Anti-corruption legal and institutional frameworks

in Bulgaria, Moldova, Romania, Russia and Ukraine

Francesco Checchi, UNDP BRC Krpacovo, 21-22 April 2008 Prosecutors' Workshop

International legal instruments and monitoring mechanisms

    UN Convention Against Corruption (ratified by Bulgaria, Moldova, Romania, Russia, Ukraine) CoE Criminal Law Against Corruption: ratified by all except Ukraine CoE Civil Law Against Corruption: ratified by all except Russia OECD Conv. Against Bribery of Public Foreign Officials (only Bulgaria)  GRECO (Group of states Against Corruption)  OECD Istanbul Action Plan (Ukraine - Moldova) Krpacovo, 21-22 April 2008 Prosecutors' Workshop

Anti-Corruption Legal Framework

The UN Convention Against Corruption

- Substantive criminal law requirements -

Mandatory offences

(Minimum standards)        Bribery (active – passive) of national public officials (Art.15) Active Bribery of foreign public officials & officials of public int’l organizations (16) Embezzlement, misappropriation or other diversion of property by public officials (17) Money laundering (23) Obstruction of justice (25) Liability of legal persons (26) Participation, Attempt (27) Krpacovo, 21-22 April 2008 Prosecutors' Workshop

UNCAC

- Substantive criminal law requirements

Non mandatory offences

       Passive Bribery of foreign public officials & officials of public int’l organizations (16) Trading in influence (18) Abuse of functions (19) Illicit enrichment (20) Private Sector bribery (21) Private sector embezzlement (22) Concealment (24) Krpacovo, 21-22 April 2008 Prosecutors' Workshop

UNCAC

- Necessary measures and procedures for effective law enforcement against corruption

Law enforcement

                Knowledge, intent, purposes (28) (inferred from factual circumstances) Statute of limitations (29) (longer) Prosecution, adjudication, sanctions (30) (immunity –jurisdictional privileges) (discretionary legal powers – presence of the defendant – removal of public official… Freezing, seizure, confiscation (31) Protection of witnesses, experts, victims (32) Protection of Reporting persons (33) Consequences (34) Compensation (35) (for those who have suffered damage) Specialized authorities (36) (Body or bodies or person) Cooperation with law enforcement officials (37) Cooperation between national authorities (38) Coop. between national authorities and private sector (39) Bank secrecy (40) Criminal record (41) Jurisdiction (42) Implementation of convention (65) Krpacovo, 21-22 April 2008 Prosecutors' Workshop

Criminalization of corruption. Bulgaria

Criminal code: Section IV. Bribery

Shall be punished:  An official who accepts a present or any other property benefit whatsoever, which is not due, in order to perform or not an act on business or because he has he has or has not performed such an activity (Compare to Art 15 UNCAC)   Shall be punished: […] Who gives a present or any other property benefit whatsoever to an official (also foreign official) in order to fulfill or not an activity related to his office, or because he has fulfilled or not such activity, shall be punished by imprisonment of up to six years. (Compare to Art 15 UNCAC) Krpacovo, 21-22 April 2008 Prosecutors' Workshop

Bulgaria , Criminal code

     Who promises or proposes a bribe … An official who requests or agrees to receive a bribe … The punishments […] shall also be imposed on an expert, appointed by a court, establishment, enterprise or organisation,… Who mediates the giving or receiving of a bribe… Who intentionally creates circumstances or conditions in order to provoke offering, giving or receiving of a bribe    Not punished shall be those who has given a bribe: a) if he has been blackmailed by the official or by the expert to do that or b) if he has informed the authorities voluntarily.

Krpacovo, 21-22 April 2008 Prosecutors' Workshop

Moldova, criminal code

 Various corrupted practices are addressed by the criminal code. Punishments particularly heavy.   Issue of corruption is addressed through several articles: Article 324. Passive Corruption […] also for the purpose to obtain distinctions, functions, opened markets or other favorable decision by an authority 

Article 325. Active corruption

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Article 256. Receiving of illicit remuneration from citizens for the performance of works related to providing services to people

Receiving by an worker of an enterprise, institution or organization who is not an official person, by extortion, of an illicit payment from a citizen for the performance of works, for providing services in the area of trade, public nutrition, social services, public utility, medical services, transportation or other public services, included in the range of official duties of the worker in question Krpacovo, 21-22 April 2008 Prosecutors' Workshop

Moldova, criminal code

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Article 326. Trading of influence

Receiving or extorting money, securities, other goods or advantages with a real estate character, accepting services or promises for goods and advantages, personally or through intermediary for him or for other person, committed with intention by a person who have the influence or who support to have such an influence on a public servant, for the purpose of making the public servant to carry out or to fail to carry out actions regarding his professional duties, not taking into consideration if these actions were committed or not…  

Article 327. The abuse of power or of an official position

The deliberate use by an official of his official position contrary to the requirements of duty, committed for a personal or other low-down interest, resulting in substantial harm to the public interests …..

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Article 329. Professional Negligence

The failure of an official to perform his duties or inadequate performance of his duties as a result of negligent or not conscientious attitude towards the duties in question, if resulted in damages on a large scale either to the state or public interests or to the rights or interests of the citizens, which are protected by law….

