ACN Anti-Corruption Network for Eastern Europe and Central National Anticorruption Directorate, Asia Romania OECD Anti-Corruption Network for Eastern Europe and Central Asia EXPERT SEMINAR “EFFECTIVE MEANS OF INVESTIGATION AND PROSECUTION OF CORRUPTION” Held in Bucharest, Romania on 20 – 22 October 2010 Hosted by the National Anti-Corruption Directorate of Romania PROCEEDINGS OF THE SEMINAR These proceedings were prepared by the Secretariat of the Anti-Corruption Network for Eastern Europe and Central Asia (ACN) at the Organisation for Economic Co-operation and Development (OECD). The OECD does not guarantee the accuracy of data included in the presentations and accept no responsibility for any consequences of their use. This document is available for download from the ACN Web site at www.oecd.org/corruption/acn Participants in the expert seminar “Effective Means of Investigation and Prosecution of Corruption”, 20 – 22 October 2010, Bucharest, Romania 2 Table of Contents INTRODUCTION .................................................................................................................................. 5 SUMMARY OF DISCUSSIONS ............................................................................................................... 7 TOPIC 1 EFFECTIVE MEANS TO DETECT AND INVESTIGATE CORRUPTION CRIMES .......................... 12 MEANS OF DETECTING AND INVESTIGATING CORRUPTION OFFENCES AND JOINT INVESTIGATION TEAMS (Juuso Oilinki, Finland) ................................................................................................................................ 12 EFFECTIVE DETECTION AND INVESTIGATION OF CORRUPTION (Jure Rus, Slovenia) ......................................... 19 EUROPEAN CONVENTION OF HUMAN RIGHTS: STANDARDS IN INVESTIGATING CORRUPTION (Dmytro Kotliar, OECD) ............................................................................................................................................... 27 JOINT INVESTIGATIVE TEAMS: A SUCCESSFUL TOOL TO INVESTIGATE CORRUPTION (Dritan Rreshka, Albania) ... 32 TOPIC 2 PROSECUTION OF CORRUPTION ...................................................................................... 45 THE BADEN-WURTTEMBERG EXAMPLE (Rainer Hornung, Germany) ....................................................... 45 ROLE OF USKOK IN COORDINATING AND PROSECUTING CORRUPTION IN CROATIA (Diana Pervan, Croatia) ... 54 TOPIC 3 SELECTED KEY CORRUPTION OFFENCES .......................................................................... 63 INVESTIGATING AND PROSECUTING CORRUPTION OF HIGH LEVEL OFFICIALS IN ROMANIA (Cristian Anghel, Romania) ......................................................................................................................................... 63 INVESTIGATING AND PROSECUTING OF FOREIGN BRIBERY (Fabio de Pasquale, Italy) .................................. 68 INVESTIGATING AND PROSECUTING CORRUPTION IN HEALTH SECTOR (Marcello Miller, Brazil) ..................... 74 EXPERIENCE IN INVESTIGATING HIGH LEVEL CORRUPTION IN LATVIA (Rimants Kuzma, Latvia) ..................... 79 TOPIC 4 INDEPENDENCE AND SPECIALISATION OF POLICE AND PROSECUTORS ............................... 83 EFFECTIVE DETECTION AND INVESTIGATION OF CORRUPTION BY A SPECIALISED AND INDEPENDENT ANTI- CORRUPTION BODY (Daumantas Počius, Lithuania) ............................................................................ 83 TOPIC 5 EFFECTIVE ASSET FORFEITURE – FROM TRACING TO EFFECTIVE CONFISCATION.................. 87 EFFECTIVE INVESTIGATION OF ASSETS, PRACTICAL APPLICATION OF MUTUAL LEGAL ASSISTANCE AND ASSET RECOVERY (Phyllis Atkinson, Basel Institute on Governance) ............................................................ 87 TRACING OF ASSETS, FREEZING AND CONFISCATING OF ASSETS IN CRIMINAL PROCEEDINGS IN CORRUPTION CASES INVESTIGATED IN SWITZERLAND (Jean-Bernard Schmid, Switzerland) ..................................................106 TRACING AND CONFISCATING ASSETS GAINED THROUGH CORRUPTION IN UKRAINE (Stanislav Turovskyi, Ukraine) ......................................................................................................................................... 112 WORKING GROUP 1: EFFECTIVE MEANS TO GATHER EVIDENCE IN CORRUPTION CASES .................... 117 WORKING GROUP 2: LAYING CHARGES AND DEFENDING CORRUPTION CASES IN COURT ................... 120 ANNEX 1. SEMINAR AGENDA ............................................................................................................ 124 ANNEX 2. LIST OF PARTICIPANTS ...................................................................................................... 