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Ombudsman Public ecture

Policieson

Investigating and Prosecuting

Corruption Cases

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BACKGROUND

20th century experience: Enforcement alone inadequate response togrowing problem of corruption

National anticorruption strategyrequires two additional elements

Prevention Public education and support

Recognised in 2005 UNCAC

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ENFORCEMENT

Community values in criminal lawto be upheld

Anticorruption laws to be enforced

Effective investigation andprosecution necessary

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CORRUPTION OFFENCES

Corruption for our purposes: The unauthorised trading of entrusted

authority Comprising:

briberygift offence

illicit enrichment

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MORE CORRUPTION OFFENCES

abuse of authoritytrading in influence

corruption-related crimebribery of judges, arbitrators and

sports officials bribery or treating of voters

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INVESTIGATING POLICY

CONTEXT Investigation depends on information But corrupt deal produces no

complaining victim

Information must come from reluctantthird party Investigating policy has direct effect

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THE POLICY ITSELF

Investigate every allegation ofcorruption capable of

investigation,no matter how unimportant

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WHY? The unimportant often unravels into the

very important

Dismiss the complaint as insignificant and

the complainant will never return

Picking and choosing breeds mistrust

All corruption matters no room for doublestandards

Many small acts of corruption harmfuland one small act can be disastrous

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IN CONSEQUENCE

Investigations are demand led Only reacting to allegations means

no targeting of individuals or sectors Anticorruption body responsive tocommunitys wishes

Reputation for impartiality developedand maintained by no selectivity

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IN CONSEQUENCE

Investigations are demand led Only reacting to allegations means

no targeting of individuals or sectors Anticorruption body responsive tocommunitys wishes

Reputation for impartiality developedand maintained by no selectivity

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CORRUPTION-RELATED CRIME

Investigation often includes othercriminality besides corruption

Corruption aspect often peters out

Operational decision case-by-casewhether to complete investigation ortransfer to police

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CONFIDENTIALITY

Confidentiality of investigation is vital:informants fear of leak will stopinformation sources

Strict internal confidentiality and needto know

Offence for anyone, includingcomplainant, to disclose fact ofinvestigation or any detail of it

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POWERS OF INVESTIGATION

Normal police powers of arrest,detention, search, seizure andsurveillance

Interception of communications Search for and examination of bank

accounts Suspects attendance & questioning Retention of travel documents

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CLOSING INVESTIGATIONS

Most investigations do not end incourt and must be closed (nfa) Vital that public feels investigation

properly done and can properly beclosed Not possible to make public

Solution: advisory committee oftrusted citizens which endorsesclosure

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PROSECUTING POLICY

GENERAL

Both sides of bribery deal equallyliable Same maximum penalty applicable to

both Circumstances of case may justifyvery different sanctions

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MINIMUM SENTENCES

Not a good thing many cases warrant only minor

penalty

reluctance to convict if excessivepenalty must follow

Counterproductive

Better to allow judge to imposesmall penalty in cases that meritnothing more

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ACCOMPLICE EVIDENCE,CORROBORATION AND OTHER

EVIDENTIAL PROVISIONS Accomplice evidence admissible for

prosecution Corroboration not required Evidential presumptions of property

ownership and of corruption Court protection of identity of

informant not called as witness

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PROOF IN ILLICIT ENRICHMENTCASES Prosecution to prove owned wealth in

excess of official salary of official Defendant to show excess lawfully

obtained In some countries prosecution to

prove wealth in excess of lawfulearnings a task that is almostimpossible. Object of offence

negated.

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PROSECUTORS DISCRETION

Successful prosecution often requiresone party to corrupt act to giveevidence against other.

Clear law needed that prosecutor canchoose not to prosecute one if hegives true evidence against other.

Likewise court power to sanctionlesser sentence on one giving trueevidence against other.

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RECOVERING THE PROCEEDS

Court power to forfeit seized propertyon being satisfied it results fromcorrupt act, whether convictionobtained or not

Consider also court power to forfeitseized property on prosecutorsapplication if no justified claim madein 12 months

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CONCLUDING REMARKS

Successful enforcement is essentialelement of national anticorruptionstrategy

Incumbent on policymakers to enactthese necessary substantive,procedural and evidentiary provisions

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