Anti-corruption legal and

1
Anti-corruption legal and institutional
frameworks in Bulgaria, Moldova, Romania, Russia
and Ukraine
Francesco Checchi, UNDP BRC
2
International legal instrumentsand monitoring
mechanisms

• UN Convention Against Corruption (ratified by
  Bulgaria, Moldova, Romania, Russia, Ukraine)
• CoE Criminal Law Against Corruption ratified by
  all except Ukraine
• CoE Civil Law Against Corruption ratified by all
  except Russia
• OECD Conv. Against Bribery of Public Foreign
  Officials (only Bulgaria)
• GRECO (Group of states Against Corruption)
• OECD Istanbul Action Plan (Ukraine - Moldova)

3
Anti-Corruption Legal Framework

• The UN Convention Against Corruption -
  Substantive criminal law requirements -
• Mandatory offences (Minimum standards)
• Bribery (active passive) of national public
  officials (Art.15)
• Active Bribery of foreign public officials
  officials of public intl organizations (16)
• Embezzlement, misappropriation or other diversion
  of property by public officials (17)
• Money laundering (23)
• Obstruction of justice (25)
• Liability of legal persons (26)
• Participation, Attempt (27)

4
UNCAC - Substantive criminal law requirements

• Non mandatory offences
• Passive Bribery of foreign public officials
  officials of public intl organizations (16)
• Trading in influence (18)
• Abuse of functions (19)
• Illicit enrichment (20)
• Private Sector bribery (21)
• Private sector embezzlement (22)
• Concealment (24)

5
UNCAC - Necessary measures and procedures for
effective law enforcement against corruption

• Law enforcement
• Knowledge, intent, purposes (28) (inferred from
  factual circumstances)
• Statute of limitations (29) (longer)
• Prosecution, adjudication, sanctions (30)
  (immunity jurisdictional privileges)
• (discretionary legal powers presence of
  the defendant removal of public official
• Freezing, seizure, confiscation (31)
• Protection of witnesses, experts, victims (32)
• Protection of Reporting persons (33)
• Consequences (34)
• Compensation (35) (for those who have suffered
  damage)
• Specialized authorities (36) (Body or bodies or
  person)
• Cooperation with law enforcement officials (37)
• Cooperation between national authorities (38)
• Coop. between national authorities and private
  sector (39)
• Bank secrecy (40)
• Criminal record (41)
• Jurisdiction (42)
• Implementation of convention (65)

6
Criminalization of corruption. Bulgaria

• Criminal code
• Section IV. Bribery
• Shall be punished
• An official who accepts a present or any other
  property benefit whatsoever, which is not due, in
  order to perform or not an act on business or
  because he has he has or has not performed such
  an activity (Compare to Art 15 UNCAC)
• Shall be punished
• Who gives a present or any other property
  benefit whatsoever to an official (also foreign
  official) in order to fulfill or not an activity
  related to his office, or because he has
  fulfilled or not such activity, shall be punished
  by imprisonment of up to six years. (Compare to
  Art 15 UNCAC)

7
Bulgaria, Criminal code

• Who promises or proposes a bribe
• An official who requests or agrees to receive a
  bribe
• The punishments shall also be imposed on an
  expert, appointed by a court, establishment,
  enterprise or organisation,
• Who mediates the giving or receiving of a bribe
• Who intentionally creates circumstances or
  conditions in order to provoke offering, giving
  or receiving of a bribe
• Not punished shall be those who has given a
  bribe
• a) if he has been blackmailed by the official or
  by the expert to do that or
• b) if he has informed the authorities
  voluntarily.

