«The CleanGovBiz Initiative supports governments, business and civil society in their efforts to build integrity and fight corruption. The initiative ...»
5.3 Do the competent authorities have tools (e.g. data such as the number of reports, investigations, prosecutions and convictions relating to bribery, the sanctions imposed, and how a crime was detected) to evaluate the impact of the anti-bribery policy and ensure coherence across policy areas?
The principles of discretionary and mandatory prosecution In many Parties to the OECD Anti-Bribery Convention criminal procedure is based on the obligation to prosecute. Yet, other Parties to the Convention apply the principle of discretionary prosecution. Under this principle, the prosecuting authorities decide whether to bring a prosecution or discontinue proceedings.
The absence of a direct victim, the lack of serious and consistent evidence, the insignificance of the harm done, but also other discretionary considerations external to the case itself such as the protection of “public interest” may all lie behind a decision not to prosecute a case. In contrast, the principle of mandatory prosecution is that all offences that come to the attention of the prosecuting authorities should be systematically prosecuted and punished. In light of the fact that in some systems prosecution is not simply a judicial but also an executive branch function, the powerful role of the prosecuting authorities of countries that conduct discretionary prosecution may render them vulnerable to undue influence, which can determine the direction, pace and outcome of a case of bribery of public officials. For this reason, the OECD Working Group on Bribery has recommended, on several occasions, that countries which apply the principle of discretionary prosecution and where prosecution is also an executive branch function establish measures to safeguard the prosecuting authorities’ independence.
Specific law enforcement bodies or units for domestic and foreign bribery in OECD countries To improve law enforcement effectiveness, some OECD countries (e.g. Greece, Hungary, Mexico, the Slovak Republic and Sweden) have assigned competence over domestic and foreign bribery to a specific law enforcement body. In Belgium, the Central Office for Corruption Repression (OCRC) has special police structures at the federal and local levels to deal with foreign bribery and other forms of corruption, although the OCRC does not have exclusive competence in such cases. Other countries, have established specialised units within their law enforcement of justice: in the United States, all the three government agencies that are primarily responsible for enforcement actions against foreign bribery (the Department Of Justice [DOJ], the Securities and Exchange Commission [SEC] and the Federal Bureau of Investigation [FBI]) have specialised units dealing exclusively with transnational bribery matters. In its Phase 3 evaluation of the United States, the Working Group noted that the creation of dedicated foreign bribery units in the DOJ, SEC and FBI allows economies of scale, concentrates expertise and helps guard against inconsistencies in approach.
6. Statutes of limitations: Do investigators and prosecutors have a reasonable amount of time to follow a bribery case?
Aside from the central role of the competent authorities who oversee the investigation and prosecution of the offence – and as such can determine the direction, pace and outcome of a case of bribery of public officials, the statutes of limitation as they apply to the offence may further improve or impede the effectiveness of prosecution. Secret commissions, the use of false invoices, multiple intermediaries, and so on, may make it very difficult to unmask this type of carefully concealed crime. Cases, especially those involving foreign public officials, are often complex and require the gathering of voluminous evidence and complicated accounting and financial analysis—sometimes across multiple jurisdictions. For all these reasons, it is essential that the limitation period is sufficiently long for the investigation and prosecution of these offences.
6.1 In your legal system is the statute of limitations applicable to the offence of bribery of a foreign public official?
6.2. Can the limitation period be interrupted or suspended? If yes, under what circumstances?
Statute of limitations for foreign bribery offences in Anti-Bribery Convention countries Among Anti-Bribery Convention countries which specifically set out a limitation period, the statute of limitations for the foreign bribery offence ranges from 3 to 15 years. It is in Switzerland that the limitations period for the bribery of foreign public officials is 15 years. The OECD Working Group on Bribery has recognised that such long time limits take better account of the complexity of corruption cases. Some OECD countries, like Canada and the United Kingdom, do not even provide a statute of limitations for the offence of bribing a foreign public official.
This situation allows these Parties to the OECD Anti-Bribery Convention ample time for the investigation and prosecution of complex cases requiring, for instance, mutual legal assistance from other Parties.
7. Investigative techniques: Do law enforcement authorities have access to the tools they need to effectively investigate the often complex cases of bribery of foreign and domestic public officials?
Bribery of public officials, domestic and foreign, can be very difficult to investigate. This is because bribery is often the result of consensual acts between the parties involved – the briber and the public official – and is hence secretive by nature. Bribery is also increasingly committed through sophisticated financial schemes, involving multiple business organisations, including shadow companies and financial centres that are difficult to penetrate. For all these reasons, international instruments require law enforcement officials to have special investigative techniques. Banks should also not be allowed to invoke bank secrecy laws against law enforcement efforts.
