1.1 Research Question

A comparative study of 88 national parliaments in 2007 found that 76% of them are empowered to set up committees of inquiry (ipu, 2007). Another comparative study of 20 EU member states found that inquiry committees “often have lots of visibility and political importance”, and can “lead to concrete societal, administrative or legislative changes” (European Parliament (2020). However, the specific role of parliamentary inquiry committees in connection with one of the most sensitive topics has not yet been discussed: state corruption.

Moreover, during the general discussion of what tools could be used to fight corruption in the public sector, parliamentary inquiry committees are not mentioned once. For example, a study on the “Role of Parliament in Curbing Corruption” (Stapenhurst, Pellizo, & Johnston, 2006) does not mention inquiry committees. Likewise, the “Global Organization of Parliamentarians Against Corruption” (gopac) issued a “Parliamentarian’s Handbook” on “Controlling Corruption”, without making any reference to inquiry committees either (gopac, 2005). Similarly, there is no reference to committees of inquiry in the “Anti-Corruption Assessment Tool for Parliamentarians” (gopac, 2013); the 655-page United Nation’s “Anti-Corruption Toolkit” (UN, 2014); the 244-page osce “Handbook on Combating Corruption” (osce, 2016); or the 56-page United Nations Convention against Corruption.

This article intends to fill this gap and examine what added value parliamentary inquiry committees can bring to the fight against corruption. It thus analyses their relevance in practice, their impact, and their main differences from conventional anti-corruption bodies.

1.2 Methodology

The added value of parliamentary inquiry committees for fighting corruption can best be illustrated by focusing on a strong model. In this regard, the comparative literature on the topic points towards the German model: It is anchored in the Constitution, has powers to collect evidence similar to criminal courts, and the political opposition has equal powers in collecting evidence and in most other procedural decisions (ipu, 2007). Parliamentary inquiry committees in other jurisdictions, such as France, the United Kingdom or the United States are seen as weaker, not only for lacking an explicit constitutional basis, but also, and in particular, for the lack of equal opposition rights. Without such opposition rights, “the interest of the parliamentary majority prevailed […] to protect the government it supported from criticism” (Butzer, 2015; see also Klein, 2015).

The following analysis reviews the parliamentary resolutions on establishing all 63 inquiry committees convened in Germany since the adoption of the constitution in 1949. If any part of the formal mandate defined in the parliamentary resolutions concerns corruption, the inquiry committee is counted as relevant to corruption. If more than half of the number of inquiry questions concerned corruption, then the inquiry is counted as “predominantly” concerning corruption. In addition, the analysis reviews the final reports of committees, to reveal whether any aspect of corruption was added to the inquiry later on.

As for the term “corruption”, there is only one standard which has both legal relevance, and uniform global acceptance: the United Nations Convention against Corruption (uncac) of 2003. The Convention has been signed so far by 181 out of 193 UN member states, including all European Union member states. It establishes a set of universally accepted prohibitions, the violation of which is considered corruption. Thus, the statistical analysis by the authors is based on the public corruption offences outlined by this Convention (article 7 par. 4 and Chapter iii). The Convention did not explicitly address two aspects of corruption: political finance violations and lobbying violations (Van Aaken, 2005; gopac, 2013). Both aspects are particularly important in the context of state corruption. As such, for the purpose of this analysis the only two other international standards formulated on both these additional aspects of corruption will be used to complement the definition set out in the uncac: the article 16 “Sanctions” of the Council of Europe Recommendation Rec(2003)4 setting out common rules against corruption in the funding of political parties and electoral campaigns, and the Chapter G “Sanctions” of the Council of Europe Recommendation cm/Rec(2017)2 on the legal regulation of lobbying activities in the context of public decision-making.

When attempting to assess the impact of inquiry committees, it is impossible to measure the exact effect one stakeholder has in a complex environment of numerous visible and invisible influences like state politics. However, there are examples where evidence from open sources has established a causal link between parliamentary inquiries and subsequent measures. For instance, in some cases draft bills or political statements may explicitly refer to the findings of an earlier parliamentary inquiry, the resignation of a minister may follow the publication of incriminating findings by an inquiry, or the prosecution services may initiate investigations following an inquiry. The analysis of the impact of parliamentary inquiries presents such examples based on explicit links found in open sources such as parliamentary documents, media reports, and academic literature.

