Pr?sentation PowerPoint

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• Corporate Liability for committing corruption
• Kiev, 8 February 2013
• Workshop on the implementation of the
  anticorruption legislation
• TAIEX JHA 49058

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Context

• By undermining democratic institutions, curbing
  economic growth and multiplying the spread of
  criminal activities, corruption threatens
  international security and stability.
• Awareness of the international community and
  season of international conventions against
  corruption

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Main international instruments against corruption

• UNCAC (United Nations Convention against
  corruption) 2003 (UNTOC 2000)
• Council of Europe Criminal Law Convention and
  Civil Law Convention on corruption 1999
• (monitoring mechanism GRECO)
• OECD Anti- Bribery Convention 1997 (international
  business transactions)
• EU PFI Convention and protocols

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Provisions on corporate liability
Article 26 UNCAC Liability of legal persons 1.
Each State Party shall adopt such measures as may
be necessary, consistent with its legal
principles, to establish the liability of legal
persons for participation in the offences
established in accordance with this
Convention. 2. Subject to the legal principles of
the State Party, the liability of legal persons
may be criminal, civil or administrative. 3. Such
liability shall be without prejudice to the
criminal liability of the natural persons who
have committed the offences. 4. Each State Party
shall, in particular, ensure that legal persons
held liable in accordance with this article are
subject to effective, proportionate and
dissuasive criminal or non-criminal sanctions,
including monetary sanctions.
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Provisions on corporate liability
Article 18 Corporate liability COE CETS 173
(Ceriminal Law Convention on Corruption)   1.
Each Party shall adopt such legislative and other
measures as may be necessary to ensure that legal
persons can be held liable for the criminal
offences of active bribery, trading in influence
and money laundering established in accordance
with this Convention, committed for their benefit
by any natural person, acting either individually
or as part of an organ of the legal person, who
has a leading position within the legal person,
based on a power of representation of the legal
person or an authority to take decisions on
behalf of the legal person or an authority to
exercise control within the legal person as well
as for involvement of such a natural person as
accessory or instigator in the above-mentioned
offences.  2 Apart from the cases already
provided for in paragraph 1, each Party shall
take the necessary measures to ensure that a
legal person can be held liable where the lack of
supervision or control by a natural person
referred to in paragraph 1 has made possible the
commission of the criminal offences mentioned in
paragraph 1 for the benefit of that legal person
by a natural person under its authority. 3
Liability of a legal person under paragraphs 1
and 2 shall not exclude criminal proceedings
against natural persons who are perpetrators,
instigators of, or accessories to, the criminal
offences mentioned in paragraph 1.
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Background

• Traditional interpretation of the principle
  societas delinquere non potest
• Constitutional problems principle of
  personality of criminal liability
• BUT
• Juridical personality implies juridical liability
• General recognition at international level of
  corporate liability, which may also be criminal
  in accordance with principles of criminal law,
  apart from the need of adaptation of sanctions

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Issues at stake

• Serious and sophisticated crime committed by,
  through or under the cover of legal entities,
  such as companies, corporations or charitable
  organizations.
• Complex corporate structures can effectively
  hide the true ownership, clients or specific
  transactions related to serious crimes and
  corruption
• Complexity of decision-making processes leading
  to corruption

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Different approaches

• Criminal, civil, or administrative responsibility
• Different approaches related to
• the attribution of intent and guilt
• the determination of the degree of collective
  culpability
• the type of proof required for the imposition of
  penalties on corporate entities
• the appropriate sanctions

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International standards
Establishment of corporate liability Parallel
but independent from liability of natural
persons Sanctions must be effective,
proportionate and dissuasive
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International standards - sanctions

• Most frequently used sanction fine(criminal or
  non-criminal)
• Other sanctions
• exclusion from contracting with the Government
  (for example public procurement, aid procurement
  and export credit financing)
• forfeiture, confiscation, restitution, closing
  down of legal entities.

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International standards - sanctions

• Non-monetary sanctions available in some
  jurisdictions
• withdrawal of certain advantages
• suspension of certain rights
• prohibition of certain activities
• publication of the judgment
• appointment of a trustee,
• direct regulation of corporate structures

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Judicial cooperation
MLA (mutual legal assistance)I to be afforded
to the fullest extent possible under relevant
laws, treaties, agreements and arrangements of
the requested State party, in cases where a legal
entity is subject to a criminal, civil or
administrative liability Cooperation for
purposes of confiscation (freezing, seizure,
asset recovery)
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EU relevant policies

• Monitoring implementation of EU instruments by MS
  and promoting ratification of international
  instruments
• Dialogue on Rule of Law and track record of
  implementation and irreversibility of
  anti-corruption reforms (candidate countries,
  ENP)
• Support for strengthening good governance and
  democratisation granted by the EU as part of
  cooperation and development policy including
  anti-corruption policies

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Evidence Council Framework Decision
2008/978/JHA of 18 December 2008 on the European
Evidence Warrant for the purpose of obtaining
objects, documents and data for use in
proceedings in criminal matters Council
Framework Decision 2003/577/JHA of 22 July 2003
on the execution in the European Union of orders
freezing property or evidence, OJ L 196 of 2
August 2003, p. 45 In absentia
judgments Council Framework Decision
2009/299/JHA of 26 February 2009 amending
Framework Decisions 2002/584/JHA, 2005/214/JHA,
2006/783/JHA, 2008/909/JHA and 2008/947/JHA,
thereby enhancing the procedural rights of
persons and fostering the application of the
principle of mutual recognition to decisions
rendered in the absence of the person concerned
at the trial Confiscation Council Framework
Decision 2006/783/JHA of 6 October 2006 on the
application of the principle of mutual
recognition to confiscation orders Convictions
Council Framework Decision 2008/675/JHA of 14
July 2008 on taking account of convictions in the
Member States of the European Union in the course
of new criminal proceedings
THANK YOU FOR YOUR ATTENTION! Questions?
Gualtiero MICHELINI Corte dAppello di
Roma gualtiero.michelini_at_giustizia.it