governance.” Yet other commentators – the majority -- maintain the clear division between anti-corruption law and human rights law. Instead they militate for fighting corruption in courts as a way promoting the enforcement of human rights law. In the limited number of cases appearing before the European Court of Human Rights, where corruption was involved, the Court found that the protection of human rights helps enforcement anti-corruption law in three ways: freedom of speech, right to a fair trial and inhuman treatment. Yet, the court made a clear division between anti-corruption law and human rights law. Provisions from each group of laws do not overlap. Or do they?

 

In this article, we argue for a much more active role in the defence of human rights as a way of fighting corruption. With acceptable levels of human rights enforcement, the incentives leading to corruption can not appear. We also argue for the strong role that litigation has to play in defending the human rights which help quash incentives leading to corruption across the public sector. We highlight the failures of non-trial based approaches to enforcing human rights law - particularly the soft law approach and the Ombudsman approach (though using international law in cross-border trials probably remains both impractical and undesirable). We argue particularly for litigation aimed at administrations as legal persons and provide rule-of-thumb estimates for pricing these damages (or optimal fines) seeking to remedy these offences.

 

For all these new ideas in enlisting human rights law in the fight against corruption, a number of obstacles remain open in the upcoming years. First, why would people sue for human rights, but not for the more serious offence of corruption? Second, how to move past the futile Ombudsman approach to protecting human rights? Third, how to design statistical studies which unravel the simultaneity problem we describe? While legal theory can make interesting and relevant observations about the link between human rights law and anti-corruption law, more work remains to be done.

 

 

 

 

 

 

 



[1] UNOHR, Who Are Human Rights Defenders,2006,  available online.

[2] Magdalena Sepulveda, Corruption and Human Rights: Making the Connections, 23 (2008), available online.

[3] Thusitha Pilapitiya, The Impact of Corruption on the Human Rights Based Approach to Development, 10 (2004), available online.

[4] Raj Kumar, Corruption and Human Rights: Promoting Transparency in Governance and the Fundamental Right to Corruption-Free Service in India, 17 J. Asian L. 1 (2003).

[5] Thomas Hammarberg, Corruption is a Major Human Rights Problem, CommDH/Speech(2009)9, available online.

[6] Sepulveda, supra note 2 at 25.

[7] Pilapitiya, supra note 3 at 11.

[8] Balkan Investigative Reporting Network, Kosovo Television Debate: The State of the Nation's Health, October 26 (2005), available online.

[9] The account comes from Mr. Selimi himself. We can not know if he was truly extorted, if he aided or served as an accomplice in the offence. He told this story on national television (thus possibly expecting scrutiny of his case). We can assume his innocence in the case because no rational person who inculpate themselves on national television.  

[10] We put this assertion in bold as the authors we reviewed for this paper remain terribly coquettish about stating the actual relation between human rights offences and corruption offences. In most cases, they (wisely) do not claim that corruption directly constitutes a human rights offence. However, they tend to spend pages and pages implying that such a link exists.

[11] The actual handling of these types of cases will depend on the country’s criminal, civil and administrative codes (and even the strategy the prosecutor chooses in prosecuting the case). In most cases, the prosecutor will drop the human rights offence (which is usually an administrative offence) in order to pursue the criminal offence (as corruption comprises a criminal offence in most jurisdictions these days). Alternatively, he could merge the human rights offence as a lesser included offence. Indeed, the question as to whether the human rights violation comprises an included offence will frustrate legal scholars for years to come. For an interesting “toolkit” for prosecutors engaged in such questions on a practical level, see Egbert Myjer, Barry Hancock & Nicholas Cowdery, Human Rights Manual for Prosecutors (2003).

[12] For an overview of the obstacles legal practitioners face in enforcing human rights in practice, see Terry Collingsworth, Key Human Rights Challenge: Developing Enforcement Mechanisms, 15 Harv. Hum. Rts. J. 183 (2002).

[13] Suppression of Corruption Law (No.2004/34), available online.

[14] Id.

[15] Anti-Discrimination Law (2004/3), available online. 

[16] Administrative Procedure Law, available online.

[17] European countries differ significantly in the extent to which they allow executive agencies – as legal persons – bear liability for damages caused by their policies. In Kosovo’s case, art. 138 of the Administrative Procedure Law only requires the agency to “eliminate the consequences” of illegal acts committed by civil servants working for the agency. Clearly, such a requirement extends beyond the simple retributive measures contained in the Suppression of Corruption Law.