127 3 4 Introduction The expert seminar “Effective Means of Investigation and Prosecution of Corruption” took place from 20 to 22 October 2010 in Bucharest, Romania. This seminar was organised as part of the work programme of the Anti-Corruption Network for Eastern Europe and Central Asia (ACN) of the Organisation for Economic Co-operation and Development (OECD). It was organised by the ACN Secretariat and hosted by the National Anticorruption Directorate (DNA). ACN is a global relations initiative of the OECD Working Group on Bribery. ACN aims to support anti- corruption reforms, promote exchange of experience and elaboration of best practices in fighting corruption in Eastern Europe and Central Asia. ACN operates through general meetings, thematic and analytical activities and sub-regional initiatives. The seminar was hosted by the National Anticorruption Directorate (DNA), the specialized anticorruption prosecution agency of Romania, set up in 2002 and, at present, integrated in the Prosecutor’s Office attached to the High Court of Cassation and Justice. DNA focuses on high and medium level corruption cases and concentrates specialization, training and technical resources in this area. 145 prosecutors, 170 judicial police officers, 55 specialists, as well as 200 auxiliary, administrative and economic personnel are employed by the DNA. During the last 5 years, more than 2700 defendants have been sent to trial and approximately 650 defendants are already convicted with final decisions. Half of the convicted persons are public officials with leading, control or decision positions. The Istanbul Anti-Corruption Action Plan is the main ongoing sub-regional initiative of the ACN. It focuses on reviews of legal and institutional framework to fight corruption, implementation of recommendations and monitoring of their implementation in participating countries through a “peer review”. Since the second round of monitoring under the Istanbul Action Plan equally important as monitoring are a series of “peer learning” activities, mainly training seminars, for practitioners. Since 2001, the ACN has already carried out several thematic and analytical activities in selected areas of anti-corruption reforms. A project on criminalisation of corruption started in 2005 and resulted in a publication “Corruption: A Glossary of International Standards in Criminal Law” and two expert seminars – on International Anti-Corruption Standards in Kiev, Ukraine in February 2005 and Criminalisation of Corruption: Liability of Legal Persons for Corruption, Confiscation of the Tools and Proceeds of Corruption and Mutual Legal Assistance in Corruption-Related Cases in Almaty, Kazakhstan in March 2007. For more information on ACN activities, see the ACN web site www.oecd.org/corrruption/acn. The aim of this expert seminar was to encourage sharing of experience and good practice on investigation and prosecution of corruption and encourage networking of practitioners: investigators, prosecutors and specialised anti-corruption units investigating and prosecuting corruption crimes. The seminar covered the following issues: methods of detection and investigation and prosecution of corruption crimes, experience in investigation of high level corruption, foreign bribery and corruption in health sector, role of independence and specialisation of police and prosecutors and asset tracing, forfeiture and confiscation in corruption cases. 5 This seminar brought together around 50 practitioners from police, prosecution and specialised anti- corruption bodies investigating and prosecuting corruption-related crimes from Eastern European and Central Asian countries and OECD Working Group on Bribery countries. Experts from Basel Institute on Governance, European Partners against Corruption and the Romanian Academic Society also took part. The seminar included a variety of presentations, discussions and work on hypothetical corruption cases in working groups. Presentations were delivered and seminar was moderated by practicing and experienced prosecutors, investigators and anti-corruption experts from OECD Working Group on Bribery countries – Austria, Finland, Germany, Italy, Slovenia, US and Switzerland – and ACN countries – Albania, Croatia, Latvia, Lithuania, Romania and Ukraine – who shared their experience and good practice in investigating and prosecuting corruption. The seminar was made possible thanks to voluntary contributions provided to the ACN by the United States, Switzerland and the United Kingdom. This report contains a summary of discussions, as well as presentations delivered during the seminar, its agenda and list of participants. 6 Summary of Discussions The seminar discussed practical experience of investigators and prosecutors working on corruption cases and tracing assets gained through corruption. Several common issues emerged from the discussion and common challenges faced