Chairperson: Mr. Johnny SAVERIO Ayik
Republic of South Sudan
Co-Chairperson: Mr. NIYOZBADALOV Firdavs
Tajikistan
Rapporteur: Mr. Kiki Ahmad YANI
Indonesia
Co-Rapporteur: Ms. KHEANG Ratana Cambodia
Members:
Mr. Sayed Iqbal HOSSAIN
Bangladesh1
Mr. KULANBEK UULU Aibek
Kyrgyz Republic
Mr. Ramesh Kanta ADHIKARI
Nepal
Mr. Feliciano XIMENES
Timor-Leste
Ms. NGUYEN Thanh Huyen
Vietnam
Ms. NGUYEN Thi Thanh Tu
Vietnam
Mr. Yasutaka IMUTA Japan
Advisor: Prof. Kazuhiko MORIYA UNAFEI
I. INTRODUCTION
Group
Two started its deliberations on 28th October 2014 at 09:40 am. The
group elected Mr. Johnny SAVERIO Ayik
and Mr. NIYOZBADALOV Firdavs, as its
Chair and Co-Chair respectively. Mr.
Kiki Ahmad YANI was selected as Rapporteur and Ms. KHEANG Ratana as Co-Rapporteur.
The group, which is assigned to discuss “Effective
Investigative Measures for Corruption Cases”, agreed to conduct its
discussion in accordance with the following agenda: 1) Current situation of investigating corruption cases, 2) Effective methods of investigation
of corruption cases, and 3) Measures
to encourage persons or bodies that have useful information on corruption to
cooperate with the related authorities.
II. SUMMARY
OF DISCUSSION
To improve current situation of investigating
and prosecuting corruption cases, we have to undertake effective measures:
Firstly, we should empower the Anti-corruption Agencies and its investigators
by enacting effective laws and organizing regular trainings and courses.
Furthermore, it is advisable to attach special importance to team work with the
support and the contribution of all members of the investigation team. Secondly,
it required having database of information and legalized investigation
techniques. Thirdly, there is the need to have to well-equipped forensic
laboratory. Fourthly, there is the need to have effective laws for protection
of witness, whistleblowers and their family from defendants and violators, and
punishment of those who do not report corruption cases and do not cooperate
with the process of investigation and prosecution. Fifthly, special importance
has to be given to the regional and international networking to obtain more
knowledge, exchange experiences and cooperate among each other in issues of
investigation, prosecution and assets recovery, no single country that can
fight corruption alone, fighting corruption require the cooperation of all the
countries. Last but not least, the Anti-Corruption Agencies should be more
independent and in doing their work without any influence and interference from
any institutions and/or offices as stated in Jakarta Statement.
A- Current situation of investigation corruption
cases in each country
Corruption
cases are in most of the countries a conduct comprising offences related to
public official. In many of the countries except two countries in which they
have separate laws for corruption and/or financial offences. Corruption
offences are mentioned in the penal code, and include conduct comprising a
conspiracy or attempt to commit or engage in an activity that would constitute
a corrupt conduct under those laws. These are the offences relating to public
servants and/or committed by public servants. Whereby corrupt practices include
soliciting, accepting, obtaining, giving, promising or offering of a
gratification by way of a bribe or other personal temptation or inducement, or
the misuse of a public institution/authority or office to achieve private
advantage or benefit to the person or others.
1- Frequent Corruption Cases:
After
sharing among the members of the group, most of the countries, they face almost
the same issues of the corruption. Therefore, the frequent cases investigated
and prosecuted are:
-
Bribery
(active and passive): the offering, promising,
giving, accepting or soliciting of an advantage as an inducement for an action
which is illegal, unethical or a breach of trust.
-
Embezzlement:
when a person
holding office in an institution, organization or company dishonestly and
illegally appropriates, uses or traffics the funds and goods they have been
entrusted with for personal enrichment or other activities.
-
Abuse
of power: an act committed by public servants or
citizens invested with public office through election or otherwise, in the
exercise of his/her duty or in the course of exercising his/her duty such as
taking action hinder law enforcement in order to take any illegal advantage.
The public officers with authorities, but they take advantage for themselves or
their relatives.
