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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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The Anti-Corruption Law has a narrower definition of public officials, however. The Law applies to public servants, certain specified military officials, leading/managerial officials in state enterprises and enterprises whose shares are held by the state, and persons assigned tasks or official duties (Article 1).

The Law therefore does not expressly cover legislators, judges, or persons exercising a public function, including for or a public agency or public enterprise but who are not leading/managerial officials. The Vietnamese authorities point out that the Law on Public Servants considers legislators and judges to be public servants. Nevertheless, in the absence of confirmatory case law, it is not clear that the definition in the Law on Public Servants would necessarily apply to the Anti-Corruption Law.

International standards for the criminalisation of bribery also require broad coverage of acts or omissions in relation to the performance of official duties. This requires coverage of bribery in order that the official (a) performs his/her official duty, (b) breaches his/her official duty, and (c) does not exercise his/her judgment or discretion impartially while making an official decision.

It is not completely clear that the passive bribery offence in the Penal Code meets this standard. Article 279 passive bribery offence covers persons who abuse their positions and/or power. The term ―abuse‖ on its face might not cover an official who accepts a bribe in order to (1) perform his/her duty or (2) influence his/her impartial exercises of discretion.

In addition, bribery offences must also cover any use of the public official‘s position or office, including acts or omissions outside the official‘s scope of competence. For example, a bribery offence should cover a case where an executive of a company gives a bribe to a senior official of a government, in order that this official use his/her office - though acting outside his/her competence - to make another official or private individual award a contract to that company. For the Article 279 passive bribery offence, if the term ―abuse‖ is interpreted sufficiently broadly, then the offence could cover an official who acts outside official competence. On the other hand, the provision also states that the offence only covers bribery in order to induce the official ―to perform or not to perform certain jobs‖. The reference to ―jobs‖ arguably limits the offence to officials who accepts bribes to perform acts or omissions within his/her official competence. The coverage of acts outside official competence is thus not totally clear.

ADB/OECD Anti-Corruption Initiative for Asia and the Pacific 510 Criminalisation of Bribery in Asia and the Pacific The acts of the official that are covered by the active bribery offence is even less clear. The Article 289 offence does not refer to an official at all; it merely states that ―those who offer a bribe‖ commit an offence. It is therefore unclear whether the offence covers officials who act in relation to the performance of official duties as well as beyond official competence. Much may depend on whether the active bribery offence is interpreted to mirror the passive bribery offence, and if so, how broadly the passive offence is interpreted.

International standards require coverage of bribes of both a monetary and non-monetary nature. The Article 279 passive bribery offence speaks of ―money, property or other material interests‖. This definition, particularly the reference to ―material‖ interests, suggests that only tangible bribes are covered.

Intangible bribes such as services would be excluded. That the maximum penalty for bribery is a function of the monetary value of the bribe (see below) reinforces this conclusion. The Article 289 active bribery offence refers to ―bribes‖ with no further elaboration. If this term is interpreted to mirror Article 279, then intangible and non-monetary bribes may also be excluded.

Whether the giving of an advantage amounts to a crime also depends on the value of the advantage. The Penal Code active and passive bribery offences apply to bribes under VND 500 000 (approximately EUR 20 or USD 28) only if the offence causes ―serious consequences‖. The passive bribery offence also applies only if the offender has not been subject to administrative disciplinary measures.

Making small facilitation payments does not necessarily constitute bribery. The Penal Code does not specifically provide a defence of small facilitation payments (e.g. payments to officials to induce them to perform nondiscretionary routine tasks such as issuing licenses or permits). But as noted above, it is not an offence to give a small bribe under VND 500 000 (approximately EUR 20 or USD 28) that does not cause ―serious consequences‖. This exception also allows non-facilitation payments because it allows payments that are made to secure governmental action that is not of a routine nature.

―Effective regret‖ is also a defence. For bribers, the Penal Code Article 289(6) states that ―Persons who are coerced to offer bribes but take initiative in reporting them before being detected may be exempt from penal liability and have part of or the entire property offered as bribes returned.‖ The meaning of ―coerced‖ is not defined; it is unclear whether a mere solicitation would suffice.

For officials, the Anti-Corruption Law states that a person who commits a corrupt act and who reports the crime may be considered for reduced penalties or exemption from liability (Article 4(4)). Neither the Penal Code nor the Anti

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Corruption Law requires a person who effectively regrets to testify against another offender, or to give up any benefits derived from bribery.