2.1 Overview

Of the 63 inquiry committees set up since the adoption of the (West-) German constitution in 1949, about 50% (28 inquiries) were related to corruption, and 20% (of the total) were predominantly concerned with it. For comparison: In the national crime statistics of 2019, corruption cases make up only 0.75% of all cases registered by the police (bmi, 2020, p. 10; bka, 2020, p. 6).

Of the 28 corruption-related inquiries, only about 22% concerned corruption sanctioned by the Criminal Code, while most of the inquiries (about 78%) looked into corruption cases for which, by and large, no formal sanctions exist:

1. –Bribery: 11 inquiries, of which 2 concerned bribery of parliamentarians unsanctioned by the German Criminal Code until 1994/2014;
2. –Embezzlement: 1 inquiry;
3. –Trading in influence (unsanctioned by the German Criminal Code): 2;
4. –Abuse of function (unsanctioned by the German Criminal Code): 17;
5. –Conflicts of interest (unsanctioned by the German Criminal Code): 7;
6. –Undue political financing (largely unsanctioned at the time): 3;
7. –Undue lobbying (largely unregulated and unsanctioned; the Law of 25 March 2021 on the Lobby-Register [LobbyRG] will come into force in Germany in 2022): 5.

The following two areas illustrate the added value of parliamentary inquiries:

2.2 Bribery of Parliamentarians

No criminal provision sanctioned the bribery of deputies until 1994 (when the 28th Criminal Law Amendment Act was adopted). Parliamentary inquiries, then, were the only forum of public power for collecting and analysing evidence of such abuses. Two inquiries are noticeable in this regard:

The first ever inquiry established by the Bundestag (1950–1951) was triggered by a press article claiming that deputies had been bribed with the amount of dm 2 million to turn the vote on the location of the future capital of West Germany (German Bundestag, 1951a, p. 1). One mp had stated that approximately a hundred deputies had received bribes ranging between dm 1,000 and dm 20,000 each (German Bundestag, 1951a, p. 4). The inquiry committee concluded that only some deputies had been bribed (German Bundestag, 1951a, p. 23).

Another inquiry, from 1973–1974, concerned a motion by the opposition leader Rainer Barzel (cdu) to replace Chancellor Willy Brandt (spd). One of the motives was Brandt’s intention to recognize the (East) German Democratic Republic. The motion failed by two votes. Media articles reported that the Secretary of the spd faction, Karl Wienand, had bribed mp Julius Steiner (cdu) to the tune of dm 50,000 to vote against Barzel’s motion. The inquiry committee concluded that it was most likely that the bribery had occurred (German Bundestag, 1974, p. 58). In 1997, the former head of East Germany’s internal secret services confirmed that the service had bribed Steiner – whether in addition to Wienand or instead could not be clarified (Wolf, 1997, p. 261).

It is interesting to note that loopholes in the criminalisation of bribery also existed in the area of private sector corruption. Bribery in commercial transactions was criminalised only in 1997 (§ 299 Criminal Code). This oversight meant that about 100 employees of nuclear plants bribed in the “Transnuklear”-scandal could not be prosecuted. However, a parliamentary inquiry (1988–1990; see below at 5.2) documents this scandal on 1,422 pages, inter alia after hearing 99 witnesses (for the reorganisational consequences see also section 5.3 below).

2.3 Political Finance

Criminal sanctions, including forfeiture for political finance violations, were introduced only in 2002 (§§ 31a and 31d Law on Political Parties). It is only thanks to parliamentary inquiries that two large-scale scandals on illicit donations were investigated and documented in detail.