-
Money
Laundering: the process of concealing the origin,
ownership or destination of illegal or dishonestly obtain money by hiding it
within legitimate economic activities. Make the dirty money to be clean e.g.
the criminal make the shell companies in order to make their dirty money out of
their hands. However, Indonesia, Japan and Vietnam do not consider the money
laundering offense as a corruption case.
-
Conflict
of interest: situation where an individual or the
entity for which they work, whether public or private sector, is confronted
with choosing between the duties and demands of their position and their own
private interest.
-
Fraud:
to cheat. The act of intentionally deceiving someone in order to gain an unfair
or illegal advantage (financial, political or otherwise). It is an act of
deceiving somebody so as to get money or goods illegally.
2- Obstacles to the detection, investigation and
prosecution of corruption:
All
the countries have to deal with the number of obstacles that interfere with the
detection, investigation or prosecution of the corruption cases. The obstacles
undoubtedly are many from human and financial resources to effective tools and
enacted laws. However, the political will in many countries is one of the main
obstacles, especially pressure from powerful elements of the society and
high-ranking officials. In spite of that the members of group note that their
countries are going through the formation of the democratic institutions and at
this stage there can be some roughness’s at the fight against corruption. However, they are confident that the fight
against corruption as with the negative phenomenon, which is capable to
undermine statehood base is in full swing in their countries and will hopefully
succeed.
Although
the Anti-Corruption Agencies try their best efforts to investigate and
prosecute corruption cases in all the countries in order to combat corruption,
however, they still face many obstacles, summarized as follow:
-
Political
will: The leaders of the most of the countries do
not have a real political will to combat corruption.
-
Database
Information: Most of the
countries don’t have publicly available database information to search for more
information. It’s hard to collect information and sometimes informants try to
delay providing information because they are not open-minded and do not
cooperate with the investigators.
-
Tradition
and Attitudes: The tradition
or custom of each group in many countries protects the benefit of their groups,
making it difficult to cooperate in investigation processes. Nepotism is one of
the main obstacles. In addition to the
low level of education of many citizens make them not seeing the important of
their duty in the fight against corruption. Moreover, they still do not
understand how bad it is the impact of the corruption on their life and country
development.
-
Human
and Financial Resources: The
Anti-Corruption Agencies don’t have enough qualified investigators in most
cases and specialized investigators. There is lack of logistic support from
government. Some countries, investigators have to use their money for
investigation.
-
Forensic
Laboratory: The tools of
investigation are not high tech (especially many countries don’t have technical
forensic investigation and document examination); lack of modern investigative
techniques and machines is what most of countries face.
-
Security:
Job security, well
paid salary package and personal security of the investigators are not
guaranteed in many cases specially when dealing with serious cases, which
involved the higher ranking officers.
-
Evidence:
It is not easy to
produce evidences accepted by the courts; most of the evidences are very hard
to find and to be accepted by law e.g. evidence obtains during undercover
operation among others.
-
Delay
in time: In some cases
investigation is done after a long time from committing the act and
investigation may take longer time because of difficulties in getting evidence,
which make the case out of date. Also during the trial stage, long prosecution
period and prolong trial process.
-
Protection
of Witnesses: There are no
enough facilities to provide protection to the witness and there are no
effective laws and mechanism to protect witnesses and whistle-blowers.
-
Weak
legislations: The
Anti-Corruption Agencies are limited in most cases when it comes to the process
of investigation and prosecution and the tools needed to accomplish their
mandate to fight corruption. Some countries do not have power to investigate
and/or prosecute. They have to depend on police offices and prosecution offices.
There are no proper laws and if they exist, there is no proper implementation
of the existing laws.
B- EFFECTIVE METHODS OF INVESTIGATION OF CORRUPTION
CASES
One of the main tools for effective structure
of investigation is the principal
officers who are the investigators
and prosecutors. They assist in carrying
out the task of investigation
and support the investigation team. The investigator must have a special
ability and to be supported
on a regular basis especially through
tiered education/training program. Maximize information from various sources is the key success of an
investigation, and analyzing the precision and accuracy of this information.