8
Moldova, criminal code

• Various corrupted practices are addressed by the
  criminal code. Punishments particularly heavy.
• Issue of corruption is addressed through several
  articles
• Article 324. Passive Corruption also for the
  purpose to obtain distinctions, functions, opened
  markets or other favorable decision by an
  authority
• Article 325. Active corruption
• Article 256. Receiving of illicit remuneration
  from citizens for the performance of works
  related to providing services to people Receiving
  by an worker of an enterprise, institution or
  organization who is not an official person, by
  extortion, of an illicit payment from a citizen
  for the performance of works, for providing
  services in the area of trade, public nutrition,
  social services, public utility, medical
  services, transportation or other public
  services, included in the range of official
  duties of the worker in question

9
Moldova, criminal code

• Article 326. Trading of influence
• Receiving or extorting money, securities, other
  goods or advantages with a real estate character,
  accepting services or promises for goods and
  advantages, personally or through intermediary
  for him or for other person, committed with
  intention by a person who have the influence or
  who support to have such an influence on a public
  servant, for the purpose of making the public
  servant to carry out or to fail to carry out
  actions regarding his professional duties, not
  taking into consideration if these actions were
  committed or not
• Article 327. The abuse of power or of an official
  position
• The deliberate use by an official of his official
  position contrary to the requirements of duty,
  committed for a personal or other low-down
  interest, resulting in substantial harm to the
  public interests ..
• Article 329. Professional Negligence
• The failure of an official to perform his duties
  or inadequate performance of his duties as a
  result of negligent or not conscientious attitude
  towards the duties in question, if resulted in
  damages on a large scale either to the state or
  public interests or to the rights or interests of
  the citizens, which are protected by law.

10
Moldova, criminal code

• Article 330. Receiving of illicit reward by a
  civil servant
• (1) Receiving of an illegitimate reward from
  citizens for performing any actions or providing
  services, which are in the limits of his duties,
  by a servant of the public authorities, other
  institutions, enterprises and state
  organizations, who is not an official..
• The action of taking and giving a bribe are
  identified as criminal offences in the Chapter
  XVI (crimes against services interest of the
  commercial, public and non governmental
  organization) not against individuals.
• Article 243. Money laundering
• (1) Performing legal operations with money or
  other goods, knowingly obtained illegally shall
  be punished by a fine or by jail sentence of
  up to 5 years (ref. art. 23 UNCAC)

11
Romania, criminal code

• Art. 254 Criminalization of corruption bribe
  taking. is punished by 3-12 years imprisonment
  and interdiction of certain rights.
• Art 255. bribe giving the briber is not
  punished if he informs the authorities of his
  deed before the investigation authority is
  announced of the crime.
• Art. 215 Embezzlement
• Appropriation, use or traffic, by a functionary,
  in his own interest or in another persons
  interest, of money, values or other goods that
  he/she administrates or manages, shall be
  punished with imprisonment between 1 year and 15
  years. (art 15 UNCAC mandatory)

12
Romania, Law 78 of May 8th, 2000 on preventing,
discovering and sanctioning of corruption acts

• Offences assimilated to corruption offences
• the establishing, deliberately, of a diminished
  value, compared to the real market value, of the
  goods belonging to the economic agents in which
  the state or an authority of the local public
  administration is a shareholder, committed during
  the privatization activity, the enforcement of a
  judicial decision or the judiciary reorganization
  or liquidation of an economic agent or with the
  occasion of a commercial transaction, or
  (establishing of a diminished value) of the
  goods belonging to public authorities or public
  institutions, committed during a procedure of
  selling these goods, or during the enforcement of
  a judicial decision, committed by the persons
  holding such attributions as management,
  administration, enforcement of judicial
  decisions or judiciary reorganization or
  liquidation of an economic agent
• the granting of subsidies by infringing the law
  provisions, the non-following up, according to
  the law provisions, of the destinations given to
  the subsidies
• the use of the subsidies for other purposes than
  those for which they had been granted, as well as
  the use of the credits that were warranted with
  public funds or that should be reimbursed out of
  public funds.