The first of these major scandals involved the German industrialist, Friedrich Karl Flick, one of the world’s richest men at the time – and came to be known as the Flick Affair. In 1981, tax inspectors discovered that Flick had been secretly donating the equivalent of at least dm 26 million (~€13 million) to all of the leading German political parties (German Bundestag, 1986, Annex 1, p. 19). In return for the donations, Flick allegedly bought his business political favours worth dm 986 million (~€420 million; Deutschlandfunk, 2005). As donations, the cash-flow would not have been tax exempt or privileged. Therefore, part of the money was channelled via tax-privileged charity trusts. Tax investigations into one of the charity trusts revealed the whole scandal and led to a search of Flick’s headquarters. A hidden cash-journal was found documenting a large number of shadow donations (German Bundestag, 1986, p. 4; Der Spiegel, 2009). Eventually, three men were brought to trial – Flick’s business manager, as well as one former, and one sitting minister of economic affairs – and were convicted of tax evasion or of assisting tax evasion, and the conviction was upheld through all instances up to the Constitutional Court (2 BvR 385/87). However, the heart of the scandal – scores of illicit political finance donations – remained without any administrative or criminal sanction. The final report by the parliamentary inquiry (1983–1986) is the result, inter alia, of hearing 49 witnesses; it details, on 476 pages, a sleazy scandal, and is a treasure trove for anybody looking for illustrative material on how political finance regulations can be circumvented in practice.

The second major inquiry, conducted from 1999–2002, started on 4 November 1999, with the issue of an arrest warrant for the treasurer of the conservative party Walther Leisler Kiep by the district court in Augsburg, Bavaria. The court suspected him of tax evasion in relation to a donation equivalent to dm 1 million (~€500,000) by a well-known arms lobbyist and businessman. The donation was transferred in cash at a parking lot in Switzerland (German Bundestag, 2002, pp. 25, 152). After hearing 117 witnesses and 17 experts, the parliamentary inquiry concluded with a 944-pages report, detailing a staggering system of black accounts and slush funds held by the governing political party.

3.1 Legislation

Both of the inquiry committees on political finance led to substantial legislative reforms (Diefenbach-Trommer, 2016; Lenz 2002, p. 769). The Law Amending the Law on Political Parties and other laws of 22 December 1983 made amendments to the Political Parties Act regarding party donations. These included the Members of Parliament Act regarding the obligation of mp s to report their supplementary income, the Tax Code regarding non-profit law and the Income Tax Act regarding tax exemptions to prevent further party financing violations.

In 2002, again, significant changes were made to the Political Parties Act in connection with donations, other income received by political parties and monitoring by financial reports. Most importantly, § 31d introduced the first criminal offence of donation fraud to the Political Parties Act (Lenz, 2002, pp. 770, 773, 777). Before this amendment, only embezzlement to the detriment of the party was a crime and only under the general offences of the Criminal Code.

Looking beyond Germany, parliamentary inquiries may even lead to legislative referendums. In Austria, the referendum on “the rule of law and anticorruption”, held in June 2021, explicitly builds on the results of the “Ibiza”-Inquiry by the Austrian Parliament (Deutschlandfunk, 2021), investigating a comprehensive corruption scandal at the highest echelons of politics.

3.2 Reorganisation

An example of reorganisational measures is the “Transnuklear”-Inquiry (1988–1990). This inquiry revolved around allegations that nuclear companies had bribed around 100 employees from German nuclear power plants and electricity companies in order to obtain lucrative disposal contracts. Media articles reported that diverted fissile material had been shipped to Libya and Pakistan, violating the terms of the Nuclear Non-Proliferation Treaty. Allegedly millions had been paid in bribes and visits to brothels and trips were financed (German Bundestag, 1990, p. 12). One consequence of the scandal and the inquiry into it was the creation of the Federal Office for Radiation Protection, which began its work in November 1989 while the inquiry was still ongoing (German Bundestag, 1990, p. 113). The new Office was charged with supervising nuclear safety, the transport of radioactive materials and the disposal of radioactive waste (German Federal Office for Radiation Protection, 2015, p. 13).