1- Effective structure/team of investigators:
Good investigation
must begin with a good work plans
and structured so
that the investigator knows
what they will do during the process of
investigation, work plans should be shared among the members of
investigation team, so that all
team knows and understand
the strategies and measures
that will be carried out during
the investigations. In addition to the
work plan, the investigation team should have also people
who have the knowledge and
abilities of cases handled to achieve the
target of the investigation
successfully. To upgrade the capability of investigators, through programs to enhance the ability of
investigators infield of relevant legal provisions and the corruption investigation latest
techniques, since the corruptors in their action do more sophisticated actions,
and investigator should anticipated by the
further streamline investigation.
The structure of an effective investigation can be achieved
through:
-
Well-organized system of approving the
investigation. Investigation must always
be approved by the head of the unit/agencies, not by every investigators;
-
There must be well organized team with a team
leader, human relationship is also important by the team of investigators (the
team leaders have to know about the team members)
-
There must be well drawn and organized Work plan
for the investigation and know what they want to achieve in the investigation;
-
There must be specialize investigators in the team;
-
There must be a special room for interview with
good environment;
-
There must be regular on job training advisable
every 6 months and refreshment courses and training;
-
There must well preparation for interviews, we need
to prepare questions before the interviews, and ensure that these questions are
known and agreed by the investigation team and the head of ACA; and
-
Building confidence and trust from the side of the
public (among the citizens), confidentiality is very important for the
investigators.
2- Use of available information:
Information and data is very important
in the disclosure of corruption
cases and proving evidence before court of laws. The
investigators have to be smart in
maximizing the information and data collected from various sources
to be used as the
preliminary investigation and/or develop
investigation process and plan. In many countries, investigators
obtain information or clues from complaint letters, accusations, media
coverage, informant, whistleblowers, investigation of other cases and issues
(ex. analysis of seized evidences or investigation of suspects of tax evasion
cases) etc. It is important to obtain information from various sources, but it
is also important to evaluate the value of this information correctly because
most of them could be untrustworthy such as a slander.
ACA need to have cooperation with NGOs among others
who are concern for the eradication of
corruption, sometimes they
have the information and data that can assist
the investigation. In
most cases it is hard to get information from each place because it takes time and
many require bureaucracy. ACA to develop and have database center, to make it easy to access
and get information, in order that the investigators can be facilitated by getting
information easily and fast.
3- Search and Seizure:
It is important to
understand what we mean by the word “warrant”. Warrant means an order issued by
concerned authority to carry out certain activities by an officer based on the
power given by inactive law to that authority to such an issue an order
whatsoever be warrant of arrest search and seizure among others. Therefore, it
is important that any warrant issued by an authorized institution should have
that power as given to it by enacted law.
The ACA of many countries
have a power to search and seize by themselves and other have even power to
issue warrant of arrest. However, in other countries, investigative agencies
have to get court warrant or approval of the prosecutor. When the ACA has
limited authority to issues certain warrants, it makes investigation be very
difficult. Indonesian
and South Sudan ACA like other ACA has the authority to search and seize in a corruption case, the
warrant to search and seizure we do not need to be issued by the court, it
is enough that warrant is issued by the ACA and signed by its
head. In Japan, investigation agency including prosecutors does not have
the right to issue the warrant of search and seizure. In order to avoid time consuming,
investigating agency should have right to issue different warrants; such as summon
and interviewing any person without consideration of immunity and considering of
his/her position.
Participating countries has a different basis to conduct search
and seizure, but all agreed that the
definition of a warrant is the power given by
enacted law to certain authority to issue an order whatsoever be e.g. warrant
of arrest, search, and seizure. Search and seizure are important tools of
investigation and producing evidence before court of laws.
4- Special investigation techniques:
5- Interagency coordination and collaboration:
C- MEASURES
TO ENCOURAGE PERSONS OR BODIES TO SUPPLY INFORMATION TO ACA
ACA in carrying
out their duties need the participation of the
public/citizens, form of information
or baseline data given public
used to find early indications of corruption, but to do so is not easy,
because it requires awareness of the public to report corruption and providing facilities that are easy to be able to report such crimes. Even if necessary, there should be a special law that requires the
public to report corruption, if
not, then that person is liable
to punishment. One thing that is
more important is to maintain the
confidentiality of the reported
allegation and the reporting
of corruption is.
