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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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Section 73(1) deals with passive domestic bribery and covers a person who corruptly accepts, obtains, agrees, offers to accept, or attempts to obtain a bribe. Requesting or soliciting a bribe is not expressly covered but may be covered by an ―offer to accept‖ or an ―attempt to obtain‖ a bribe. The offences in other statutes are different. Some statutes expressly include an official who asks for or proposes an agreement to obtain a bribe. There are also statutes whose bribery offences do not deal with passive bribery at all.

The offences in Section 73 Penal Code deal with additional modes of committing bribery. Concerning bribery through intermediaries, both the active and passive offences expressly cover bribery committed ―directly or indirectly‖.

As for third party beneficiaries, the passive bribery offence (Section 73(1) Penal Code) expressly covers a public official who accepts or obtains bribes ―for himself or any other person‖. However, there is no comparable language for the active bribery offence.

The Penal Code Section 73 offences cover bribery of a ―public officer‖, which is defined in Section 73(3) as a person in the official service of the Republic of Vanuatu. The definition expressly includes persons providing an ―honorary‖ (i.e. unpaid) service, members or employees of any local authority or public body, police officers, and judicial officers. The definition also expressly covers persons in the official service of the Republic within or outside the Republic. It is not clear whether this definition covers persons who perform a public function, including for a public agency or public enterprise, or provides a public service. A separate statute deals with bribery of members and officers of parliament.

The Penal Code Section 73 offences deal with bribery in order that an official acts or omits to act in his/her official capacity. This appears to cover an official who receives a bribe to perform or to breach his/her duty. But it might not include an official who uses his/her position outside his/her authorised competence (e.g. an official who uses his/her position to influence another official to provide an undue advantage to the briber). Case law was not available on this point. The active bribery offences in the Customs and Excise Acts are even narrower. They apply only to officials who intend to defraud the

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Government or to commit an unlawful act. The provisions therefore do not apply to officials who receive a bribe to commit a lawful act, e.g. issuing a permit.

Section 73(3) defines a ―bribe‖ as any money, valuable consideration, office or employment, or any benefit. The offences in the other statutes often follow a similar formulation. One exception is the offence that applies to members and officers of parliament, which covers ―any fee, compensation, gift or reward‖. ―Benefit‖ is not expressly included, raising the question of whether non-pecuniary advantages would be covered. For all offences - whether in the Penal Code or the additional statutes - there is no information on whether the definition of a bribe is affected by the value of the bribe, its results, the perceptions of local custom, the tolerance by local authorities, the alleged necessity of the bribe, or whether the briber is the best-qualified bidder.

Regarding the mental element, both offences in Section 73 cover bribery that is committed intentionally or recklessly. An offender must also give/receive the bribe ―corruptly‖, an undefined term. Ni-Vanuatu case law was not available to elaborate the meaning of ―corruptly‖. The same term has been used in U.K.

criminal statutes on corruption. U.K. case authorities interpreting this term are unclear and in ―impressive disarray‖. Some interpreted ―corruptly‖ to mean ―doing an act that the law forbids as tending to corrupt‖, while others required further proof that the accused acted dishonestly. Recent reform proposals in the U.K. by the Law Commission, the Government and a Parliamentary Joint Committee all favour eliminating the concept of ―corruptly‖. The U.K. Bribery Act 2010 accordingly rejected this concept. For similar reasons, the OECD Working Group on Bribery has also recommended that another country replace the term ―corruptly‖ in its foreign bribery offence with a clearer concept.

The Penal Code domestic bribery offences do not contain some defences to bribery that are commonly found in other jurisdictions. There are no express defences of small facilitation payments, solicitation or ―effective regret‖.

As mentioned above, at least seven other Ni-Vanuatu statutes contain criminal bribery offences. These offences generally deal with bribery of specific types of officials. The formulations of these offences differ greatly, both among themselves and from Section 73 Penal Code. For example, some only cover giving and accepting but not offering a bribe. Others cover only offering. Only some expressly cover third party beneficiaries or bribery through intermediaries.

Just one uses the term ―corruptly‖.

BRIBERY OF FOREIGN PUBLIC OFFICIALS

Foreign bribery is not an offence in Vanuatu. The Penal Code Section 73 offences cover bribery of a ―public officer‖, which is defined in Section 73(3) as

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a person in the official service of the Republic of Vanuatu. This definition clearly does not include officials of foreign countries or public international organisations.





LIABILITY OF LEGAL PERSONS FOR BRIBERY

Corporations (but not other types of legal persons) may be held liable for crimes (including bribery) in Vanuatu (Section 18 Penal Code). In the absence of judicial decisions, it is not clear how broadly the term ―corporation‖ would be interpreted.

The Penal Code is unclear on when liability would be imposed against the legal person. The Code specifies that a company is liable if ―the acts and intention of its principals or responsible servants may be attributed to the corporation.‖ The Code does not define who may be ―principals or responsible servants‖, for instance, whether the expression includes-low level employees.