3.3 Political Accountability

Resignations take place in most cases before an inquiry committee starts, as for example the resignation of former Minister of Defence Franz Josef Jung in November 2009, just before the “Kunduz”-Inquiry Committee resumed its work in December 2009. Former Minister of Defence Franz Josef Strauß therefore allegedly opined that political accountability is already over at the time when an inquiry committee is established (SZ.de, 2020). However, there are also examples of politicians resigning during or in the wake of a parliamentary inquiry. For example, the then President of the Bundestag, Rainer Barzel, handed in his resignation in October 1984 as a consequence of allegations regarding bribery that were brought against him during the course of the “Flick” Inquiry (Der Spiegel, 1984, 2006). Similarly, Prime Minister Björn Engholm had to resign in 1993 due to the false testimony he had given in front of an inquiry committee in 1987 (ndr, 2013).

3.4 Criminal Procedures

In corruption cases, parliamentary inquiries usually follow criminal investigations or at least take place in parallel with them. Still, for other criminal offences there have been instances where parliamentary inquiries have clearly been the causal trigger for criminal investigations. For example, the detection of a rendition flight by the cia passing through German airspace in 2001 by a parliamentary inquiry in 2009 compelled the Federal Prosecutor’s Office to open a criminal case against the (unknown) cia agents involved (Hoppe, 2015, § 10 no. 46). The same parliamentary inquiry identified the victim of an alleged kidnapping by the cia, something which security services had failed to achieve for years (Stern, 2008), opening the way for a criminal investigation of the case.

4.1 The Governing Majority Does Not Want to Look at Its Own Corruption

Over the last 30 years, foreign aid donors have spent hundreds of millions of Euros on international anti-corruption projects in all parts of the world. Most, if not all, of these efforts face a similar dilemma: Wherever an anti-corruption project is needed, whether it be in Afghanistan, Bosnia and Herzegovina, Yemen, or Zimbabwe, it is because the ruling forces are deeply entangled in corruption. This usually affects all three branches of state power. At the same time, the corrupt elites in power have no interest in seeing real changes: corruption feeds their wealth and power, and so they cling to the status quo (Hoppe, 2021). In light of this, it is almost a paradox that foreign or international donors wanting to fight corruption in any of these countries have no choice but to engage with these corrupt elites.

The results are often meagre and remain largely window-dressing (Mason, 2019): new strategies and laws without implementation; new integrity bodies without funding or power; or training on new tools which may excite their participants (or not) – but which in the end do not change the established daily working routines.

The reason is obvious: The governing elite, generally already in power for more than one voting period, controls not only the ministries and parliament, but also the prosecutor’s office and the courts (Hellmann & Jones & Kaufmann, 2003). Within the state structure, opposition factions in parliament are often the only stakeholders with an interest in shedding light on corruption. While opposition parties have their voices heard in the plenary for denouncing corruption, they have no power to lead in-depth inquiries.

4.2 Game Changer: Empowering the Opposition to Meaningful Enquiries

How would the scenery change if opposition factions in parliament were empowered to lead inquiries into corruption scandals? What if they could collect evidence? Or summon public officials for testimony? Several constitutions grant the opposition the right to set up committees of inquiry.² However, setting up a committee will not have significant consequences so long as the majority is able to determine the shape of the inquiry, in particular by deciding what evidence will be collected and how, and how it will come up with findings.

Against this background, the German model of inquiry committees provides an interesting example: The constitution allocates equal powers to the political minority in all aspects. Thus, 25% of committee members can decide on what evidence to collect, and how to enforce collection; they can convene meetings, publish their own findings, and appeal to the courts if necessary. Until 2014, when Austria adopted a similar model, such a wide set of opposition rights had existed only in Germany (Austrian Parliament, 2014).

4.3 Parliament: No State Body has Wider Jurisdiction

The object of parliamentary investigations can be anything within the jurisdiction of parliament. In this regard, inquiry committees have been particularly fruitful for Germany. Many corruption offences sanctioned under foreign criminal codes and as recommended by international conventions were legal in Germany for decades, and some still are. Bribery of parliamentarians remained without sanction until 1994, and applied only narrowly until 2014 (§ 108e Criminal Code). Abuse of office in conflicts of interest, trading in influence, or illicit enrichment, which are criminal offences for example in Austria or France, are simply unknown to the German Criminal Code. Criminal sanctions including forfeiture for political finance violations were introduced only in 2002 (§§ 31a and 31d Law on Political Parties).