13
Russia, Criminal code

• Article 290. Bribe-taking
• up to five years, with deprivation to hold
  specified offices or to engage in specified
  activities for a term of up to three years.
• Article 291. Bribe-giving
• Article 285. Abuse of Official Powers
• Use by an official of his powers, contrary to the
  interests of the civil service, if this deed has
  been committed out of mercenary or any other
  personal interests and has involved a substantial
  violation of the rights and lawful interests of
  individuals or organizations, or the
  legally-protected interests of the society or the
  State, shall be punishable by a fine in the
  amount up to 80 thousand roubles, or in the
  amount of the wage or salary, or any other income
  of the convicted person for a period up to six
  months, or by disqualification to hold specified
  offices or to engage in specified activities for
  a term of up to five years, or by arrest for a
  term of four to six months, or by deprivation of
  liberty for a term of up to four years.

14
Russia, Criminal code

• The Laundering of Monetary Funds or Other
  Property Acquired by a Person as a result of an
  Offence Committed by Him
• Making large-scale financial transactions and
  other deals in monetary funds or other property
  acquired by a person as a result of his having
  committed an offence or using these monetary
  funds or other property for the pursuance of
  business or other economic activity -
• ?? See art 19 UNCAC

15
Ukraine, Criminal code

• A369 giving a Bribe
• Art 368 taking a bribe
• A365 Excess of authority or official powers
• "Excess of authority or official powers, i.e.,
  the deliberate commission of acts, by an
  official, which obviously exceed the rights and
  powers vested in him/her, where it caused any
  substantial damage to the legally protected
  rights and interests of individual citizens, or
  state and public interests, or interests of legal
  entities, œ shall be punished

16
Ukraine, Criminal code

• Abuse of authority or office (Article 364)
• "Abuse of authority or office, i.e. a deliberate
  use of authority or official position contrary to
  the official interests by an official for
  mercenary motives or other personal benefit or
  benefit of any third parties, where it caused any
  substantial damage to legally protected rights,
  freedoms and interests of individual citizens, or
  state and public interests, or interests of legal
  entities..
• A 370 provocation of a bribe
• Provocation of a bribe, i.e. an intentional
  creation, by an official, of circumstances and
  conditions that cause the giving or taking of a
  bribe, for the purposes of uncovering those who
  gave or took the bribe, shall be punished with
  the restriction of freedom for a term up to five
  years or with the imprisonment for a term of two
  to five years. The same act committed by a law
  enforcement official, shall be punished with the
  imprisonment for a period of three to seven years

17
Some observations

• Corruption is generally criminalized when it
  involves public sector officials. The Criminal
  Codes establishes the offences of both active and
  passive bribery, abuse of authority is also
  punished but specific offences such as
  embezzlement and trading of influence often are
  not criminalized. Other issue to be addressed is
  the liability of legal persons.
• Some shortages are present for the implementation
  of the manadatory requirements of the UNCAC. A
  lot of work still needs to be done for the
  implementation of the non mandatory offences.
• Criminalization of corruption is present in the
  criminal codes in very different ways.
  Punishments for corruption are also very
  different. The criminalization of the types of
  corruption and the introduction of the
  possibility to punish all the actors involved
  requires more detailed descriptions.
• In some criminal system the same crime is
  addressed through several articles and according
  to different prospectives but this doesnt mean
  that all the elements of the corruption crime
  have been taken into consideration.

18
Anti-corruption specialized law enforcement
agencies

• The international standards set by the 1999
  Council of Europes Criminal Law Convention and
  the 2003 United Nations Convention against
  Corruption require from all countries to ensure
  the existence of a body or bodies that, on one
  hand, establish and disseminate effective
  practices aimed at preventing corruption and, on
  the other hand, combat corruption through law
  enforcement.
• In addition, Council of Europe and the United
  Nations conventions require measures to ensure
  that anti-corruption bodies carry out their
  functions effectively, benefit from the necessary
  independence, adequate training and resources. 
• Bulgaria no specialized body, National Service
  on Combating Organized Crime play the most
  central role in the fight against corruption.
• Russia no specialized body
• Ukraine no specialized body

