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Phase 3 Report on Implementing the Oecd Anti-Bribery Convention In PHASE 3 REPORT ON IMPLEMENTING THE OECD ANTI-BRIBERY CONVENTION IN SLOVENIA June 2014 This Phase 3 Report on Slovenia by the OECD Working Group on Bribery evaluates and makes recommendations on Slovenia’s implementation of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 2009 Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions. It was adopted by the Working Group on 5 June 2014. This document and any map included herein are without prejudice to the status of or sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area. 2 TABLE OF CONTENTS EXECUTIVE SUMMARY ............................................................................................................................. 5 A. INTRODUCTION ...................................................................................................................................... 7 1. The On-Site Visit .............................................................................................................................. 7 2. Summary of the Monitoring Steps Leading to Phase 3 ........................................................................ 7 3. Outline of the Report ......................................................................................................................... 7 4. Economic Background ...................................................................................................................... 8 (a) Slovenia’s Banking and Economic Crisis.................................................................................... 8 (b) Slovenia’s latest developments in the fight against corruption ................................................... 9 5. Cases involving the Bribery of Foreign Public Officials .................................................................. 9 (a) Foreign Bribery Cases Terminated without Prosecution ........................................................... 10 (b) Foreign bribery Allegations where no Investigation has been Opened ..................................... 10 (c) On-Going Foreign Bribery Cases .............................................................................................. 10 B. IMPLEMENTATION AND APPLICATION BY SLOVENIA OF THE CONVENTION AND THE 2009 RECOMMENDATIONS ..................................................................................................................... 12 1. Foreign Bribery Offence ..................................................................................................................... 12 (a) Definition of Foreign Public Official ........................................................................................ 12 (b) Bribery for Acts outside the Official’s Authorised Competence ............................................... 13 (c) Bribery through Intermediaries ................................................................................................. 14 (d) Employees of Foreign Public Enterprises.................................................................................. 14 (e) Waiver of Punishment (Defence of Effective Regret) ............................................................... 15 2. Responsibility of Legal Persons ...................................................................................................... 16 (a) Link between Natural Person who Perpetrated Offence and Legal Persons ............................. 17 (b) “Insignificant” Level of Participation of the Legal Person ....................................................... 17 (c) Offenders likely to trigger the liability of the legal person ....................................................... 17 (c) Liability of Parent Companies for Actions of Foreign Subsidiaries .......................................... 18 (d) Application of Corporate Liability in Practice .......................................................................... 18 3. Sanctions ......................................................................................................................................... 19 (a) Sanctions against Natural Persons for Foreign Bribery ............................................................. 20 (b) Sanctions against Legal Persons for Foreign Bribery ................................................................ 21 (c) Administrative Sanctions ........................................................................................................... 22 4. Confiscation of the Bribe and of the Proceeds of Bribery .............................................................. 23 (a) Civil Confiscation ...................................................................................................................... 23 (b) Criminal Confiscation................................................................................................................ 24 5. Investigation and Prosecution of the Foreign Bribery Offence ....................................................... 25 (a) Principles of Investigation and Prosecution .............................................................................. 25 (b) Priority, Expertise and Resources .............................................................................................. 31 (c) Jurisdiction ................................................................................................................................ 35 (d) Statute of Limitations ................................................................................................................ 35 6. Money Laundering .......................................................................................................................... 36 (a) The Money Laundering Offence ............................................................................................... 37 (b) Money Laundering Reporting ................................................................................................... 38 (c) Authorities and Expertise to Combat Money Laundering ......................................................... 39 7. Accounting Requirements, External Audit, and Corporate Compliance and Ethics Programmes . 40 (a) Accounting Requirements and False Accounting ...................................................................... 40 (b) External Audit Requirements .................................................................................................... 41 3 (c) Detection of Foreign Bribery by External Auditors .................................................................. 42 (d) Reporting of Foreign Bribery by External Auditors .................................................................. 42 (e) Internal Controls, Ethics and Compliance Measures ................................................................. 43 8. Tax Measures to Combat Bribery ................................................................................................... 44 (a) Non-deductibility of Bribes ....................................................................................................... 44 (b) Detection and Awareness-Raising ............................................................................................. 45 (c) Reporting and the Sharing of Information ................................................................................. 46 9. International Cooperation ................................................................................................................... 47 (a) Mutual Legal Assistance ........................................................................................................... 47 (b) Extradition ................................................................................................................................. 49 10. Public Awareness and the Reporting of Foreign Bribery ............................................................... 49 (a) Awareness of the Convention and the Foreign Bribery Offence ............................................... 49 (b) Reporting Suspected Acts of Foreign Bribery ........................................................................... 52 (c) Whistleblowing and Whistleblower Protection ......................................................................... 52 11. Public Advantages ........................................................................................................................... 54 (a) Public Procurement ................................................................................................................... 54 (b) Official Development Assistance (ODA) .................................................................................. 55 (c) Officially Supported Export Credits .......................................................................................... 57 C. RECOMMENDATIONS AND ISSUES FOR FOLLOW-UP ................................................................. 59 1. Recommendations of the Working Group .......................................................................................... 59 Recommendations for ensuring effective investigation, prosecution and sanctioning of foreign bribery ........................................................................................................................................ 59 Recommendations for ensuring effective prevention, detection and reporting of
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