[18] Naturally, the division of such liability would be easier for the corruption offence itself. As in practice, such prosecutions almost never occur in developing countries, we have sought to tackle the problem from a human rights perspective. For more on the optimal allocation of criminal and civil liability for corruption offences, see Bryane Michael, Drafting Implementing Regulations for International Anti-Corruption Conventions, QEH Working Paper 150 (2007), available online.

[19] While recourse to such remedies represent legal rights, in Kosovo – like in most European countries – the actual enforcement of such rights remain highly fleeting. In most cases, administrative instances admit administrative liability only in cases involving blatant negligence. For difficulties in applying a negligence doctrine in an administrative setting,, see G. Monti, Osman v. UK—Transforming English Negligence Law into French Administrative Law?, 48 Int’l & Comp. L Q, 1999.

[20] As we discuss later, the literature focuses mainly on the link between corruption in the judiciary and human rights violations because of the wide impacts such corruption. The ability to bribe police reduces the probability of detection of corruption in other sectors and lowers the probability of a successful prosecution. The ability to bribe judges reduces the expected payment for success corruption prosecutions. For a formal treatment of this problem, see Mitchell Polinsky and Steven Shavell, Corruption and Optimal Law Enforcement, 81 J. of Pub. Econ. 1 (2001).

[21] We argue later than inadequate enforcement of human rights policy – in general – must always precede a corruption offence. However, in the particular case of Mr. Selimi, we ignore the pre-existing inequality in access to health care in order to focus on the legal issues surrounding his particular case.

[22] The term anti-corruption law refers to those legal provisions aimed at reducing corruption among public officials in a country. A definition of which provisions rightly fall into this self-stylised sub-field of legal study poses numerous problems. Any legislative or regulatory obligations aiming at increasing transparency and accountability could rightly be defined as belonging to anti-corruption law. A rigourous definition of which provisions rightly fall into anti-corruption law would take us well outside of the scope of our paper. To avoid such methodological problems, we – like all other scholars so far in this sub-field --  define such law as provisions aimed at implementing the international anti-corruption conventions (which we discuss in the main body of the article). 

[23] See UN Convention Against Corruption (A/RES/58/4).

[24] See Council of Europe Criminal Law Convention Against Corruption (ETS 173) and Civil Law Convention Against Corruption (ETS 174). 

[25] Provisional Criminal Code of Kosovo (UNMIK Regulation No. 2003/25 of 6 July) (2003), available online.

[26] For an assessment of the performance of many of the provisions in the Suppression of Corruption Law, see SIGMA, Kosovo Public Integrity System Assessment, 2009, available online.

[27] Constitution of the Republic of Kosovo, available online.

[28] These others include the Council of Europe Framework Convention for the Protection of National Minorities, the Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Elimination of All Forms of Discrimination Against Women, Convention on the Rights of the Child, and the Convention against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment.

[29] European Convention on Human Rights (1950), available online.

[30] Detailed citation from the literature would bog the reader down in a large number of citations. To keep the text relatively easy to read, we refer the reader to Sepulveda’s research project which has covered most of these effects. See Sepulveda, supra note 2.

[31] Tanjug, Low Turnout Expected in the Upcoming Elections in Kosovo-Metohija (11 November 2009), available online.

[32] James Surowiecki, The Payola Game, The New Yorker, available online.

by We, in no way, condone corruption as a way of resolving human rights disputes. As researchers though, we need to fearlessly expose the reasons why corruption persists and the advantages individuals gain from it. No other author we reviewed for this piece dared to directly confront the advantages corruption provides to individuals during human rights violations – even though within academic discourse, such collective action problems arising from corruption are well understood. For a review, see Christopher Kingston, Social structure and cultures of corruption, 67 J. of Econ. Behavior & Org. 1, 2008.

 

 

 

 

[33] Ibrahim Rexhepi, Corruption – A Problem Impossible to Solve, Alternative Information Network, available online. The author does not directly accuse Mr. Prapi of corruption, but does note that wide-spread corruption greatly influenced Mr. Prapi’s decision. 

[34] Pilapitiya supra note 3 at 15.

[35] We do not claim that the inadequate enforcement of human rights always leads to corruption. We make a weaker claim – that such lack of enforcement always creates the incentives to engage in corruption. Whether individuals decide to respond to those incentives depends on a range of factors.

[36] For the numerous human rights violations in Kosovo in 2008, see US State Department, Country Reports on Human Rights Practices, 2009, available online.

[37] Alma Lama, Far from Pristine, Transitions Online, 26 April 2005, available online.

[38] Data support similar observations from around Kosovo’s education system. See UNDP, Youth A new generation for a new Kosovo (2007), available online.

