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NATIONAL REPORT

FOR

PORTUGAL

By Dr. Arturo VICTORIA, President of the PortugueselBrasilian Law Institute and Consultant on Financial Development and Corruption at Porto University

1. The organisation of the fight against corruption on the national level

a. General Policy

Portugal in 1974 had a complete change in the political situation, deteriorated by a dictatorship of more than 30 years with a corporative system, a neutral position in W.W. II following a economic policy of restriction on public expenses, mostly affected to education, agriculture and public buildings construction e.g. schools, courts, roads. In the sixties there was a deep distance between Portuguese economy - poor - and European development.

Then, the colonies Angola, with its potential production of oil and diamonds and Mozambique, with a strategic position in Africa, started looking for their own independence, assuming a guerrilla war against Portugal that last for more than 15 years. After a take-over of the military the democratic regime was implanted with a new National. Constitution, followed by a period of provisional governments with communist, socialist,social democratic and christian democratic political parties.

In the 80,s Portugal was compromised to assume a position on the E.E.C. starting governmental international negotiations. The economic status was slowly improving, many nationalised companies were predicted to become private, the stock market was reborning and stability was establish. The standard individual income was improving and democratic process completed with elections.

It was necessary to reform not only and economic development policy but also a new legal system in order to face the new social realities but also to start modernisation of public administration.

The Parliament in 06.10.83 created the High Authority Against Corruption considering: " - the need of an independent organism, to affect experimented human resources in a commission work, to start getting computer access and organise databases of files and to get a quick reaction to the demands. - the competence of the High Authority is to prevent, to investigate, to present in the competent organisms the petition in order to proceed the criminal and disciplinary cases of corruption and fraud acts in the central, regional, local public servants, Government, Armed Forces, public companies or where public money was invested."

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There was books and conferences promoted by this High Authority e.g.

Society and Corruption, by Barbosa de Melo; Economy and Corruption, by Silva Lopes; State and Corruption, by Nunes da Silva; Corruption and public opinion, by Mario Mesquita; Corruption and Criminal Law, by Figueiredo Dias; The Justice and the Corruption, bySouto Moura; Corruption and the Democracy, by Rui Manchete; Fighting Corruption - Prevention and Strategies, by J.Gardiner and K.Malec.

After nine years of work 1983/92 there was more than 3.000 cases which:

22,5% were not admitted because they were out of competence; 7% were finish because they did not have evidences; 12,5% were transferred to other entities;

The remaining 58% of cases:

14.5% were sent to other organisms to proceed; 14,5% were sent to criminal court; 22% started with disciplinary sanctions; 2% were made recommendations to new legislation.

In ill July 1992 the Parliament with the unanimous vote of all political parties decided to finish with this High Authority and to seal and keep secret the cases for 20 years kept in the National Documentation Archive.

The reasons :

during this nine years to social and economical conditions of Portuguese society changed ,there was various legislation meanwhile , new departments of Public Attorney , Police , Courts, Inspections and others organisms of Control. Portugal becoming a member of E.U. had a major reductions of risk and dangerous areas connected with free circulation of persons and goods. A political good will to start a Transparent , Impartial State of Democracy in Public Administration.

Today General Policy

In 1999 the President of Parliament said "Corruption is not a problem. Is a fact of history that has no place in modem societies like Portugal".

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Today's Portuguese general policy is not to worry about corruption, more, is bad to talk about corruption because politically Portugal is a Transparent Society and the Nation does not admit corruption in this "Status". Corruption brings unsafety to people, to companies, and Police takes care of this unhappy cases and let the Court to decide.

Also the media does not notice corruption as the journalists are prosecuted to be injourious. Is not a good deal for TV and newspapers. At the end to study and deal with this phenomena is only competence of the Public Inspections or Justice Departments.

The Law

Law 4/83 -Control of wealth of political occupations with an annual income declaration; Law 34/87 - Punish with prison from 2 to 8 years corruption made by politicians; Law9/90 - Become incompatible political occupations with private businesses; Dec-Law 390190 - clarifies corruption on sports, mainly football. Law 72193 - About financing political parties; Law 23/94 - Creates a anti - corruption department on the Police; Law 24/95 - About members of Parliament share holders of companies; Law 25/95 - new measures to control of wealth of politics; Law 27/95 - About financing Elections campaigns; Law 28/95 - Transparency pack - makes a record of private interest of members of Parliament ruled by an Ethic Commission; Dec-Law 23/96 - Creates the General Inspection of City councils, and public servants; Law 12/96 - Transparency - about politicians having several jobs.

Courts

The Portuguese Constitution: The Courts are sovereign and have the power to make justice in the name of the People; The Courts are Indepents are are restricted to the Law; The Judges can not be transferred of place , suspended, or fired; The Judges do not have any responsibility in their free decisions.

b. Statistics

There are no official records or private studies that allows a complete study of data and make precision and credible statistics.