The wording in Section 18 also suggests that the acts and intention of principals or servants are not always attributed to the company. Under what circumstances they will be attributed is not clear. Also unclear is whether corporate liability depends on the conviction of the principal or servant concerned. Case law is not available on these points.

On its face, the ni-Vanuatu Penal Code does not impose corporate liability for failure to prevent bribery or bribery arising from inadequate supervision. It is unclear whether courts would interpret the Code to impose such liability. There is no information on whether corporate compliance programmes affect liability. Also unclear is whether corporate liability can arise for bribery offences under the statutes outside the Penal Code.

The OECD Working Group on Bribery has recognised minimum standards for meeting the corporate liability requirement in the OECD AntiBribery Convention. These standards are instructive for meeting the comparable standard under the UNCAC. When deciding whether liability of

legal persons should be imposed, countries should take one of two approaches:

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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.

There is no information on whether criminal liability has been imposed against companies for bribery or any other crime.

JURISDICTION TO PROSECUTE BRIBERY

Territorial jurisdiction is covered by Sections 1 and 2 of the Penal Code.

The Code applies to any act done or omitted to be done within the territory of Vanuatu. For offences that take place partly abroad, the Penal Code applies only if an element of the offence has taken place within the territory of Vanuatu.

Penal Code Section 4 provides for nationality jurisdiction. A Ni-Vanuatu citizen may be prosecuted for an act or omission that constitutes a crime if it had occurred in Vanuatu, and if it constitutes a crime where it occurred.

However, the Ni-Vanuatu national cannot be punished more severely than the maximum penalty prescribed by the law where the act or omission occurred.

The prosecution also requires the written consent of the Public Prosecutor.

Since this provision applies only to Ni-Vanuatu ―citizens‖, it likely does not apply to legal persons incorporated in Vanuatu.

SANCTIONS FOR BRIBERY

For the bribery offences under Penal Code Section 73, natural persons are punishable by 10 years‘ imprisonment or a fine of up to VUV 365 000 (approximately USD 3 000 or EUR 2 400). Jail sentences may be suspended.

Legal persons are subject to the same maximum fine since they are liable ―to the same extent as natural persons‖ (Penal Code Section 18). Convicted offenders may also have to pay prosecution costs.

On its face, the maximum fine available under the Penal Code may be low, especially for corporate defendants (against whom imprisonment cannot be imposed). In one case reported in 2002, the offender paid a bribe of VUV 500 000, i.e. substantially greater than the maximum fine. As well, the bribery offence in one other statute (Customs Act Section 59) has a maximum fine that is 10 times higher than Penal Code Section 73.

Outside the Penal Code, the maximum fines for bribery can be much higher. For example, bribery under the Customs Act is punishable by 10 years‘ imprisonment, a fine of VUV 5 million (approximately USD 42 000 or

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EUR 33 000), or both. One notable exception is bribery of parliamentarians, which is punishable by 3 years‘ imprisonment, a fine of VUV 150 000 (approximately USD 1 300 or EUR 1 000) or both. It is unclear whether companies can be held liable under the non-Penal Code bribery offences.

Section 53 of the Penal Code provides for the confiscation of the bribe and the proceeds of bribery. The Proceeds of Crime Act 2002 (POCA) can also be used for the same purpose. The POCA (but not the Penal Code) allows a fine of an equivalent amount to be imposed if confiscation is not possible (e.g. if the bribe or the proceeds have disappeared). Almost all of the non-Penal Code bribery offences do not contain specific provisions for confiscation.

Nevertheless, the confiscation provisions in POCA will apply if the statutory maximum penalty for the offence is at least 12 months‘ imprisonment.

Information was not available concerning the availability of administrative sanctions for bribery, such as debarment from holding public office or seeking government public procurement contracts.

Statistics are not available on the actual sanctions that have been imposed for bribery. However, courts have stated that ―[i]n general, a term of imprisonment is inevitable, save in exceptional circumstances or where the amount of money corruptly received is small. However, the Court should pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence.‖ Courts have also imposed fines, confiscated bribes, and ordered a defendant to pay the costs of the prosecution.

TOOLS FOR INVESTIGATING BRIBERY

There is limited information on the investigative tools available for investigating bribery in Vanuatu. Criminal Procedure Code Sections 55-59 allow courts to issue warrants to search and seize evidence of an offence. The provision is available for investigating bribery offences. Pre-trial search and seizure are also available to ensure that funds are available for confiscation upon conviction.

International assistance is available for investigating bribery. Vanuatu may seek search and seizure from a foreign state for offences that are punishable by 12 months‘ imprisonment, while extradition and less coercive forms of mutual legal assistance (e.g. taking testimony) are available in investigation of all criminal offences. Bribery under the Penal Code is punishable by 10 years‘ imprisonment and thus falls well within these thresholds.



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