There does not appear to be a specific defence of solicitation to domestic bribery (i.e. no active bribery offence takes place if the official requested the bribe).

BRIBERY OF FOREIGN PUBLIC OFFICIALS

Vietnam has not enacted an offence to expressly cover bribery of officials of foreign governments or public international organisations in the conduct of international business. Penal Code Article 279 and possibly also Article 289 refer to bribes to ―persons who abuse their position and/or power‖. On its face, this could encompass a foreign public official. However, international standards require specific legislative language covering bribery of foreign public officials, particularly in the absence of supporting case law.

LIABILITY OF LEGAL PERSONS FOR BRIBERY

Vietnam does not punish legal persons for bribery. The Penal Code does not sanction legal persons for any intentional criminal offence. Nothing in Vietnam‘s constitution prohibits criminal sanctions against legal persons.

JURISDICTION TO PROSECUTE BRIBERY

Vietnam has jurisdiction over bribery committed in its territory. Article 5 of the Penal Code states that ―The Penal Code applies to all acts of criminal offenses committed in the territory of the Socialist Republic of Vietnam.‖ It is not clear whether this provides jurisdiction to prosecute offences that occur partly in Vietnam.

The Penal Code also provides for nationality jurisdiction. Penal Code Article 6 states that ―Vietnamese citizens who commit offenses outside the territory of the Socialist Republic of Vietnam may be examined for penal liability in Vietnam according to this Code.‖ There is no requirement of dual criminality, i.e. the conduct in question need not be an offence in the place where it occurred.

Extraterritorial jurisdiction also applies to stateless persons who permanently reside in Vietnam. Finally, non-Vietnamese nationals can also be prosecuted for extraterritorial offences if so provided in a treaty to which Vietnam is a signatory.

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SANCTIONS FOR BRIBERY

The sanctions for active and domestic bribery in the Penal Code are gradated depending on the presence of certain aggravating factors. The

sanctions for the Article 289 active bribery offence are as follows:

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What amounts to ―serious consequences‖, ―particularly serious consequences‖ or ―treacherous tricks‖ is wholly unclear. The Penal Code does not elaborate on these concepts.

Confiscation under the Penal Code is only available against bribed officials in some cases. Article 279(5) permits confiscation of all or part of a bribed official‘s property. There are no comparable provisions for the active bribery offence. Furthermore, confiscation is only available for ―serious crimes, very serious crimes or particularly serious crimes‖ (Penal Code Article 40). This suggests that confiscation is not available for all passive bribery offences, but only those that are at least ―serious‖.

When available, confiscation may be ordered viz. several categories of property. Penal Code Article 41 allows confiscation of instrumentalities of crime, and ―objects and money acquired through the commission of crime or the trading or exchange of such things‖. APG indicated that it is unclear whether this provision allows confiscation of objects or money not acquired through the commission of crime by the trading or exchange of such things, such as proceeds from an investment. Equally unclear is the confiscation of property that has not been used but is intended to be used for the commission of an offence. The report also expressed doubts over the confiscation of indirect proceeds (i.e. proceeds of proceeds). Article 40 further allows confiscation of an offender‘s property. There are no provisions to impose a fine of equivalent value to the property subject to confiscation if, for example, the bribe or proceeds thereof have disappeared.

The Anti-Corruption Law also speaks of confiscation against officials but does not indicate how this would be accomplished. The law merely states that corruption-related property must be recovered and confiscated, and that persons who commit corrupt acts must pay compensation. As well, the Law only applies to corrupt officials and therefore does not provide a basis for confiscation of the proceeds of bribery against a briber.

ADB/OECD Anti-Corruption Initiative for Asia and the Pacific 514 Criminalisation of Bribery in Asia and the Pacific The inability to order confiscation against a briber is made worse because a briber may recover the bribe. If a bribe-giver reports the crime before the authorities detect it, the bribe paid must be confiscated from the official and returned to the briber (Anti-Corruption Law Article 70). A briber who bribes to obtain a contract and who reports the matter quickly may be in a ―win-win‖ situation, as he/she may recover the bribe and also retain the contract.

Some additional administrative sanctions are available. Section 279 provides that an official convicted of passive bribery is ―banned from holding certain posts for one to five years‖. There is no explanation of what qualifies as ―certain posts‖. Under the Anti-Corruption Law Article 69, officials (including legislative officials) convicted of committing ―corrupt acts‖ are dismissed.