7.1 Are the following special investigative techniques available for bribery offences: undercover operations, electronic surveillance (e.g.
interception of communications, listening devices, etc.), use of informants, use of forensic accounting and information technology?
7.2 Are financial institutions allowed to invoke bank secrecy to frustrate the investigative efforts of law enforcement?
7.3 Are tax authorities allowed to claim secrecy obligations to frustrate law enforcement?
Investigative tools available to law enforcement agencies In Switzerland, prosecutors have considerable means of investigation. The aims are to obtain testimony through questioning, the hearing and confrontation of witnesses and the use of experts to make findings of fact and to carry out technical examinations; to find and preserve material evidence by using measures such as searches, the lifting of banking secrecy and seizures, including the freezing of bank accounts; and measures to ensure the presence of the accused or any person liable to provide information (custody, release on bail, court supervision, etc.). In addition to these classic methods, investigators and magistrates dealing with bribery cases may use more sophisticated techniques to gather material evidence. These include the interception of telephone calls and internet communications, and the possibility to use undercover investigations.
The United States has used sting operations to uncover foreign bribery cases. A sting operation is a deceptive operation designed to catch a person committing a crime.
In Malaysia, law enforcement agencies have at their disposal special investigative techniques such as technical devices like telephone and internet interception, search and seizure, and – subject to a court ruling- access to bank records, to gather evidence of bribery offences.
8. International co-operation: Does effective international co-operation support the investigation and prosecution of bribery cases – especially cases of transnational bribery?
International co-operation plays a vital role in securing evidence of the offence of active bribery of public officials. In particular, cross-border co-operation related to extradition and mutual legal assistance (MLA), or sharing of information, can be crucial to effectively investigating and prosecuting the crime of bribery. A comprehensive legal framework with clear provisions, soft conditions for the provision of assistance, and not overly complex procedures is crucial to the success of requests for international legal assistance and the collection of evidence abroad. Informal contacts may also help in overcoming the difficulties that formal procedures entail.
8.1 Has your country concluded bilateral or multilateral agreements or arrangements to facilitate MLA and extradition? In the absence of treaty, does your legislation require an undertaking of reciprocity on the part of the requesting country? Are there established procedures for dealing with MLA and extradition requests?
8.2 Does your country’s legislation or Constitution prohibit the extradition of your nationals? If yes, does your legislation provide for jurisdiction to prosecute your nationals for an offence committed within the jurisdiction of the requesting country?
8.3 Is MLA in your country subject to the principle of dual criminality, i.e.
does your country extradite fugitives or provide assistance in relation to bribery acts committed outside its territory only on the condition that those acts are criminalised by the legislation of the requesting country?
(This requirement can be an obstacle for international co-operation, particularly in cases involving foreign bribery offences that do not exist in some countries.)
8.4. Can your authorities decline to render MLA for corruption-related offences on the ground of bank secrecy?
8.5 Does your country have a designated central authority responsible for the receipt, processing or execution of MLA/extradition requests? Can requests be sent directly to/from the central authority to/from a foreign country, or must the diplomatic channel be used?
Provisions for mutual legal assistance in France, the UK and the US Many Parties to the OECD Anti-Bribery Convention have made legislative and institutional efforts to guarantee prompt international co-operation. For instance, France no longer requires that investigating magistrates have to transmit their applications for MLA via the public prosecutor - the procureur général - of the appeal court whose jurisdiction they come under. Moreover, the enforcing documents no longer need to pass by the procureur général.
In the United Kingdom, the Crime International Co-operation Act 2003 provides for increased direct transmission of requests and return of evidence. An important modification brought by the law is the establishment of certain agencies to receive requests pertaining to their activity. The Extradition Act 2003 has introduced new rules that streamline extradition procedures.
In the United States, a number of bilateral treaties (over 80 on mutual legal assistance in criminal matters [MLATs] and over 130 on extradition) are available for seeking or providing international co-operation. In addition, as a party to the UNCAC and the OECD Anti-Bribery Convention, the United States use these multilateral conventions to seek co-operation. Assistance can also be provided or sought through informal channels, such as direct communication between law enforcement and/or prosecutors in other countries.
Further Resources Relevant standards The criminalisation of bribery and the enforcement of anti-bribery laws figure prominently in all legally-binding international anti-corruption instruments, namely the OECD Anti-Bribery Convention, the UN Convention against Corruption, the African Union Convention on Preventing and Combating Corruption, the Council of Europe Criminal Law Convention on Corruption, the EU Convention on the fight against corruption involving officials of the European Communities or officials of the EU Member States, the Inter-American Convention against Corruption, and the UN Convention against Transnational Organized Crime.