Krpacovo, 21-22 April 2008 Prosecutors' Workshop

Moldova, criminal code

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Article 330. Receiving of illicit reward by a civil servant

(1) Receiving of an illegitimate reward from citizens for performing any actions or providing services, which are in the limits of his duties, by a servant of the public authorities, other institutions, enterprises and state organizations, who is not an official…..  The action of taking and giving a bribe are identified as criminal offences in the Chapter XVI (crimes against services interest of the commercial, public and non governmental organization) – not against individuals.  

Article 243. Money laundering

(1) Performing legal operations with money or other goods, knowingly obtained illegally shall be punished by a fine […]or by jail sentence of up to 5 years… (ref. art. 23 UNCAC) Krpacovo, 21-22 April 2008 Prosecutors' Workshop

Romania, criminal code

 Art. 254 Criminalization of corruption: bribe taking…. is punished by 3-12 years imprisonment and interdiction of certain rights.

 Art 255. bribe giving:… the briber is not punished if he informs the authorities of his deed before the investigation authority is announced of the crime.

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Art. 215 Embezzlement

Appropriation, use or traffic, by a functionary, in his own interest or in another person’s interest, of money, values or other goods that he/she administrates or manages, shall be punished with imprisonment between 1 year and 15 years. (art 15 UNCAC mandatory) Krpacovo, 21-22 April 2008 Prosecutors' Workshop

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Romania, Law 78 of May 8th, 2000 on preventing, discovering and sanctioning of corruption acts

Offences assimilated to corruption offences

the establishing, deliberately, of a diminished value, compared to the real market value, of the goods belonging to the economic agents in which the state or an authority of the local public administration is a shareholder, committed during the privatization activity, the enforcement of a judicial decision or the judiciary reorganization or liquidation of an economic agent or with the occasion of a commercial transaction, or ( diminished value) establishing… of a of the goods belonging to public authorities or public institutions, committed during a procedure of selling these goods, or during the enforcement of a judicial decision, committed by the persons holding such attributions as management, administration, enforcement of judicial decisions or judiciary reorganization or liquidation of an economic agent;  the granting of subsidies by infringing the law provisions, the non-following up, according to the law provisions, of the destinations given to the subsidies;  the use of the subsidies for other purposes than those for which they had been granted, as well as the use of the credits that were warranted with public funds or that should be reimbursed out of public funds.

Krpacovo, 21-22 April 2008 Prosecutors' Workshop

Russia, Criminal code

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Article 290. Bribe-taking

[…] up to five years, with deprivation to hold specified offices or to engage in specified activities for a term of up to three years.

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Article 291. Bribe-giving

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Article 285. Abuse of Official Powers

Use by an official of his powers, contrary to the interests of the civil service, if this deed has been committed out of mercenary or any other personal interests and has involved a substantial violation of the rights and lawful interests of individuals or organizations, or the legally-protected interests of the society or the State, shall be punishable by a fine in the amount up to 80 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period up to six months, or by disqualification to hold specified offices or to engage in specified activities for a term of up to five years, or by arrest for a term of four to six months, or by deprivation of liberty for a term of up to four years.

Krpacovo, 21-22 April 2008 Prosecutors' Workshop

Russia, Criminal code

The Laundering of Monetary Funds or Other Property Acquired by a Person as a result of an Offence Committed by Him

 Making large-scale financial transactions and other deals in monetary funds or other property acquired by a person as a result of his having committed an offence or using these monetary funds or other property for the pursuance of business or other economic activity ?? See art 19 UNCAC Krpacovo, 21-22 April 2008 Prosecutors' Workshop

Ukraine, Criminal code

  A369 giving a Bribe Art 368 taking a bribe  

A365 Excess of authority or official powers

"Excess of authority or official powers, i.e., the deliberate commission of acts, by an official, which obviously exceed the rights and powers vested in him/her, where it caused any substantial damage to the legally protected rights and interests of individual citizens, or state and public interests, or interests of legal entities, œ shall be punished […] Krpacovo, 21-22 April 2008 Prosecutors' Workshop

Ukraine, Criminal code

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Abuse of authority or office (Article 364)

"Abuse of authority or office, i.e. a deliberate use of authority or official position contrary to the official interests by an official for mercenary motives or other personal benefit or benefit of any third parties, where it caused any substantial damage to legally protected rights, freedoms and interests of individual citizens, or state and public interests, or interests of legal entities…..  

