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Due process:
build confidence in your investigation process
Compliance & Ethics Institute, October 2017
Cedric Bourgeois
Principal Investigator – UNESCO
1. Due process: applicable to investigations?
2. Impact on perception and « tone at the top »
3. Due process in investigation policies
4. Due process in investigation practices
Agenda
Las Vegas – October 2017 – C. Bourgeois – UNESCO
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1. Due process: applicable to investigations?
2. Impact on perception and « tone at the top »
3. Due process in investigation policies
4. Due process in investigation practices
Agenda
Las Vegas – October 2017 – C. Bourgeois – UNESCO
Due process: the source?
Safeguard from arbitrary denial of life, liberty, or property by the
King or Government…
Magna Carta (1215), clause 39: “No free man shall be seized or
imprisoned, or stripped of his rights or possessions, or outlawed or
exiled, or deprived of his standing in any other way, nor will we
proceed with force against him, or send others to do so, except by
the lawful judgment of his equals or by the law of the land”
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Due process: the source?
5th Amendment to the United Stated Constitution: “No person
shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor shall any person
be subject for the same offence to be twice put in jeopardy of life or
limb; nor shall be compelled in any criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for public
use, without just compensation.”
Due process: the source?
European Convention on Human Rights, article 6: “In the
determination of his civil rights and obligations or of any criminal
charge against him, everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law. (…)
Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law.
Everyone charged with a criminal offence has the following
minimum rights: (a) to be informed promptly (…) of the nature and
cause of the accusation, (…) (c) to defend himself in person or
through legal assistance (…).”
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Due process: applicable to investigations?
ECDH case law tends to extend the procedural guaranties to pre-
trial phases. Article 6 on fair trial is applicable to:
- Questioning of a person, even if not a suspect (Aleksandr Zaichenko v.
Russia, §§41-60),
- Practical measures such as search (Foti v. Italy, §§52-53)
- The whole investigation as soon as suspicions against a person
are officialy notified (Eckle v. Germany, §§73-75)
Benefits of implementing due process to
internal or administrative investigations?
� Admissibility of evidence across multiple jurisdictions
(FORENSIC standards)
� Protect investigators and organizations from prosecution (data
privacy, safety and freedom of persons, property right,…)
� Build acceptance of the investigative function
� Deterrent effect on fraud and misconduct
� Convey proper « tone-at-the-top »
� CAVEAT: consult with a lawyer on applicable law
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Agenda
1. Due process: applicable to investigations?
2. Impact on perception and « tone at the top »
3. Due process in investigation policies
4. Due process in investigation practices
Las Vegas – October 2017 – C. Bourgeois – UNESCO
Make the process known and predictable
� Publish your investigation policies
� Consult with staff representatives
� Report on investigative activities and disciplinary outcomes
� Audit clause in standard contract
� Focus on organizational learning points and prevention
Be positive! Our business is integrity, not sanction
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Fraud awareness training
Fraud training for Managers/Executive and Employees reduce the
impact of fraud:
� Median duration reduced by 47%
� Median loss reduced by 40%
Source: ACFE Report to the Nation 2016
Perception of fairness
Video
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Perception of fairness
Agenda
1. Due process: applicable to investigations?
2. Impact on perception and « tone at the top »
3. Due process in investigation policies
4. Due process in investigation practices
Las Vegas – October 2017 – C. Bourgeois – UNESCO
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Independance of the investigative function
� Fact finding mission
� Testimony can be sought in court
� Impartiality
� Reporting line (head of the organization, board, other?)
� Segregation of duties in the disciplinary process
Fair investigation
� Presumption of innocence
� Duty of care (subject, witnesses, whistle-blower)
� Confidentiality
� Data privacy (emails, recording of interviews,…)
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Fair investigation
� Timely action (statute of limitations and duty of care)
� Incriminating and exculpatory material
� Be aware of the cognitive bias in investigation: tendency to
validate assumptions
Notice of the charges
� Paramount to fair interviewing
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Meaningful opportunity to respond
Subject is presented with all factual elements during the
investigation
� Evidence material
� Testimonies → right to confrontation?
Opportunity for the organization too
� Avoid erroneous decision or solidify the case with admission
� Find out the extent of the fraud
� Identify control weaknesses
Standard of proof
� “Something is more probable than not” (CII)
� “Preponderance of evidence” (UNAdT)
� Burden of proof is “heavier in disciplinary matters than in
administrative matters” – but not “beyond a reasonable doubt”
(UNDT)
� Standard for employment tribunals in your jurisdiction?
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Agenda
1. Due process: applicable to investigations?
2. Impact on perception and « tone at the top »
3. Due process in investigation policies
4. Due process in investigation practices
Las Vegas – October 2017 – C. Bourgeois – UNESCO
Balance Policy / Practice
Tu patere legem quam ipse fecisti
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Right to remain silent in administrative
and internal investigations?
� Defense cannot be compelled to self-incrimination (art.6
ECHR, 5th Amendment)
Vs.
� Duty of loyalty of employees and officers (labor law, mandate)
Right to assistance or legal counsel?
� Right to a lawyer (explicit in art.6 ECHR & 6th Amendment)
Vs.
� Contractual relation governed by labor law, collective
agreement, internal rules (union rep., staff member, lawyer,…)
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Access to the investigation file?
� Investigation phase (be confronted with evidence)
Vs.
� Disciplinary procedure (access to the full dossier?)
Interviewing techniques
REID – a confession
method (9 steps)
� Positive confrontation
� Accusatory
� Convey certainty of
guilt
� Offer a rationalization
� Loaded or alternative
question: “Did you
plan this out or did it
just happen on the spur
of the moment?”
PEACE – non-accusatory
method
� Preparation and
planning
� Engage and Explain
� Account (cognitive approach
or conversation management)
� Closure
� Evaluation
ACFE – 5 steps
� Introductory
� Informational
� Assessment
� Closing
� Admission seeking
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Interviewing techniques
Interviewing techniques
Respect
“I speak to everyone in the same way, whether he is the garbage
man or the president of the university.”
― Albert Einstein
Perception of fairness
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Interviewing technique
Use Empathy
Manage the
relationship
Use emotional clues to
deception
©Dr Paul Ekman – Emotions revealed
Fair investigation and interviewing
Due process protects your organization and investigators against:
- Reputational risk
- Civil liability: evidence can be void
- Criminal liability: data protection infringements, privacy
violation, false imprisonment,…
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Tempted to cut corners?
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Due process:
build confidence in your investigation process
Compliance & Ethics Institute, October 2017
Cedric Bourgeois
Principal Investigator – UNESCO