The only sources are court condemnations and disciplinary punishment in public servants. This means that very slow justice and frequent amnesties - medium every two years - makes a completely wrong perception of the extend of corruption in Portugal. Very important is that the favour exchanges are not considered by law a crime. There are ways to get a clear perception on degree of corruption in the following areas:

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European funds - the reports of inspectors are denied or not exist. There are a strong help from private Banks that cover the co-financing project. Sectorial activity Associations manages the governmental inspection, provide the plans, materials for the investment.

Public construction - the opponents to the advertised work have to pay for the rules. Usually make a new company - consortium - or deal eachother to pay to leave. The final price is always updated with unexpected budgets. The materials are not accordingly the standard of quality and labour is provided illegally by underpaid emigrants without workpermit. Actually in Portugal works more than 100.000 illegal Africans, with political and governmental tolerance.

Money laundry and taxes fraud Provided by Banks that operate in Madeira Island offshore. This provides money to bribe in businesses in Angola and Mozambique by Portuguese companies, connected with foreign interests.

Private Investment Banks through credit and lease operations become annually in a negative result of recovered payments , underneath bank managers favour approvals of credit, and hundreds of bankrupted companIes.

Bureaucratic Administration In Health, Taxes inspections and Courts we can find public servants showing evidences of unexpected wealth mainly new houses and cars.

Police Dealing in drugs, criminals are arrested. The quantity of drugs and money captured are delivered in court in small amounts. Due to low salary they use to do extra jobs like personal security or private investigations on private demand.

Politics Owners of companies do not present the income declaration. They have jobs in public companies in order to get benefits and party funds raising.

Education Final evaluations of students do not fit their regular work. Private teaching having benefits of official inspections.

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Health Expenses not clearly justified. Few Audits. Agreements between Social Security, Insurance companies, Doctors and medical drugs suppliers.

Justice Due to the existence of many lawyers there is 1200 applicants for a vacancy of 90 students by year to go to a 18 month course for Judge. Frequent cases of Judges drugs or alcohol dependents. Public attorneys placed in every ministry by nomination of the General Prosecutor. Show off unexpected wealth. Frequent agreements with lawyers offices and many prosecutors and Judges under licence to practice the bar.

Public opinion Very poor because there are no information elements. Afraid to express an OpInIOn about corruption or even to participate it to authorities, as they are involved. The Law does not admit a whisper complaint for identity protection.

Is possible to establish links between organised crime - money laundering - corruption, estimating a participation of 50% of the population being soft, in exchange of not being disturbed in their taxes and missing income declarations. The medium salary is U.S 500. a month minus taxes. Also contributes for complicity the growing missing of personal and family security.

c. Repressive legislation

Introduction

In Portugal the Criminal "Code" has been written in 1882 and it last till a new one in 1982 which was replaced in 1995.However the concepts of "crime" remained the same, hold to a historical tradition. The actual legal concept of "corruption" is in the "Codigo Penal " systematised on the Chapter -Crimes committed being a public servant - articles 3720 remains as the request or accept for himself or another person in a direct or indirect way, an advantage with any kind of reward, or promising with a profit to do an act or omission against his duties as a public servant will incur in a prison sentence from 1 to 8 years-. This crime has a second effect as in the Disciplinary Statue of public servants any criminal accusation will give place to an inquiry by his services, that will run independent of court. Is an administrative procedure which last sentence can be given by the Supreme Administrative Court as the appeal of criminal sentences are for the Supreme Court of Justice. In that Code the article 3730 defines that the public servant is the "passive corrupter" and in the next 3740 call "active corrupter" to the one that made the request. Just in the Chapter that comes before in the Code, - Crimes against the Justice" is defined as a criminal act of bribery the promise money or favours to a witness or expert to go on court to

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convince the Judge with facts that are not true, incurring in a punishment of a fine or prison till 2 years.

In the legal framework corruption or bribery comes as a secondary crime with an main administrative effect and punishment, getting away the citizen or society - the "passive corrupter " - involving always a public servant - "the active corrupter "-.

We can show how slight is the importance of punishment in corruption crime by the appeal cases - data provided by the database of Justice Ministry -

Supreme Court Appeal Court of Porto and Lisboa

1988- 5 1989- 2 1990- 5 1991- 3 1992- 2 1993- 5 1994- 1 1995- 5 1996- 2 1997- 6 1998- 6

Changing the Law

1 2 3 7 8 2 7 4 2 1 3

In 1994 Portugal going to U.E. started appearing fresh money from European developing programs, with a old legal repressive system not able to stop the temptation of an society thirty years late behind Europe.