Neither the Penal Code nor the Anti-Corruption Law provides for debarment from seeking government procurement contracts.

TOOLS FOR INVESTIGATING BRIBERY

The Criminal Procedure Code 2003 (CPC) contains some investigative tools for bribery investigators. The Code provides for summons of witnesses to provide statements (Article 133). A warrant may be issued to search premises and seize instruments of crime, property acquired from crime, and other objects and documents related to the case (Articles 140-143). Investigators, prosecutors and courts may request agencies, organisations and individuals to supply documents and objects (Article 65). However, there are no specific procedures to order banks and financial institutions to produce documents and information, including those covered by bank secrecy. There are also no provisions dealing specifically with tax information covered by secrecy rules.

CPC Article 146 provides for freezing and restraint of property. Restraint is only available against a person charged with offenses; it does not appear to be available early in an investigation before a charge has been filed. Restraint is also only available against property that is likely to be confiscated, or if an accused may be fined or ordered to pay compensation. Restrained property is assigned to ―their owners or their relatives for preservation‖. Failure to discharge this responsibility, e.g. by consuming or destroying the restrained property, is an offence. The authorities are therefore not responsible for managing restrained property. Whether and how these provisions apply to bank and financial accounts is uncertain.

The recent APG noted additional provisions for freezing accounts.

Decree No. 64/2001/ND-CP on Payment Activities, Article 9 provides for the blocking of accounts upon the decision or request of a competent person.

Decree 74/2005 on Anti-Money Laundering, Article 11 also allows the freezing

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of an account and the suspension of transactions, though the decree has only been applied to credit institutions in practice. APG thus questioned the Decree‘s effectiveness and enforceability.

The CPC does not provide for special investigative techniques. Article 144 allows the seizure of mail and other postal items at post offices. Beyond this measure, there are no provisions for wiretapping, listening and bugging devices, secret surveillance, video recording, email interception, undercover police operations (e.g. ―sting‖ operations), or controlled deliveries. Nevertheless, the Vietnamese authorities have apparently conducted undercover operations and controlled delivery in serious cases. These operations were authorised by the Criminal Procedure Code, according to the Vietnamese authorities.

Extradition is available in bribery cases under the Criminal Procedure Code (CPC) and the Law on Mutual Legal Assistance (LMLA), which entered into force on 1 July 2008. Under the CPC Article 343, Vietnam may seek extradition for all criminal offences, including from bribery, but only from countries with which it has extradition treaty relations.. Dual criminality is required for extradition under both statutes. The LMLA further requires the conduct underlying a request to be punishable in Vietnam by imprisonment of at least one year, life imprisonment or death.

The Criminal Procedure Code and LMLA also allow Vietnam to seek mutual legal assistance (MLA) in bribery cases. Assistance may be sought under a treaty or without a treaty on the basis of reciprocity (CPC Article 340 and LMLA Article 4). There does not appear to be a dual criminality requirement for seeking MLA. The CPC does not describe the types of assistance that Vietnam may seek or provide.

Apart from the provisions on the effective regret defence described above, there are no provisions dealing with offenders who co-operate with the authorities in the investigation or prosecution of other offenders. There are also no provisions on plea bargaining.

ENFORCEMENT OF BRIBERY OFFENCES

The Supreme People‘s Procuracy has conduct of corruption-related prosecutions (Anti-Corruption Law Article 79). The Vietnamese authorities did not provide enforcement statistics for bribery offences, but a 2009 APG report

provided the following data:

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Citing Global Integrity, the APG noted that Vietnam received a ―very weak score‖ in its anti-corruption enforcement.‖

RECOMMENDATIONS FOR A WAY FORWARD

Elements of the Active and Passive Domestic Bribery Offences Vietnam‘s active and passive domestic bribery offences meet some requirements found in international standards. Vietnam could strengthen these

offences by addressing the following issues:

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

Liability of Legal Persons for Bribery Establishing criminal liability against legal persons for bribery in order to bring Vietnam in line with international standards.

Jurisdiction for Prosecuting Bribery In addition to territorial jurisdiction, Vietnam 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, Vietnam could address the jurisdiction to prosecute bribery offences that take place partly in Vietnam.