Thus: For a wide range of corruption offences, executive or judicial authorities simply could not investigate, as no statutory offence existed, and, in some regards, still does not. As a result, parliamentary investigations have been and remain today the last resort to fall back on for many corruption scandals – they are the only means to ensure accountability and transparency under the umbrella of state power.

5.1 Lack of Awareness

The obvious potential of inquiry committees as an anti-corruption tool stands in stark contrast to its almost full neglect in the relevant forums. However, international representatives have long deplored the fact that “[h]istorically, donors have neglected parliaments, preferring instead to channel their assistance through executives and civil society organisations” (Von Trapp, 2008, p. 1). At the same time, parliaments are seen as “potentially vital allies for donor agencies in improving domestic accountability” (oecd, 2014, p. 113). This is all the more the case considering that inquiries falling under the umbrella of the government have rarely proven to be more than “theatre” (cf. e.g. Kirya, 2011, p. 314).

5.2 Arguments

Are parliamentary inquiries into corruption (and other scandals) a privilege of more-established democracies, or could younger democracies benefit from them as well? Possible arguments against transposing this instrument into the toolkit of transition countries include:

“Young democracies are too young for this”

Indeed, inquiry committees can only flourish in a fertile environment of rule of law and governance: they require sufficient capacities in the parliament’s administration to absorb the bureaucratic turnover of an inquiry, enforcement structures for summoning witnesses, procedures for protecting classified information during an inquiry, file management in the government allowing for the seizure of documents, a media landscape able and willing to inform citizens about the background and progress of the inquiry, or a judiciary willing to enforce the rights of the parliamentary minority. Furthermore, it takes time until parliament, government, the media, the judiciary, and society at large find the right balance when carrying out parliamentary inquiries. However: Is this not true for any anti-corruption offence or tool newly introduced? Or for democracy itself?

“This will only be possible after constitutional changes”

The Slovakian Constitutional Court decided, in 1996, that inquiry committees would violate the separation of powers unless they had a legal basis in the Constitution (European Parliament, 2020, p. 10). In fact, it seems rather obvious that only a constitutional basis could justify the scope of law enforcement powers a parliamentary inquiry should have, such as summoning witnesses or seizing documents. However, international reform projects regularly entail constitutional changes, such as those limiting the immunities of public officials (Hoppe, 2011), obliging public officials to disclose their wealth, or for vetting the integrity of sitting judges (Hoppe, 2014; 2021). There is no reason why this could not be done in order to establish inquiry committees.

“We do not want to empower the opposition (=former regime)”

Once civil society manages to overthrow a totalitarian regime and begins establishing democracy, remnants of the old regime stay on, quite often in form of a rather powerful opposition. Whether in Chile, Ukraine, or in Zimbabwe, this “annoying leftover” of the despised former regime sitting on the opposition benches is a regular phenomenon. In light of the risk of falling back under the old regime, it is tempting to avoid doing anything which might give this opposition any unnecessary power. However, unless an inquiry committee is enshrined in the constitution at the moment of regime change, the chances are small it will ever be done later. Ruling majorities usually have no interest in empowering the opposition (c.p. Institute Alternative, 2012). It took decades of alternating political forces experiencing the frustration of opposition in a parliamentary inquiry until Austria decided to introduce minority rights similar to those in Germany in 2014 (Austrian Parliament, 2014).

5.3 Possible Entry Points

The most promising entry point for a constitutional reform appears to be a fundamental change of government, often after a civic uprising, when constitutions are renegotiated within a new balance of political power. The prospect of joining international or supranational organisations such as the EU or nato might also suffice as an incentive for introducing the relevant constitutional reforms. If neither of these two extraordinary opportunities for reform exist, it seems still worthwhile to take the “long road” of convincing political forces and civil society to enact such a reform. It might take more than one voting period for a political faction to realise that it will benefit “next time”, should it be in opposition again.