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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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ADB/OECD Anti-Corruption Initiative for Asia and the Pacific Vanuatu 501 Less clear, however, is the ability of law enforcement to seek information protected by secrecy during a bribery investigation. Vanuatu has strict secrecy laws, particularly for information concerning or held by international companies, exempted companies (including banks and insurance companies) and trusts.

It is not clear to what extent the general search and seizure provisions in the Criminal Procedure Code override these secrecy provisions.

Special investigative techniques do not appear to be available in bribery investigations. The Criminal Procedure Code does not contain provisions on wiretapping, secret surveillance, undercover operations, or controlled deliveries.

There are also no provisions on plea negotiations or the use of co-operative informants or witnesses, and it is not clear whether such tools are used in practice. Also absent are provisions concerning immunity from prosecution for persons who cooperate in corruption investigations or prosecutions.

ENFORCEMENT OF BRIBERY OFFENCES

The Vanuatu National Police Service is responsible for criminal bribery investigations, while the Attorney General has conduct of bribery prosecutions.

Statistics on the number of investigations, prosecutions and convictions of bribery were not available.

RECOMMENDATIONS FOR A WAY FORWARD

Vanuatu has already made significant efforts in criminalising bribery offences. To further enhance compatibility with international standards, Vanuatu could consider the following.

Elements of the Active and Passive Domestic Bribery Offences Vanuatu‘s Penal Code bribery offences already contain several positive features that broadly conform to international standards. For instance, the offences expressly cover third party beneficiaries for passive bribery. They define public officials to include persons performing honorary service, and officials both in and outside ni-Vanuatu territory. The definition of a bribe also broadly covers both money and non-pecuniary advantages.

To improve the bribery offences, Vanuatu could consider further

addressing the following areas:

(a) The overlapping offences in several statutes;

–  –  –

Bribery of Foreign Public Officials To bring its criminal into line with international standards, Vanuatu 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 Vanuatu may hold corporations criminally liable for bribery under the Penal Code. This provision is commendable, since international standards require legal persons to be held liable for bribery. To improve the effectiveness of this regime, Vanuatu could consider whether its system for imposing

corporate liability takes one of two approaches:

–  –  –

Jurisdiction for Prosecuting Bribery In addition to territorial jurisdiction, Vanuatu also has nationality jurisdiction to prosecute natural persons for bribery. This is in line with international standards. To ensure its overall jurisdictional basis for prosecuting

bribery is sufficiently broad, Vanuatu could address the follow matters:

–  –  –

(b) The sufficiency of the maximum penalties for bribery under the bribery offences outside the Penal Code, especially for bribery of members and officers of parliament.

–  –  –

Tools for Investigating Bribery Based on the limited information available, Vanuatu could improve its

ability to investigate bribery cases by addressing the following issues:

–  –  –

Enforcement Statistics are an essential tool for evaluating whether a scheme of criminalising bribery is effective. Vanuatu could therefore consider maintaining full and current statistics on investigations, prosecutions, convictions of bribery for both natural and legal persons. It could also maintain statistics on the number and nature of sanctions imposed in bribery cases, including confiscation.

RELEVANT LAWS AND DOCUMENTATION

Penal Code and other Ni-Vanuatu legislation and judicial decisions:

www.paclii.org

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NOTES These include Casino Control Act, s. 68; Customs Act, s. 59; Excise Act, s. 54; Leadership Code Act, ss. 23 and 30; Members of Parliament (Powers and Privileges) Act, s. 13; Ports Act, s. 33; and Shipping Act, s. 14.

For example, see Casino Control Act, s. 68(1)(a. See also Customs Act, s.

59(2); and Excise Act, s. 54(2).

For example, see Ports Act, s. 33; and Shipping Act, s. 14.

Members of Parliament (Powers and Privileges) Act.

Penal Code, Section 6.

Public Bodies Corrupt Practices Act 1889 and Prevention of Corruption Act 1906.

See OECD (1999), Phase 1 Report: United Kingdom, Section 1.1.2; U.K.

Law Commission (2008), Reforming Bribery, para. 2.33; D. Lanham, ―Bribery and Corruption‖, Essays in Honour of J C Smith (1987) 92 at p. 104.





The U.K. Law Commission (2008), Reforming Bribery (Law Com No. 313);

U.K. Ministry of Justice (March 2009), Bribery: Draft Legislation, Cm 7570;

Joint Committee on the Draft Bribery Bill (July 2009), Report on the Draft Bribery Bill, HL Paper 115-I / HC 430-1.

See OECD (2006), Phase 2 Report: New Zealand at paras. 156-161.

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

It is arguable that there is extraterritorial jurisdiction to prosecute a non-niVanuatu citizen who is a public official. This is because the definition of a ―public officer‖ includes persons in the official service of the Republic outside its territory.

In lieu of imprisonment, a court may impose a maximum fine of VT100 per day of the prescribed maximum penalty of imprisonment (Penal Code, Section 51).

Public Prosecutor v. Zheng Quan Cai, Supreme Court of Vanuatu, Criminal Case No. 22 of 2002.

