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«the Pacific THE CRIMINALISATION OF BRIBERY IN ASIA AND THE PACIFIC Frameworks and Practices in 28 Asian and Pacific jurisdictions Thematic Review – ...»

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Tax information is available under a similar procedure. The NACC may demand the production of documents from ―a Government official, official or employee of a Government agency, State agency, State enterprise or local administration‖ (OACC Section 25(1)). This allows the NACC to demand tax records from the tax authorities. The NACC may also demand a person under investigation to produce his/her tax records (OACC Section 79).

Covert investigative techniques are unavailable in bribery cases. Thai authorities state that there are no legislative provisions that specifically authorise the NACC to use undercover operations, controlled deliveries, wiretapping, secret surveillance, or listening and bugging devices in bribery investigations. However, the Anti-Money Laundering Office may use some covert techniques (e.g. wiretapping) in money laundering cases, including those involving the laundering of the proceeds of bribery.

Bank and financial accounts may be frozen, though perhaps with some difficulty. OACC Section 78 authorises the NACC to freeze assets or financial transactions when investigating an offence that a public official possesses unusual wealth, but not an offence of bribery per se. The anti-money laundering authorities have freezing powers for bribery offences (AMLA Sections 35 and

48) but they are not responsible for investigating bribery cases per se. Nor are the freezing powers under the AMLA extended to the NACC. NACC and the anti-money laundering authorities must therefore co-ordinate to freeze assets in bribery cases not involving possession of unusual wealth, which could be especially challenging when assets may disappear imminently.

International assistance is available in bribery investigations. The Mutual Assistance in Criminal Matters Act, B.E. 2535 allows mutual legal assistance (MLA) to be sought for all criminal offences. For extradition, Thailand will grant extradition only if the conduct underlying the request is punishable in Thailand ADB/OECD Anti-Corruption Initiative for Asia and the Pacific Thailand 489 by one year‘s imprisonment if it was committed there (Extradition Act, B.E.

2472, Section 4). The Act does not impose a similar requirement when Thailand seeks extradition from a foreign country, but foreign countries may impose the one-year threshold due to reciprocity. In any event, all of Thailand‘s bribery offences are punishable by more than one year‘s imprisonment and would qualify for extradition.

Plea bargaining is not available in Thailand. According to Thai authorities, they cannot offer an accused immunity from prosecution or a more lenient sentence in return for the offender‘s co-operation or testimony. However, a court has discretion to take into account an offender‘s co-operation with the authorities. Witness protection is available, but co-operating with the authorities in an investigation is not a precondition for protection (Witness Protection Act B.E. 2546). The Thai authorities add that Criminal Procedure Code Section 176 allows a court to dispose of a case against one accused in order that he/she assists in the prosecution of another co-accused.

ENFORCEMENT OF BRIBERY OFFENCES

As noted earlier, the NACC is the principal body for investigating bribery cases in Thailand. Once an investigation is complete, the case is transferred to the Prosecutor-General (PG) for prosecution. If the PG decides not to commence prosecution because the dossier is incomplete, the matter is referred to a committee consisting of representatives of the NACC and the PG.

If the committee cannot resolve the impasse, the NACC takes over the case‘s prosecution (OACC Sections 91 and 97).

Only limited enforcement statistics were available. A 2007 report states that the National Counter Corruption Commission (the NACC‘s predecessor) received approximately 2 000 reports per year, of which 1 200 are investigated, and 10% of which result in prosecution. The Thai authorities add that, from 2007 to 2009, the NACC passed resolutions on 206 cases of alleged corruption, 25 of which involved bribery. The Supreme Court has decided 152 cases involved bribery, but only 4 in 2007-2009.

RECOMMENDATIONS FOR A WAY FORWARD

Thailand has made significant efforts in criminalising bribery offences. To further enhance compatibility with international standards, it could consider addressing the following issues.

–  –  –

Elements of the Active and Passive Domestic Bribery Offences Thailand‘s general bribery offences already meet many aspects of international standards, such as their express coverage of different modes of passive bribery. Thailand also exceeds standards by criminalising bribery of persons expected to be officials. To further improve its bribery offences, the

Thailand could consider addressing the following areas:

–  –  –

Bribery of Foreign Public Officials To bring its criminal bribery offences into line with international standards, Thailand should enact an offence to criminalise the bribery of officials of foreign governments and public international organisations in the conduct of international business.

–  –  –

Liability of Legal Persons for Bribery The Thai legal system recognises criminal liability of legal persons, but it is not entirely clear whether such liability can be imposed for bribery. Even if such liability is possible, it is unclear when liability would arise, e.g. whether and how a crime committed by a natural person is attributed to a legal person.





Procedural issues create further uncertainty. To ensure compliance with international standards, Thailand could consider amending its legislation to expressly address these issues, and to ensure its system for imposing

corporate liability takes one of two approaches:

(a) The level of authority of the person whose conduct triggers the liability of the legal person is flexible and reflects the wide variety of decision-making systems in legal persons.

