Presentation on theme: "28 February 2013 Erjon Imeraj, Prosecutor. Legal framework and recent amendments for the criminal offences related to corruption Institutional framework."— Presentation transcript:
Legal framework and recent amendments for the criminal offences related to corruption Institutional framework Case Studies Difficulties of investigating corruption How to better fight corruption
International legal framework United Nations Convention Against Corruption (ratified by Law no. 9492, dated 13.03.2006; Criminal Law Convention on Corruption (ratified by Law no. 8778, dated 26.04.2001) -
Legal framework and recent amendments for the criminal offence of corruption Domestic Legislation Criminal Code Active corruption in the private sector (article 164/a) – amended on 1.3.2012 Passive corruption in the private sector (article 164/b) – amended on 1.3.2012 Active corruption of persons exercising public functions (article 244) Active corruption of foreign public officials (article 244/a) – added on 1.3.2012 Active corruption of high public officials or local elected representatives (article 245) The exercising of unlawful influence on public officials (article 245/1) Passive corruption of persons exercising public functions (article 259) Passive corruption of foreign public officials (article 259/a) ) – added on 1.3.2012 Passive corruption of high public officials or local elected representatives (article 260) Active corruption of the witness, expert or interpreter (article 312)
Legal framework and recent amendments for the criminal offence of corruption Domestic Legislation Criminal Code Active corruption of the judges, prosecutors and other officials of justice (article 319) Active corruption of the judge or official of the international courts (article 319/a) – added on 1.3.2012 Active corruption of the domestic and foreign arbiter (article 319/b) – added on 1.3.2012 Active corruption of the members of foreign judicial juries (article 319/c) – added on 1.3.2012 Passive corruption of the judges, prosecutors and other officials of justice (article 319/ç) – added on 1.3.2012 Passive corruption of the judge or official of the international courts (article 319/d) – added on 1.3.2012 Passive of the domestic and foreign arbiter (article 319/dh) – added on 1.3.2012 Passive corruption of the members of foreign judicial juries (article 319/e) – added on 1.3.2012
Impact of the amendments in the Criminal Code - Widening of the sphere of the criminal offence of corruption (from 11 articles to 18 articles); - Increase of penal sanctions provided for the criminal offence of corruption - Penal responsibility also for persons exercising unlawful influence on public officials On of the priorities for 2013 will be the inclusion of the criminal offence of corruption under the jurisdiction of the Court of First Instance for Serious Crimes in Tirana which actually deals with criminal offences committed by organized crime such as trafficking of narcotics, weapons, of human beings, etc. as well as some other serious crimes.
Amendments of the Constitution and their impact On September 18, 2012, the parliament of Albania approved constitutional amendments that provide for automatic lifting of parliamentary immunity from criminal prosecution for legislators, judges, and other high-level government officials in corruption cases. The changes will allow for the investigation and criminal prosecution of members of the legislature,, members of the Council of Ministers and judges (of the Constitutional Court and High Court of Justice) without prior authorization issued by the Assembly, or CC or HCJ as was required before the amendments.
Institutional Framework Establishment of Tirana Joint Investigative Unit Memorandum of Cooperation signed on May 22, 2007 between: 1. the Prosecutor General 2. the Minister of Interior 3. the Minister of Finances 4. the Head of the State Intelligence Service
Institutional Framework Goals To enhance the collaboration among different law enforcement agencies engaged in combating corruption; To increase the number of financial crime and corruption cases being referred and investigated; To improve the quality of investigation and prosecution; To increase the number of defendants being prosecuted and convicted; To increase the number of crime proceeds being sequestered and confiscated;
Institutional Framework Establishment of 6 Joint Investigative Units in Durres, Fier, Vlora, Korca, Gjirokaster, Shkoder Memorandum of Cooperation signed on May 7, 2009 between: 1. the Prosecutor General 2. the Minister of Interior 3. the Minister of Finances 4. the Head of the State Intelligence Service 5. the Chief Inspector of the High Inspectorate for the Declaration and Audit of Assets 6. the Head of the High State Audit.