In Public Prosecutor v. Zheng Quan Cai, Supreme Court of Vanuatu, Criminal Case No. 22 of 2002, the Court forfeited the bribe after convicting the accused of bribery under the Customs Act, even though that Act does not contain provisions for forfeiture. The jurisdictional basis for ordering forfeiture likely derived from the POCA, although the Court did expressly so indicate.

Public Prosecutor v. John Wai, Supreme Court of Vanuatu, Criminal Case No. 19 of 2001.

ADB/OECD Anti-Corruption Initiative for Asia and the Pacific 506 Criminalisation of Bribery in Asia and the Pacific For instance, see Public Prosecutor v. Zheng Quan Cai, Supreme Court of Vanuatu, Criminal Case No. 22 of 2002.

Extradition Act, c. 287; Mutual Assistance in Criminal Matters Act, c. 285, ss.

1, 18 and 23. An applicable treaty may impose further limits.

According to the Web page ―About Vanuatu‖ on the Web site of the Vanuatu Financial Services Commission (www.vfsc.vu), viewed in February 2009.

ADB/OECD Anti-Corruption Initiative for Asia and the Pacific Vietnam Penal Code 1999 (From WorldLII: www.worldlii.org/vn) Article 279 Receiving bribes

1. Those who abuse their positions and/or power, have accepted or will accept directly or through intermediaries money, property or other material interests in any form valued between five hundred thousand dong and ten million dong, or under five hundred thousand dong but in one of the following circumstances in order to perform or not to perform certain jobs for the benefits or at the request of the bribe offerers, shall be sentenced to between two and seven years of imprisonment.

Article 289 Offering bribes

1. Those who offer a bribe which has a value of between five hundred thousand dong and under ten million dong, or under five hundred thousand dong but cause serious consequences or commit it more than once, shall be sentenced to between one and six years of imprisonment.

INTRODUCTION

Vietnam ratified the UNCAC in August 2009. It has been a member of the APG since 2007. The Vietnamese legal system is based on the civil law and the communist legal system. Its criminal bribery offences have not been externally reviewed.

ELEMENTS OF THE ACTIVE AND PASSIVE DOMESTIC

BRIBERY OFFENCES

Vietnam‘s main bribery offences are found in the Penal Code 1999, though the Anti-Corruption Law 2005 is of limited relevance. Active bribery is covered by Penal Code Article 289, while passive bribery is covered by Penal Code Article 279. The Anti-Corruption Law prohibits officials from committing ―corrupt acts‖, which is defined as, among other things, ―taking bribes‖, ―taking advantage of positions while performing official duties‖ etc. (Articles 3 and 10).

However, the Law specifies administrative but not criminal sanctions for ―corrupt acts‖. The Law also does not define what amounts to ―taking bribes‖. This report

–  –  –

will thus focus on the Penal Code offences, which are more detailed than the corruption offence in the Anti-Corruption Law. Nevertheless, it will touch upon the Law where appropriate.

International standards require active bribery offences to cover giving, offering or promising a bribe. Penal Code 289 only covers offering a bribe.

Whether the offence covers giving and promising a bribe is unclear. Also unclear is whether a bribe that is offered but rejected or not received by a public official is an offence under the Penal Code.

For passive bribery, international standards require coverage of accepting and soliciting a bribe. Penal Code Article 279 only refers to ―have accepted‖ and ―will accept‖ a bribe. Whether the offence covers solicitation is therefore also unclear. However, solicitation is arguably covered since ―asking for bribes‖ is an aggravating factor at sentencing (Article 279(2)(e)).

Effective active and passive bribery offences must also cover bribes that are given, solicited etc. through intermediaries. The Penal Code Article 279 passive bribery offence expressly covers bribes accepted ―directly or through intermediaries‖. On the other hand, the active bribery offence in Article 289 is silent on this issue; the coverage of active bribery through intermediaries is thus unclear.

Bribery offences should also cover bribes that are given to a third party beneficiary, not only an official. The Penal Code active and passive bribery offences are silent on this matter. Their coverage of third party beneficiaries is thus also uncertain.

International standards require active and passive bribery offences to cover a broad range of public officials, namely any person holding a legislative, executive, administrative or judicial office, regardless of seniority and whether appointed or elected, permanent or temporary, paid or unpaid; any person performing a public function, including for a public agency or public enterprise, or provides a public service; and any person defined as a ―public official‖ under domestic law. International standards thus take a broad functional approach.

―Public official‖ is defined through broad, general categories of functions performed by officials.

The Penal Code offences may well meet this standard. The Article 279 passive bribery offence merely covers bribery of ―those who abuse their positions and/or power‖. The provision is not restricted to public officials per se and conceivably includes anyone abusing his/her position or power, whether in the private or public sector. That the offence is under a Chapter of the Penal Code entitled ―Crimes Relating to Position‖ - as opposed to, say, crimes relating ADB/OECD Anti-Corruption Initiative for Asia and the Pacific Vietnam 509 to public officials - reinforces this view. The Article 289 active bribery offence refers only to ―those who offer a bribe‖ without specifying to whom the bribe is offered. If the offence implicitly refers to bribes to those persons who abuse their positions or power in Article 279, then the active bribery offence may also meet international standards.



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