(b) Alternatively, liability is triggered when a person with the highest level managerial authority (i) offers, promises or gives a bribe to an official; (ii) directs or authorises a lower level person to offer, promise or give a bribe to an official; or (iii) fails to prevent a lower level person from bribing an official, including through a failure to supervise him/her through a failure to implement adequate internal controls, ethics and compliance programmes or measures.

Jurisdiction for Prosecuting Bribery

Thailand has jurisdiction to prosecute bribery that takes place wholly or partly in its territory, or when the consequences of an offence are felt there. To strengthen its jurisdictional base for prosecuting bribery, Thailand could

consider addressing the following issues:

(a) Nationality jurisdiction to prosecute bribery cases; and (b) Extending extraterritorial jurisdiction in CC Section 9 to passive bribery of officials of SOEs.

Sanctions for Bribery Bribery is punishable in Thailand by death, imprisonment, confiscation and/or fines, though the maximum available fines are low. If corporate liability is available, then the maximum available fines are wholly inadequate.

Furthermore, the adequacy of the sanctions imposed in practice is unclear, since the Thai authorities were unable to provide the necessary statistics.

Thailand could therefore consider addressing the following issues:

–  –  –

(c) Availability of a fine in lieu of confiscation (i.e. value confiscation);

(d) Availability of administrative sanctions, such as blacklisting and debarment from seeking public procurement contracts; and

–  –  –

Tools for Investigating Bribery Some basic tools for investigating bribery are available in Thailand. To enhance the ability of law enforcement to investigate bribery, the following

matters could be addressed in the context of bribery investigations:

–  –  –

Enforcement of Bribery Offences There is some anecdotal evidence that the NACC receives a large number of complaints annually, many of which result in prosecutions. Thailand could consider maintaining detailed statistics on the investigation, prosecution, conviction and sanctions for bribery offences. Such detailed statistics would be necessary to assess the effectiveness of Thailand‘s enforcement regime.

RELEVANT LAWS AND DOCUMENTATION

National Anti-Corruption Commission (NACC): www.nccc.thaigov.net

–  –  –

NOTES The offence also covers trafficking in influence.

See OECD Convention, Article 1(4)(c) and Commentary 19.

For example, Section 53 of the Anti-Trafficking in Persons Act B.E 2551 (2008) and Section 61 of the Anti-Money Laundering Act 1999 create specific criminal offences against ―juristic persons‖ for human trafficking and money laundering respectively.

Case No. 1669/2506 and No. 548/2508.

OECD (2009), Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions, Annex I.

See also IMF (2007), Thailand: Detailed Assessment Report on Anti-Money Laundering and Combating the Financing of Terrorism, para. 276 (www.imf.org/external/pubs/ft/scr/ 2007/cr07376.pdf).

AMLA Sections 51and 3 (definition of ―asset involved in an offence‖).

Applicable treaties and foreign law may impose additional requirements.

Applicable treaties and foreign law may impose additional requirements.

Commercial Banking Act, Section 46. See also IMF (2007), Thailand:

Detailed Assessment Report on Anti-Money Laundering and Combating the Financing of Terrorism, para. 419.

ADB/OECD Anti-Corruption Initiative for Asia and the Pacific Vanuatu Penal Code of Vanuatu Corruption and Bribery of Officials (From www.paclii.org) 73. (1) No public officer shall, whether within the Republic or elsewhere, corruptly accept or obtain or agree or offer to accept or attempt to obtain, any bribe for himself or any other person in respect of any act done or omitted, or to be done or omitted, by him in his official capacity.

Penalty: Imprisonment for 10 years.

(2) No person shall corruptly give or offer or agree to give any bribe to any person with intent to influence any public officer in respect of any act or omission by him in his official capacity.

Penalty: Imprisonment for 10 years.

(3) For the purposes of this section, "bribe" means any money, valuable consideration, office or employment, or any benefit, whether direct or indirect, and the expression "public officer" means any person in the official service of the Republic (whether that service is honorary or not and whether it is within or outside the Republic) any member or employee of any local authority or public body and includes every police officer and judicial officer.

INTRODUCTION

As of May 2009, Vanuatu has not yet signed nor acceded to UNCAC. It has been a member of the APG since 1999. Vanuatu has a unified legal system based on British common law and French civil law. Its criminal bribery offences have not been externally reviewed.

–  –  –

Vanuatu‘s main bribery offences are found in Section 73 of the Penal Code. As seen below, there are some inconsistencies between the active and passive bribery offences. In addition, bribery of various types of public officials is covered in at least seven other statutes. Many of these offences overlap and are inconsistent with the Penal Code offences. This report focuses on the Penal Code offences but refers to the other offences where relevant.

ADB/OECD Anti-Corruption Initiative for Asia and the Pacific 496 Criminalisation of Bribery in Asia and the Pacific Section 73(2) Penal Code concerns active domestic bribery and covers a person who corruptly gives, offers, or agrees to give a bribe. A promise to bribe is not expressly covered, nor is there case law to confirm that it is covered.

There is also no case law to clarify whether the offence covers bribes that are made but not received, and bribes that are rejected by an official. Also unclear is whether the term ―intent to influence any public officer‖ would restrict the offence to ―trading in influence‖ cases.



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