Institutional Framework GPO Department Against Economic Crime and Corruption JIU Tirana District Office JIU Durres District Office JIU Fier District Office JIU Vlora District Office JIU Korca District Office JIU Shkodra District Office JIU Gjirokaster District Office
Institutional Framework Tirana JIU Head of JIU Prosecutor 2 SIS Liaisons Special Liaisons: FIU, Customs, Tax Agency, State Police, HIDAA, HSA 8 Prosecutors 8 Judicial Police Officers (State Police) 8 Judicial Police Officers (of the GPO – jurists) 3 Judicial Police Officers (General Directorate of Customs) 3 Judicial Police Officers (General Directorate of Taxes)
Characteristics of JIU’s investigations Extended use of special investigative means/methods (electronic surveillance, bugging, surveillance, undercover operations, cooperating defendants etc); Using “pro-active” rather than “post – factum” investigations (tackling corruption while it is taking place); The use of intelligence information both from SIS and FIU to generate corruption cases (transforming the information from intelligence into police information's); The engagement of the prosecutor at the very initial stage of the investigations (instructing the police officers how to initiate/build the case, preliminary steps and how to carry out the investigations); Collaboration with media to increase the awareness of public;
Challenges/Difficulties Political pressure/efforts to influence the investigations; More political support toward General Prosecutor’s Office and JIU-s in particular (not just declarative support); Need to grant protection/immunity to whistleblowers/ victims of corruptions; Need for training prosecutors and judges who deal with financial crime and corruption; Closer collaboration with the media, public and NGO-s to increase the trust in law enforcement;
Statistics for 2012 Groups of Criminal Offences as related to corruption Cases registered by the Prosecution Office Total of the proceedin gs registered in the prosecuti on office Dismisse d proceedi ngs Proceedi ngs sent to court Usage of special investigation methods Proactive investigati ons District and Appeal Courts Referrals from State Police Reports by individua ls and other subjects Initiate d by the prosec utor Article 222 of C.C. Pr. (interce ption) Article 294/a of C.C. Pr. (simula ting actions ) Article 294/b of C.C. Pr. (underc over agent) District CourtAppeal Courts Nr. Of Judged Persons No. of Detained Persons No. of Judged Persons No. of Detained persons CORRUPTION 4342623452923194951808315212212578 Group 1: Corruption in the public sector 4212593251822789911708113811011472 Group 2: Conflict of interests and the declarations of assets 52062420029864 Group 3: Corruption of Officials 21021000004342 Group 4: Corruption in the Judicial System 10220121000010 Group 5: Corruption in the private sector 50011000001100
Case Study I Criminal offence: “Passive corruption of persons exercising public functions” and “The exercising of unlawful influence on public officials“ Defendants: K.R specialist/economist in the Ministry of Finances; M.H Head of the Agency of Social Securities; D.S. Administrator of the company “Zdrava” shpk. Facts of the case: The citizen V.M, is administrator of a company which on 1993 has bought a factory signing a sale agreement but not before the notary. The contract was registered in the Local Office for the Registration of Immovable Property. On Jan. 2010 there was a need for the certificate of ownership but the ORIP did not issue such certificate as the registration was invalid. V.M has submitted a request and documentation to the Ministry of Finances and was received by the specialist K.R. The latter has told him that it was the first time they dealt with a case like that and explained a procedure to be followed which was not excepted by V.M (the contract should be signed by the 50 shareholders of the company even when V.M was the administrator and with full powers to act on behalf of the shareholders). He required him to meet with the defendant M.H (he worked in another public sector) who has told him that the “fee to get the job done was 1.5 euro per m2 – equal to 50 000 Euro”. V.M has responded that this sum was too much and M.H told him that we would discuss it with K.R. Later V.M was called and was informed that they could make a discount and cut the “fee” in half. Then the citizen D.S, a friend of the defendant M.H was involved and told V.M to give the money to him as he was authorized to do that. V.M has reported these facts to police.
Case Study I Investigation techniques - Surveillance in public places (the defendants held meetings with V.M requesting money and making negotiations about that) - Interception of telephone conversations - Conducting of an entrapment operation (finally it was agreed that V.M would give 7,500 Euro. He met K. R and handed him the money which were provided by the police. After K.R. left he was stopped and searched by police. The three defendants were arrested. - The court found the three defendants guilty and condemned them accordingly.
Case Study II Criminal offence: “Passive corruption of persons exercising public functions”, “Laundering of the proceeds of crime“, “Active corruption of persons exercising public functions” Defendants: K.D, doctor in the state hospital and I. H, family member of a patient.