[39] We, like Aristotle, take the view that the egg comes before the chicken as actuality precedes potentiality.

[40] For numerous examples of this kind of analysis, see Johann Lambsdorff, Markus Taube, Matthias Schramm, The New Institutional Economics of Corruption, 2006.

[41] We rush through this argument as most readers should be extremely familiar with the economics of rent-seeking. We refer the reader unversed in the economics of corruption to refer to the authors which we cite.

[42] The x-axis in Figure 8 represents the ‘New Empowerment Index’ from the Cingranelli-Richards (CIRI) Human Rights Dataset (2009), available online. The y-axis refers to scores from the Transparency International Corruption Perceptions Index (2009), available online.

[43] Eric Uslaner, Corruption, Inequality, and the Rule of law: The Bulging Pocket Makes the Easy Life (2008).

[44] James Gathii, Defining the Relationship Between Human Rights and Corruption, 31 U. Pa. J. Int'l L. 125, 2009

[45] Cooper Drury, Jonathan Krieckhaus and Michael Lusztig, Corruption, Democracy, and Economic Growth, 27 Int’l Pol. Sci. Rev. 2, 2006.

[46] Lorenzo Pellegrini and Reyer Gerlagh, Corruption, Democracy, and Environmental Policy: An Empirical Contribution to the Debate, 15 J. of Environ. & Dev. 3, 2006.

[47] Theodore Gerber and Sarah Mendelson, Russians Think about Human Rights: Recent Survey Data,

PONARS Policy Memo No. 221, Prepared for the PONARS Policy Conference, January 25 (2002).

[48] Namawu Alolo, Corruption, Human Rights and Gender: An Empirical Investigation from Ghana, ICHRP Working Paper (2007), available online.

[49] William De Maria, Cross Cultural Trespass: Assessing African Anti-corruption Capacity, 8 Int’l J. of Cross Cult. Manage. 3 (2008).

[50] Global Integrity, Global Integrity Index 2008, 2009, available online. We make no claims about the unbiasedness of the data nor the extent to which each observation proxies the underlying variable we seek to understand. Instead, we hope to look at the relative variability in the data to illustrate themes reappearing in the literature. We purposely place our human rights quality proxy on the x-axis as the independent variable. 

[51] The placement of the ‘rule of law’ questions in the Global Integrity survey clearly causes the variable to reflect levels of perceived corruption in the judiciary. These questions are placed in a larger section about anti-corruption and respondents answered a number of questions about the extent of corruption in the country right before answering these questions. As such, the survey frames these as anti-corruption questions.

[52] In a daring article, Prof. Knox discusses how human rights law can be incorporated into private obligations. He – like most authors – laments the voluntary nature of human rights law. See John Knox, Horizontal Human Rights Law; 102 Am. J. Int'l L. 1, 2008. 

[53] For a detailed enumeration why such strategies and action plans comprise soft law – providing no substantive legal obligations or rights – see, Bryane Michael and Natalia Mishya, A Review and Critique of Azerbaijan’s Anti-Corruption Legal Framework, 2 J. of Eurasian L. 1, 2009.

[54] See Anti-Corruption Strategy: 2009-2011, available online. For a more detailed discussion of the strategy (and relevant though dated observations of the modification of the strategy), see Council of Europe, Expert opinion on the Draft Anti-Corruption Strategy of Kosovo, December 2003, available online. 

[55] A number of authors have argued that provisions increasingly finding their way into soft law (both in Kosovo and around the world) represent a type of jus cogens. The widespread similarlity of national anti-corruption strategies and action plans strongly supports such arguments. For a discussion of these international norms, see Evan Fox-Decent and Evan Criddle, A Fiduciary Theory of Jus Cogens, 34 Yale J. Int'l L. 331, 2009. For a fuller discussion of the ways in which international soft law norms interact with the international anti-corruption conventions, see Evan Lestelle, The Foreign Corrupt Practices Act, International Norms of Foreign Public Bribery, and Extraterritorial Jurisdiction, 83 Tul. L. Rev. 527, 2009.

[56] For an overview of the way an Ombudsman works in a government’s overall anti-corruption strategy, see Linda Reif, Building Democratic Institutions: The Role of National Human Rights Institutions in Good Governance and Human Rights Protection, 13 Harv. Hum. Rts. J. 1, 2000.  For a specific example (from Australia), see A Brown and Brian Head, Institutional Capacity and Choice in Australia's Integrity Systems, 64 Aust. J. of Pub. Admin. 2, 2005. 

