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1 Investigation and Prosecution of Corruption cases: Lessons learned Concluding Remarks By By Dr. A.Y. Shehu DG, GIABA On Law Enforcement Theme at the.

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Presentation on theme: "1 Investigation and Prosecution of Corruption cases: Lessons learned Concluding Remarks By By Dr. A.Y. Shehu DG, GIABA On Law Enforcement Theme at the."— Presentation transcript:

1 1 Investigation and Prosecution of Corruption cases: Lessons learned Concluding Remarks By By Dr. A.Y. Shehu DG, GIABA On Law Enforcement Theme at the Global Forum V Held in Johannesburg South Africa 2 – 5 th April 2007

2 2 Why Investigate and prosecute Corruption To enforce the rule of law To enforce the rule of law Deprive offenders’ liberty Deprive offenders’ liberty To destabilize criminal networks To destabilize criminal networks To deprive criminals of assets – confiscation To deprive criminals of assets – confiscation Deterrence Deterrence Correction Correction

3 3 Strategic considerations How well has the case been investigated? How well has the case been investigated? What are the chances for success? What are the chances for success? What is each defendant’s position? What is each defendant’s position? What assets are involved, where and in what form? What assets are involved, where and in what form? What resources are available? What resources are available? Hire outside counsel for big cases? Hire outside counsel for big cases? Select fewer cases – excellent preparation Select fewer cases – excellent preparation

4 4 Strategic considerations - cont What charges to proffer? Right statute, correct date, right defendant, right papers served on time, etc What charges to proffer? Right statute, correct date, right defendant, right papers served on time, etc Are all statements signed & served? Are all statements signed & served? Original exhibits ready for inspection by the court? Original exhibits ready for inspection by the court? Does the evidence prove the elements of the offence (s)? Does the evidence prove the elements of the offence (s)? Have you studied the relevant statutes and case law? Have you studied the relevant statutes and case law?

5 5 Strategic considerations - cont Are all your witnesses ready & briefed? Are all your witnesses ready & briefed? Do they have any special needs, e.g. anonymity, interpreter, visual, etc Do they have any special needs, e.g. anonymity, interpreter, visual, etc Your mode of dress suitable? Your mode of dress suitable? Observe the right etiquette Observe the right etiquette Know your case in and out Know your case in and out Anticipate your opponent’s position Anticipate your opponent’s position

6 6 Investigation vs Prosecution A successful prosecution is a function of good investigation A successful prosecution is a function of good investigation –There should be a professional team of investigators and prosecutors working in harmony for a common goal

7 7 Investigators vs Prosecutors 2 Strengthening the capacity of investigators to specialize in different aspects of investigation: Strengthening the capacity of investigators to specialize in different aspects of investigation: –Financial investigation –Interrogation –Surveillance –Computer forensic/accounts analysis –Under-cover operations –Sources and case management

8 8 Why confiscation is priority A proactive strategy to defeat OC – so: A proactive strategy to defeat OC – so: –Develop countermeasures against asset forfeiture –Confiscation laws complex- highly litigated –Lack of asset recovery strategy –Inadequate expertise – civil lawyers may be employed –Confiscation should be integrated with general law enforcement work –Sensitize judiciary on confiscation issues

9 9 Non-conviction based confiscation How feasible? How feasible? –The UNCAC art on asset recovery –Victim needs –Requires a lower/civil standard of proof – balance of probability –Freezing orders faster to obtain in civil courts –Wider array of potential defendants to target

10 10 Limitations Complex legal issues may arise Complex legal issues may arise Could be expensive – hiring of civil lawyers and forensic accountants Could be expensive – hiring of civil lawyers and forensic accountants State may lose sovereignty if it subject itself to civil jurisdiction State may lose sovereignty if it subject itself to civil jurisdiction Counter claim arise Counter claim arise

11 11 Obstacles to Investigation and prosecution Dual criminality rule – determining offences Dual criminality rule – determining offences Corruption-OC-ML Nexus Corruption-OC-ML Nexus Burden of proof Burden of proof Codes of penal procedures – types/scope of evidence admissible Codes of penal procedures – types/scope of evidence admissible International legal assistance International legal assistance Immunities/impeachment procedures Immunities/impeachment procedures

12 12 International cooperation Transfer of criminal proceedings Transfer of criminal proceedings Mutual legal assistance Mutual legal assistance Judicial cooperation Judicial cooperation

13 13 International Cooperation Extradition – through MLA for: Extradition – through MLA for: –Taking of evidence/statement –Effecting service of judicial documents –Executing searches, seizures and freezing –Examining objects and sites –Providing information, evidentiary items, & expert evaluations, –Providing original or certified copies of records –Identifying/tracing of proceeds of crime –Facilitating voluntary appearance of persons in requesting state –Recovery and return of assets

14 14 International cooperation depends on International, including regional instruments/treaties International, including regional instruments/treaties Political relations b/w states -reciprocity Political relations b/w states -reciprocity Emerging good practices Emerging good practices Technical assistance/capacity Technical assistance/capacity

15 15 International legal instruments The UN Convention against Transnational Organized Crime (TAC) 2000 The UN Convention against Transnational Organized Crime (TAC) 2000 The UN Convention against Corruption (UNCAC) 2003 The UN Convention against Corruption (UNCAC) 2003 The AU Convention against Corruption 2003 The AU Convention against Corruption 2003 The ECOWAS Protocol on Corrupt Practices, etc. The ECOWAS Protocol on Corrupt Practices, etc.

16 16 Pre-conditions for successful Investigation and prosecution Strong political will to deal with E & FC Strong political will to deal with E & FC Comprehensive law with dissuasive sanctions Comprehensive law with dissuasive sanctions Rule of law Rule of law Integrity of institutions/individuals Integrity of institutions/individuals Adequate resources Adequate resources Mutual legal assistance framework Mutual legal assistance framework Managing the risks Managing the risks

17 17 Pre-requisites Professionalism – competent/skilled staff Professionalism – competent/skilled staff Good knowledge of the law Good knowledge of the law Independence – resist influence Independence – resist influence Coordination/cooperation with other organs Coordination/cooperation with other organs Resourcefulness/initiative Resourcefulness/initiative International cooperation International cooperation

18 18 The way forward Independence of enforcement agency Independence of enforcement agency Strong and timely financial support Strong and timely financial support Wide investigative powers Wide investigative powers Capacity building – professionalism Capacity building – professionalism Attractive remuneration Attractive remuneration Adequate/credible witness protection programme Adequate/credible witness protection programme

19 19 The way forward - cont Sufficient ICT – data management Sufficient ICT – data management A credible, efficient & effective CJS A credible, efficient & effective CJS Mazimize leverage beyond entry-point by addressing cross cutting issues Mazimize leverage beyond entry-point by addressing cross cutting issues Consistency Consistency Sustainability Sustainability

20 20 Conclusion Technology/globalization – big challenge Technology/globalization – big challenge Criminals are adaptable Criminals are adaptable Justice is a credible deterrence Justice is a credible deterrence It is a reflection of effective rule of law It is a reflection of effective rule of law Technical assistance critical Technical assistance critical Capacity of prosecutor – a quality control Capacity of prosecutor – a quality control

21 21 Thank you for your attention For further details: Dr. AY SHEHU GIABA Secretariat Sacre Coeur 3 Pyrotechnie x VDN Villa No. 101 BP , Dakar, Ponty, Senegal. Tel: / Fax: / Website:


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