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Stepping up prosecution of transnational bribery

The OECD Antibribery Convention requires parties to make promising, offering, or giving a bribe to an official of another government a crime. Although 38 countries have ratified the convention, Transparency International reports that as of the end of 2009 only seven are actively enforcing this provision. Another nine are making some effort to enforce it and have taken few if any steps to enforce the convention.

When it comes to the prosecution of officials who accepted bribes from transnational companies, there has been even less activity.  In the last 30 years, only three countries have prosecuted more than five officials for accepting a bribe.  Another ten have prosecuted three to five individuals; 22 countries have prosecuted either one or two officials.  What is behind the lack of prosecutions?  Lack of good cases?  Absence of technical skills?  Political obstacles?


 

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Submitted by Michael Volkov on
I am one of the facilitators for this issue. I am a former federal prosecutor (17 years) and now in private practice handling FCPA and anti-corruption cases. I thought it would be helpful to outline some initial issues and questions. General Observations The signatories to the antibribery OECD convention account for nearly three-quarters of all the world's exports. Design and implementation of anti-bribery laws and enforcement programs by the signatories alone would have a dramatic impact on global anti-corruption efforts. The United States accounts for a large percentage of foreign bribery prosecutions but accounts for only 10 to 15 percent of global trade. The United Kingdom's Anti-Bribery Act is a welcome development but more countries need to do increase their efforts. The reasons for energetic and uniform enforcement of foreign anti-bribery laws in the developed world are vey compelling. The link between bribery, and corruption distorts markets, breeds citizen apathy; damages government legitimacy; undermines the integrity of the private sector; and efforts to reduce poverty. More broadly, corruption perpetuates failed and failing states, increases the risk of terrorism, narcotics activity, money laundering, human trafficking, and other types of global crime. The United States government needs to increase multilateral and bilateral actions to put pressure on OECD member states to live up to their enforcement obligations under the convention. American businesses need to support these efforts. Specific Concerns There is no question that detecting, investigating and prosecuting corruption is very difficult. Bribery and corruption are indeed often characterised by a high degree of sophistication which make detection and prosecution difficult. Some of the possible difficulties in ijmplemnting serious anti-corruption programs may include: a. Legislative shortcomings in criminal laws which may not cover money laundering and accounting fraud as important tools b. Insufficient independence of the law enforcement agencies or unclear lines of co-operation and co-ordination between different law enforcement agencies involved or between prosecution and police services. c. Lack of reliable source information because of a low reporting rate of tips and other verifiable information. d. Difficulties or lack of established relationships with foreign enforcement agencies relating to international bribery. e. Lack of resources and expertise of law enforcement agencies for dealing with complex crimes such as corruption, as well as shortages in technical equipment such as computers, telephone line and call information. Beyond, training in specific relevant matters – forensic accounting, public funds, insider trading to name only a few areas of specialised expertise – may not be provided to those assigned to detecting, investigating and prosecuting corruption crimes.

The ICHA initiative is very timely. While the OECD Antibribery Convention lays a good foundation for such a fight, I am afraid to say that most countries in the South are paying just leap service to the fight. The ratification of UNCAC, the OECD and other regional instruments and initiatives in themselves will not lead to a good fight on corruption. In the South where corruption is institutionalized, politicians ratify conventions, establish commissions and start anticorruption strategies without any political will to fight corruption. In most of these countries, corruption is not yet perveived as a problem. Rather, it is an opportunity, both in the private and public sectors. Hence, to tackle bribery, the world's clean countries should help countries of the South to invest in strong and democratic institutions;investing in the civil society in this respect can be very instrumental. The real foundation for a veritable fight against corruption is building democratic institutions and culture.

One aspect which is often overlooked is the (availability and or) the willingness of foreign material witness to respond to a summons to testify at trial. We need to realise that when investigating foreign public officials, very often a material witness to the the case resides in the country where the suspect also reside and despite much efforts to secure evidence during investigation, be it through art 46 of UNCAC for instance or through mutual legal assistance legislations, the trial remains unsuccessful if the said witness does not volunteer to attend trial more specifically in jurisdictions where witnesses evidence can only be admitted if given viva voce at the proceedings.

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