Sanctions for Bribery To ensure a regime of sanctions that is effective, proportionate and

dissuasive, Vietnam could consider addressing:

Clarification of ―serious consequences‖, ―particularly serious (a) consequences‖ or ―treacherous tricks‖;

(b) Confiscation against bribers and bribed officials of the direct and indirect proceeds of bribery, and the availability of fines of equivalent value to the property subject to confiscation if, for example, the bribe or proceeds thereof have disappeared;

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Enforcement of Bribery Offences To properly measure the effectiveness of its criminalisation of bribery, Vietnam should maintain statistics on investigations, prosecutions, convictions, and sanctions for active and passive domestic bribery.

RELEVANT LAWS AND DOCUMENTATION

Laws of Vietnam: WorldLII - www.worldlii.org/vn Anti-Corruption Law 2005: www.shtp.hochiminhcity.gov.vn/webshtp/ news/content.aspx?cat_id=610&news_id=805 APG (2009), Evaluation Report: Vietnam: www.apgml.org

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NOTES See: UNCAC Article 2(a); OECD Convention Article 1; Inter-American Convention Against Corruption Article 1; and, African Union Convention on Preventing and Combating Corruption Article 1.

See OECD Convention, Commentary 19.

See below for what amounts to ―serious consequences‖.

―Offences‖ in this context presumably means offences under the Penal Code of Vietnam.

It is unclear whether ―a person who has committed the offence more than once‖ refers to someone who has a prior conviction for bribery, or someone who has committed (but not yet convicted for) multiple acts of bribery.

It is unclear whether ―a person who has committed the offence more than once‖ refers to someone who has a prior conviction for bribery, or someone who has committed (but has not yet been convicted for) multiple acts of bribery.

Penal Code Section 8 defines the punishment for ―serious crimes‖, ―very serious crimes‖ and ―particularly serious crimes‖. But these terms are also undefined, and hence the provision is of limited assistance to interpreting the sanctions for bribery. Moreover, the application of Section 8 to the bribery offences is questionable, since the punishment prescribed therein does not correspond to those for the bribery offences. Section 8 may therefore not be intended to refer to the bribery offences.

Asia-Pacific Group on Money Laundering (2009), Mutual Evaluation Report:

Vietnam, paras. 208-214.

Asia-Pacific Group on Money Laundering (2009), Mutual Evaluation Report:

Vietnam, paras. 215-227.

Asia-Pacific Group on Money Laundering (2009), Mutual Evaluation Report:

Vietnam, para. 331.

Unfortunately, a full English translation of the law, including the provisions on seeking extradition and MLA, was not available.

Additional conditions in applicable treaties and foreign legislation may apply.

Asia-Pacific Group on Money Laundering (2009), Mutual Evaluation Report:

Vietnam, paras. 840, 873 and 880. Paragraphs 842-867 and 873-888 of the Report discuss in detail the provisions of the Law concerning Vietnam‘s provision – but not seeking – of extradition and MLA.

Asia-Pacific Group on Money Laundering (2009), Mutual Evaluation Report:

Vietnam, para. 105.

Asia-Pacific Group on Money Laundering (2009), Mutual Evaluation Report:

Vietnam, para. 104.

ADB/OECD Anti-Corruption Initiative for Asia and the Pacific BLURB Criminalisation of Bribery in Asia and the Pacific Criminalisation is a key component of all international anti-corruption instruments. Pillar 2 of the Initiative's Action Plan commits countries that have endorsed the Plan to ensure ―the existence of legislation with dissuasive sanctions which effectively and actively combat the offence of bribery of public officials‖. The UN Convention against Corruption (UNCAC) and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions require states parties to enact specific criminal offences on bribery.

However, international experience shows that criminalisation can be a challenging task, as seen with many countries that have implemented the OECD Convention. These lessons learned by OECD countries can help the Initiative's members avoid pitfalls on the road to UNCAC implementation. With this in mind, the Initiative decided to conduct a thematic review on the criminalisation of bribery offences under the UNCAC. Drawing on the experience of the OECD Anti-Bribery Convention's monitoring mechanism, the review will focus on each member's implementation of Articles 15, 16 and 26 of UNCAC (domestic and foreign bribery by natural and legal persons). The review will also seek to identify trends and challenges that cut across the Asia-Pacific region.

The Asian Development Bank (ADB)/Organisation for Economic Co-operation and Development (OECD) Anti-Corruption Initiative for Asia and the Pacific supports its 28 member countries and jurisdictions in their efforts to establish sustainable safeguards against corruption as set out in the Anti-Corruption Action Plan for Asia and the Pacific.

For more information, please visit www.oecd.org/corruption/asiapacific

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