A 370 provocation of a bribe

Provocation of a bribe, i.e. an intentional creation, by an official, of circumstances and conditions that cause the giving or taking of a bribe, for the purposes of uncovering those who gave or took the bribe, shall be punished with the restriction of freedom for a term up to five years or with the imprisonment for a term of two to five years. The same act committed by a law enforcement official, shall be punished with the imprisonment for a period of three to seven years Krpacovo, 21-22 April 2008 Prosecutors' Workshop

Some observations

 Corruption is generally criminalized when it involves public sector officials. The Criminal Codes establishes the offences of both active and passive bribery, abuse of authority is also punished but specific offences such as embezzlement and trading of influence often are not criminalized. Other issue to be addressed is the liability of legal persons.  Some shortages are present for the implementation of the manadatory requirements of the UNCAC. A lot of work still needs to be done for the implementation of the non mandatory offences.  Criminalization of corruption is present in the criminal codes in very different ways. Punishments for corruption are also very different. The criminalization of the types of corruption and the introduction of the possibility to punish all the actors involved requires more detailed descriptions.  In some criminal system the same crime is addressed through several articles and according to different prospectives but this doesn’t mean that all the elements of the corruption crime have been taken into consideration. Krpacovo, 21-22 April 2008 Prosecutors' Workshop

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Anti-corruption specialized law enforcement agencies

The international standards set by the 1999 Council of Europe’s Criminal Law Convention and the 2003 United Nations Convention against Corruption require from all countries to ensure the existence of a body or bodies that, on one hand, establish and disseminate effective practices aimed at preventing corruption and, on the other hand, combat corruption through law enforcement.  In addition, Council of Europe and the United Nations conventions require measures to ensure that anti-corruption bodies carry out their functions effectively, benefit from the necessary independence, adequate training and resources.

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Bulgaria: no specialized body, National Service on Combating

Organized Crime play the most central role in the fight against corruption.

Russia: no specialized body Ukraine: no specialized body Krpacovo, 21-22 April 2008 Prosecutors' Workshop

Anti-corruption specialized law enforcement agencies

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Moldova: Center for Combating Economic Crimes and

Corruption (CCECC), is a specialized institution aimed at combating economic crimes and corruption. CCECC has a complex system of detecting these crimes including gathering and elaboration of operative information, carrying out inspections, initiation of criminal cases etc.     The Centre was created by merging of following units: Department of Financial-Economic Police, Anti-corruption Department of the Ministry of Interior, Financial Guard and the Department of Financial Control and Inspection of the Ministry of Finance.

 Purpose: optimizing the structure of public administration, diminishing the number of involved departments and controlling bodies. The CCECC assumed the function of prevention and combating corruption and economic crime, thus decreasing previously over-inflated amount of checks and control for economic agents.

Krpacovo, 21-22 April 2008 Prosecutors' Workshop

Moldova: Center for Combating Economic Crimes and Corruption (CCECC)

 Tasks:    Prevention, detection, investigation and sanctioning of financial economic and tax crimes; Actions against corruption and nepotism; Actions against money laundry and legalizing of material assets acquired illegally.

Krpacovo, 21-22 April 2008 Prosecutors' Workshop

Anti-corruption specialized law enforcement agencies

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Romania: National Anti-corruption directorate (NAD)

 The NAD is a structure with legal personality, within the framework of the Prosecutor’s Office attached to the High Court of Cassation and Justice (GPO).

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Independence: The NAD is independent in its relationship

with the courts of justice and the prosecutor’s offices attached to these, as well as in its relationship with the other public authorities.

Krpacovo, 21-22 April 2008 Prosecutors' Workshop

National Anti-corruption directorate

(

NAD)

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The attributions: carrying out criminal investigations according to

the Criminal Procedural Code and relative legislation  (The offences provided in the Law no.78/2000 for preventing, discovering and sanctioning corruption deeds, fall under the competence of the NAD, when  (a) offences caused a material damage greater than the equivalent to 200, 000 EUROS, or a particularly serious perturbation was brought to the activity of a public authority, public institution or any other legal person….

 b) these offences are committed by deputies, senators, Government’s members, state secretaries, the counselors of the ministers…etc Krpacovo, 21-22 April 2008 Prosecutors' Workshop

NAD

  Procedural provision: The services and structures specialized in collecting and processing information shall have the obligation to immediately put at the disposal of the National Anticorruption Directorate the data and information they hold in connection with the commission of corruption offences.

The National Anticorruption Directorate is authorized to have and to use adequate means to obtain, verify, process and store the information regarding the corruption offences …       Investigative means: the following measures can be disposed, in order to collect evidence and to identify the perpetrator: a) the surveillance of the bank accounts and the accounts assimilated to these; b) the surveillance or interception of the communications; c) the access to the IT systems.

….for a duration of maximum 30 days. The banking secret and the professional one, except for the lawyer’s professional secret, shall not be opposable for the prosecutors Krpacovo, 21-22 April 2008 Prosecutors' Workshop

NAD

 Funding: Financing the current and capital expenses of the National Anticorruption Directorate is ensured from the state budget.

 Staff: is formed of prosecutors, judicial police officers and agents, experts in the economic, financial, banking, customs, IT field and also in other fields, special auxiliary personnel, as well as economic and administrative personnel… Judicial police officers work within NAD with the purpose of carrying out with celerity the activities of discovering and investigating the corruption offences. Experts of high qualification in the economic, financial, banking, customs, IT fields, as well as in other fields, are appointed within the framework of the NAD  International Cooperation: With a view to a mutual consultation regarding the offences under the competence of the National Anticorruption Directorate and to a data and information exchange regarding the investigation and prosecution of such offences, a liaison office with similar institutions from other states is set up.

Krpacovo, 21-22 April 2008 Prosecutors' Workshop