[57] We still know very little about the role of the Ombudsman in fighting corruption. What we do know comes from East Asia. See Jon Quah, Combating Corruption in the Asia-Pacific Countries: What do We Know and What Needs to Be Done? Int’l Pub. Man. Rev., 2009.

[58] Regulation No. 2006/6 On the Ombudsperson Institution in Kosovo, Available online.

[59] For another critique of the relatively ineffectual powers of the Ombudsman as an institution, see Cindy Cohn, Early Harvest: Domestic Legal Changes Related to the Human Rights Committee and the Covenant on Civil and Political Rights, 13 Hum. Rts. Q. 295, 1991.

[60] Mentor Borovci, Challenges in Implementation of Anti-Corruption activities in Kosovo: Kosovo Anti-Corruption Agency, available online.

[61] In recent years, the use of foreign fora – particularly the US – for prosecuting human rights abuses represents an exciting, if tenuous, use of international law to tackle corruption-related human rights violations. The extent to which US courts or courts in the EU may claim jurisdiction for human rights offences committed in other jurisdictions remains highly uncertain. See Beth Stephens, Judith Chomsky, Jennifer Green, Paul Hoffman, Michael Ratner, International Human Rights Litigation in U.S. Courts, 2008. For a more concise rendition, see Beth Stephens, Translating Filartiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations, 27 Yale J. Int'l L. 1, 2002. 

[62] European Convention on Human Rights, supra note 29, at First Protocol.

[63] Bertram Spector Svetlana Winbourne Laurence Beck, Corruption in Kosovo: Observations and Implications for USAID (2003), available online.

[64] The Anti-Discrimination Law, supra note 15.

[65] Such a salary level reflects the lowest multipliers in the Kosovo salary scale. Kosovo has a complex system whereby the highest salaries in the scale go to roughly €500, though exceptional salaries can be paid by different ministries ranging to about €1,200 per month. See OECD, Kosovo Public Service and the Administrative Framework Assessment, 11 (2008), available online.

[66] A number of authors are already trying to tie anti-corruption law with a rights-based approach. Indeed, according to Profs. Snider and Kidane, they argue that the Africa Union (AU) work on anti-corruption represents a better approach than the UN Convention Against Corruption because of the AU’s explicit focus on human rights. See Thomas Snider and Won Kidane, Combating Corruption through International Law in Africa: A Comparative Analysis, 40 Cornell Int'l L.J. 691 (2007).

[67] Supra note at 4.

[68] As previously discussed, sovereign liability represents a very slow moving area of administrative law (particularly in Kosovo). For a review of some of the issues, see C Evans, Damages for Unlawful Administrative Action: the Remedy for Misfeasance in Public Office, Int’l & Comp. L. Q. 31, 1982.

[69] The EU naturally lags behind the US in adopting legal provisions aimed at transferring liability to legal persons – particularly sovereign ones. See James Pfander, Government Accountability in Europe: A Comparative Assessment, 35 Geo. Wash. Int'l L. Rev. 611, 2003.

[70] For a review of the issues, see Christine Niemczyk, Boxing out Big Box Retailers: The Legal and Social Impact of Big Box Living Wage Legislation, 40 J. Marshall L. Rev. 1339, 2007.

[71] In theory, 7,400 civil servants in Kosovo must engage in bribe-seeking to survive. In 2007, however, only 47 cases were forwarded to the prosecutor’s office. Thus, the corrupt civil servant has a less than 1% probability of being prosecuted. 

[72] So why don’t countries like Kosovo already rely on the “upward” transfer of liability? Prosecutors refuse to prosecute for a number of reasons. When everyone is guilty, then prosecution of particular individuals remains politically difficult (and possibly unfair). Proving that senior managers had malicious intent when they designed particular policies comprises another important stumbling block in prosecuting such cases.

[73] Another interesting question revolves around whether courts or administrative instances have the right to impose such fines in Kosovo. As mentioned previously, administrative bodies, under article 138 of the Administrative Procedure Law, must “eliminate the consequences caused by illegal real acts.” Thus, showing that such fines eliminate such consequences necessarily validates the legality of such fines. We show below how a set of optimal fines for failing to protect and enforce particular provisions from human rights law necessarily eliminates the consequences of poor human rights enforcement.

[74] We use the example of Pristina University at one particular point in time and from one newspaper source to illustrate the economic model we present in this paper . We do not make any particular claims about the educational quality of Printina University per se.

[75] Administrative Procedure Law, supra note 16 at 138.

[76] Due to space limitations, we urge readers to follow a fuller exposition of this argument elsewhere. See Michael, supra note 18.