Sometimes in
revealing a case,
the investigator obtain good information from witnesses,
whistle-blower or defendants
who cooperate, in
which case it is also need measures for the protection of witnesses, whistle-blowers and the defendant, or even have an award to give mitigation of
punishment for them.
1-
Reporter-friendly mechanisms to encourage reporting by citizens, raising public
awareness of such measures:
To encourage
the citizens/public to report corruption boldly, in
all countries who participate in this program has been implemented some measures, for
example through education to increase
public awareness of the consequences of
corruption, provide the good and friendly facilities to
submit the public complaints to the Anti- Corruption
Agency (ACA), and the more important is
how to maintain the confidentiality of
the complainant and report, and the action of the ACA to follow up the complaints. These measures
will encourage the citizens to reporting corruption case.
In other countries, they increase
public awareness of the consequences of
corruption by Anti-Corruption Agencies dissemination to
public officials, communities, to post stickers, banners, slogan of
anti-corruption, to distribute brochures, to produce spots, songs and books,
and to celebrate International anti-corruption day on 9th December
every year by displaying concert, poem and painting contest from students and
comedy as well, or launch an educational book related to corruption act in the curriculum
of secondary school and university.
After the
public/citizens being aware of consequences of corruption, they will
have the courage to report the corruption that
occurs in their societies. Moreover, the ACA provides
the good and friendly facilities to
submit the public complaints, such as rooms to receive
complaints from citizens, reporter box, hotline, and official website as well, therefore the complaints can be submitted
directly or through the facilities
that have been provided.
Maintaining the confidentiality of
the complaints and follow up by providing information on the progress of cases reported by the
complainants is needed. Last but not least, in order to encourage
witness to provide information, there should be a system of rewarding them, and
the citizens who reported corruption cases should be publicly praised
and received rewards. The ACA should give awards to members of the public who
have been helping the prevention, eradication, or disclosure of corruption
activities. The award could be in form of
money, certificate of appreciation, or any forms of rewards.
2- Reporting
obligations or mechanism of related investigative agencies and public officials:
Some countries have set the laws of the obligation to report corruption to the law enforcement agencies, but
also there are countries that have not
set those laws. That law is stipulated that the citizen/public can contribute and help the prevention
and eradication of corruption, and communities shall have the rights and
responsibilities in the prevention and eradication of corruption; and also
stipulated that the government should gave awards to members of the public
officers who have been helping the prevention, eradication, or disclosure of
corruption.
As
a matter of fact, most of the countries do
not impose penalties for individual
who are aware of corrupted cases and do
not report it. It is important to introduce a law which
allowed punishment of citizens who are aware of corrupted practices and do
not provide information related to corruption. In many countries, punishment for someone who
did not report corruption is merely an administrative penalty while it should be criminal offenses for its importance. However,
most participating countries do
not have such provision.
In the future, the punishment for not reporting corruption is needed as
criminal offense in order to be more effective in against corruption.
3- Witness and/or whistle-blowers
protection:
Witness and/or whistle-blowers protection are
essential in order to help investigators in investigating corruption cases as well as
especial design mechanism for implementation. So, they should be
protected legally and physically. Only Indonesia has special
law and special agency for protection of witnesses and whistle-blowers,
the agency is tasked to provide protection to witnesses and whistleblowers and those related to them. This
agency carries out its work
in collaboration with other law enforcement agencies in order to protect
witnesses and whistle-blowers in all criminal
offenses, including corruption. While in other country,
ACA have policies and direct department which provides protection to complainants, witnesses
and relevant persons who provide information related to corrupted cases
and when need arises this department cooperate with others security organs. However, there are many countries which have no such system.
In order to get
information from the witnesses and whistle-blowers effectively, there should be
witnesses and whistle-blowers protection law, which is required financial
resource for each implementation. However, the law should clearly state the
timeframe for the protection. Also, there should be special room (which is
equipped with high tech) for whistle-blowers when they come to provide
information. The laws should provide the facilities to witnesses and whistle-blowers
to feel free (feel at home) during giving information (not showing their face
to public).