19
Anti-corruption specialized law enforcement
agencies

• Moldova Center for Combating Economic Crimes and
  Corruption (CCECC), is a specialized institution
  aimed at combating economic crimes and
  corruption. CCECC has a complex system of
  detecting these crimes including gathering and
  elaboration of operative information, carrying
  out inspections, initiation of criminal cases
  etc.
• The Centre was created by merging of following
  units
• Department of Financial-Economic Police,
• Anti-corruption Department of the Ministry of
  Interior,
• Financial Guard and the Department of Financial
  Control and Inspection of the Ministry of
  Finance.
• Purpose optimizing the structure of public
  administration, diminishing the number of
  involved departments and controlling bodies. The
  CCECC assumed the function of prevention and
  combating corruption and economic crime, thus
  decreasing previously over-inflated amount of
  checks and control for economic agents.

20
Moldova Center for Combating Economic Crimes and
Corruption (CCECC)

• Tasks
• Prevention, detection, investigation and
  sanctioning of financial economic and tax crimes
• Actions against corruption and nepotism
• Actions against money laundry and legalizing of
  material assets acquired illegally.

21
Anti-corruption specialized law enforcement
agencies

• Romania National Anti-corruption directorate
  (NAD)
• The NAD is a structure with legal personality,
  within the framework of the Prosecutors Office
  attached to the High Court of Cassation and
  Justice (GPO).
• Independence The NAD is independent in its
  relationship with the courts of justice and the
  prosecutors offices attached to these, as well
  as in its relationship with the other public
  authorities.

22
National Anti-corruption directorate (NAD)

• The attributions carrying out criminal
  investigations according to the Criminal
  Procedural Code and relative legislation
• (The offences provided in the Law no.78/2000 for
  preventing, discovering and sanctioning
  corruption deeds, fall under the competence of
  the NAD, when
• (a) offences caused a material damage greater
  than the equivalent to 200, 000 EUROS, or a
  particularly serious perturbation was brought to
  the activity of a public authority, public
  institution or any other legal person.
• b) these offences are committed by deputies,
  senators, Governments members, state
  secretaries, the counselors of the ministersetc

23
NAD

• Procedural provision The services and structures
  specialized in collecting and processing
  information shall have the obligation to
  immediately put at the disposal of the National
  Anticorruption Directorate the data and
  information they hold in connection with the
  commission of corruption offences.
• The National Anticorruption Directorate is
  authorized to have and to use adequate means to
  obtain, verify, process and store the information
  regarding the corruption offences
• Investigative means the following measures can
  be disposed, in order to collect evidence and to
  identify the perpetrator
• a) the surveillance of the bank accounts and the
  accounts assimilated to these
• b) the surveillance or interception of the
  communications
• c) the access to the IT systems.
• .for a duration of maximum 30 days.
• The banking secret and the professional one,
  except for the lawyers professional secret,
  shall not be opposable for the prosecutors

24
NAD

• Funding Financing the current and capital
  expenses of the National Anticorruption
  Directorate is ensured from the state budget.
• Staff is formed of prosecutors, judicial police
  officers and agents, experts in the economic,
  financial, banking, customs, IT field and also in
  other fields, special auxiliary personnel, as
  well as economic and administrative personnel
  Judicial police officers work within NAD with the
  purpose of carrying out with celerity the
  activities of discovering and investigating the
  corruption offences. Experts of high
  qualification in the economic, financial,
  banking, customs, IT fields, as well as in other
  fields, are appointed within the framework of the
  NAD
• International Cooperation With a view to a
  mutual consultation regarding the offences under
  the competence of the National Anticorruption
  Directorate and to a data and information
  exchange regarding the investigation and
  prosecution of such offences, a liaison office
  with similar institutions from other states is
  set up.