Case Study II Facts of the case: FIU received a report from a bank that the citizen K.D had deposited in cash the sum of 270 000 $ and had declared as the source of that money, the income from his job as a doctor and as a lecturer in the Faculty of Medicine. FIU conducts some verifications and it results that K.D does not have any other profitable activity. He has worked as a doctor in the state hospital since 1964. It resulted that K.D together his wife owns a joint bank account since 2000 in the sum of 370 000 $. The case has been referred to the Department Against Financial Crime in the General Directorate of Police.
Case Study II Conducted verifications - K.D received as income from his job as a doctor and lecturer in the Faculty, the salary of 300 $ and 800 $, respectively) - The monthly salary of his wife was 350 $ per month. - His two children had studied in USA (1997-2002) and after their studies they were employed in two different companies in USA - The deposited sums of money in the banks are not justified by the monthly income in years of the family (living costs, education and living expenses of his two children in USA, frequent visits abroad, etc.) - Against K.D there were two prior criminal proceedings which for the criminal offence of the “Passive corruption from persons exercising public functions” and “Negligent medical treatment” which were dismissed for insufficiency of evidence. - From the contact with a patient, it resulted that the doctor K.D took from 300 $ to 500 $ for each surgical operation at the state hospital. - For the last three years K.D had performed 1200 operations in the public hospital. - Three more reports were taken for previous cases of passive corruption of K.D
Case Study II Investigations/ Usage of Special Investigation Methods - Interception of telephone conversations for 4 months - Interception in public places for two months (in three cases it was registered and documented the soliciting and receiving of the money after the performed operations in the public hospital) - Surveillance accompanied by photography and filming (in three cases were registered meetings and receiving of money from relatives of the patients);
Case Study II Financial investigations - Investigation of movable and immovable property in all the relevant offices; - Investigation in all the second level banks and at FIU for the bank accounts of all the family members of K.D; - Investigation of the financial transactions in the companies “Western Union” and “Moneygram” - Investigations in Tax and Customs Authorities, as well as the Center for the Registration of Companies for possible private business activities; - Investigation and documentation of the income from salaries and other sources for K.D and his family members; - Investigations in the travel agencies for the travels abroad of K.D and his family members as well as for the prices/expenses of this travels.
Case Study II Arrest in flagrance - K.D was arrested in flagrance at the time of receiving 500 $ after the operation of a patient; - It was also arrested the citizen I.D (the father of the operated patient) who gave the sum of money. Observations/sequestrations/interrogations - Observation of documents in the hospital, banks, travel agencies, mobile telephones, etc.; - Sequestration of the sums of money from bank deposits and a land and an apartment; - Interrogations of patients, their relatives, colleagues, nurses, etc. The case was sent to the court with the abovementioned charges - It is still pending before the court.
Difficulties of investigating corruption Corruption is regarded as one of the most difficult crimes to investigate. There is often no scene of the crime, no fingerprint, no eye-witness to follow up. Even if there are witnesses, they are often parties to the corruption themselves, hence tainted with doubtful credibility when they become prosecution witnesses in court. The offenders can be equally as professional as the investigators and know how to cover their trails. The offenders can also be very powerful and ruthless in enforcing a code of silence amongst related persons through intimidation and violence to abort any investigation. In this modern age, the sophisticated corrupt offenders will take full advantage of the loopholes in cross-jurisdictions and acquire the assistance of other professionals, such as lawyers, accountants and computer experts in their clandestine operations and to help them launder their corrupt proceeds.
How to better fight corruption Independence from undue interference Adequate Investigative Powers Adequate resources Confidentiality of investigation with a good system of protection of whistleblowers and key witnesses; International Mutual Assistance (many corruption cases are now cross- jurisdictional and assistance is needed in the areas such as locating witnesses and suspects; money trails, surveillance, exchange of intelligence, arrest, search and extradition, and even joint investigation and operation. Professionalism and dedication of investigators who need to be particularly effective in interviewing techniques and financial investigation An effective complaint system to attract quality corruption reports. (The system must be able to encourage quality complaints from members of the public or institutions, and at the same time, deter frivolous or malicious complaints. It should provide assurance to the complainants of the confidentiality of their reports and if necessary, offer them protection) More use of proactive investigation methods, such as entrapment and undercover operations