4- Mitigation of punishment/grant of
immunity from prosecution to a cooperative witness or defendants:
Most countries
do not have law
on this, excepting
Vietnam and Tajikistan, which is stated in the
Penal Code. In these countries, there are specified circumstances
for mitigation of punishment. It includes a circumstance that the defendants
cooperate with investigators and prosecutors to clarify a corruption case. In
all the countries, the laws do
not give a promise or grant of immunity to the defendant although they
cooperate with investigators. In Japan, penal code states that the
punishment of a person who committed a crime and surrendered him/herself before
being identified as a suspect by an investigative authority may result in reducing
the sentence.
The members of the group
are of the views that the law should not be introduced to allow mitigation/immunity
for defendants or witness, except when there are serious cases of corruption. However,
when introduced, it should have a good mechanism of control, if not, it may be
abused. Therefore, the best way is to introduce the use of high tech
investigation in order not to depend much only on the witnesses.
III.
RECOMMENDATIONS:
The necessary measures to
make effective investigation in each country were recommended as follow:
1- Having a special law
separate from criminal code on corruption and financial offences.
2- Ensuring that conflict of
interest is included as an offence with criminal punishment, not just
administrative punishment.
3- Ensuring that our top
political leaders and higher rank officers have the will to fight corruption
not by word, but by action through advocacy and enlightenment.
4- Enacting strong laws
which empower ACA with the functions and authorities to effectively fight
corruption and investigate corruption cases ensuring its independency as per
Jakarta Statement.
5- Preparation of work plans
for investigation and forming the teamwork as an important tool for
investigations.
6- Having qualified and
specialized investigators in qualities and quantities to do investigation.
7- Investigators should
undergo on job training and refreshment courses every 3 to 6 months on modern
tools of investigation and how to use and introduce in their works new modern technology
equipment.
8- Introducing well-equipped
forensic laboratory.
9- Having special room for
investigation equipped with special devices.
10- Introducing and
legalizing undercover operation.
11- Ensuring that evidences
obtained during the undercover operation is acceptable before courts of law;
which required amendment of evidence laws in our countries.
12- Ensuring independency of
the investigators.
13- Empowering through
legislations the ACA to have the power to and the rights to issue warrant of
search and seizures and may be arrest.
14- Ensuring provision of good
working environment, job security and dignified salary package for
investigators to ensure effective investigation.
15- Having comfortable room
to interview the defendants and witnesses.
16- Ensuring cooperation
between public officials and private sectors in providing needed information.
17- Ensuring the creation and
availability of database information whenever needed to speed and help investigators
to in fastening their work.
18- Ensuring enactment of
special laws for protection of witnesses and whistle-blowers and those related
to them; advisably having a special budget and mechanism for each
implementation.
19- Enacting laws which punish
those who have information and are aware of corrupted practices and do not
provide those information to ACA.
20- Ensuring and enacting
laws that allow ACA to issue any summons and warrants without consideration of
immunity and to interviews any persons any consideration.
21- Encouraging citizens and
the public as all to report corrupted practices to ACA using different means
such as education, communication mobilization, reporting center, hotline,
mailbox, websites, and face to face reception of people allegation.
22- Ensuring raising
awareness programs for all which is special attention to the students through
workshops, seminars, meeting, school books, clubs for corruption
fighters/citizen for corruption free society and nation.
23- Ensuring proper
implementation of the international conventions especially UNCAC, and it
inclusion of international obligations and standards in our domestic laws.
24- Ensuring cooperation
between different countries with easy facilitation of Mutual Legal Assistant
(MLA), without entering into agreements and treaties, just by using the
principles of reciprocity.
IV.
CONCLUSION
However, it should be
noted that the measures and the recommendations in this reports may be adopted
and implemented in respective countries based on the necessity and suitability
in their respective countries for ultimately achieving an effective and
efficient criminal justice system.
Finally, we should admit that still exist many
drawbacks in investigating corruption cases, from lack of strong legal
framework, ACA independency and capacity of the investigation and investigator
among others. The best way to improve and overcome investigation obstacles and
difficulties is by putting in place effective measures of investigation. In
addition, we should strengthen the global networking and acquire the modern
technologies and techniques from developed countries. If we are ready and can
change! Then we can win this battle of the fight against corruption.
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