The first Law called "Ways to fight corruption and Economical- Financial criminality - came from the Parliament as Law 36/94 - September 29 tho Here there was a definition of who and what. The Public Attorney -"Ministerio Publico" - and the Police - "Policia Judiciaria" - have to prevent and fight with the help of the new Department of Ministery of Justice called - "Direcyao Geral para 0 combate a corrupyao , fraude e infracyoes economicas e financeiras " - the crimes of:

Corruption and economical association of people in businesses; Bad administration of companies belonging to public sector; Fraud gaining or making disappear subsidises , subventions or credits; Economics and financial infractions done in an organised way , using computer technology; Economics and financial infractions done in an international or transnational association.

In December 1995 came the Law n0325/95 about money laundry, as crime was growing by the preparing return of Chinese with Portuguese passport from Macau - Chinese territory under

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Portuguese administration till 1999, where gambling, prostitution and organised crime were the main economic activity. This law was reviewed in September the 2th of 1998 by the Law n° 65/98. By the first time in Portuguese Law history the crime of transferring and conversion. of money coming from terrorist acts , arms dealing, extortion, kidnap, traffic of children or persons and corruption, would be punished by Portuguese courts if the main acts were done outside national territory.

Due to the free transit of European citizens in 8th August 98 the Law nO 244/98 allows to expulse foreign citizens by national security reasons, by offending the Portuguese moral and habits or for being convicted by a Portuguese court.

Finally in July the 10th of 1999 because there was lots of news of high corruption in Public events like EXPO 98 and public companies president demission because they could not control fraud and corruption the Parliament made the Law 90/99 that in an amendment to the Law 36/94 made a exception to the agents that:

commit corruption on the demand of the public servant; reported the crime within 30 days; has a relevant contribution to discover the facts;

Trading of influences is not considered a crime.

Preventing laws

There are no direct prevention laws for corruption. The legislator says the best way to prevent is the pardon to the one that reports within 30 days or co-operates with the authorities as mentioned in the above Laws. Other way of preventing is to legislate on matters that can discourage, but without a practical impact, because courts are ineffective.

In Public sector there is a court called "Tribunal de Contas " supervised by the Finance and tax Ministry that does a previous approval of all acts that involves public money, since the nomination of a public servant to the expenses of a building project and all the public companies, government, city councils are submitted. That "Court" does after the audit of expenses and can give a non after approval as in many happens, without specific consequences.

In private sector is allowed the companies to have "confidential" expenses tax deductible till certain amount. There are no laws concerning corruption between to private persons or companies, and usually when crimes are committed they are typified as crimes of fraud, offences to others, it depends on the extend of corruption.

Between privates the only prevention laws are the tax declarations and the possibility of suspicion on owning objects without declaring incomes.

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In 1999 the Portuguese Bar Association - created by Parliament authorisation - declared that agreements between lawyers to make damages to their clients with exchange favours, was permitted.

Actually due to preventive Laws in most of countries ,Portugal is considered in E.U. like a paradise to multinational companies to corrupt governments on Help Funds Programs and investments ofE.U. from countries where there is a very restrictive law on corruption.

Corruption and Fraud

Heidenheimer's study on corruption departs from legalistic approaches and suggests a typology based upon three stages of public condemnation: - white, - grey and black. According to this typology , some practices - behaviours , collusive and subject to penal condemnation, do not attract the sympathy of political elites, nor the complacency of the population at large - BLACK CORRUPTION -.In this case, existing standards, mostly legally based, are reinstalled by competent authorities when infringement takes place. But the problem of condemnation also exists in the identification of the violation. Corruption, occurs and develops in obscurity. The likelihood that a certain illicit practise or behaviour will be exposed, or better, the determination and efficiency of competing authorities to combat it has to measure strength against the ability and motivation of wrongdoers to avoid being exposed. The difficult battle of transparency, then, comes face to face with it's worst enemy -public tolerance - indifference, or even complicity, in a context where illicit behaviour has expanded pervasively at all levels of decision making and sectors of society. When infringement is widely tolerated - WHITE CORRUPTION - legal condemnation loses its meaning. Its rather the GREYNESS CORRUPTION that promotes the demand for reform in the system, because existing standards are no longer seen operational, either by political elites themselves or sectors of the population. The wave of Reforms take place in Portugal by the late 1980 and early 1990 can only be understood by the light of a significant value discrepancy between ruling elites and masses. The way that different spheres of control have reacted , and the norm - values -upheld by measures implemented , form the output of a process where standards are challenged and revised. Subsequently, control measures and reactions are subject to further environmental response - feedback loop. Revision will still occur where there is still a discrepancy between elite - legal/formal - and public - social/cultural - , standards in relation to existing structures off opportunity for corruption.

Law sanctions as corruption the illicit on public service; Sanctions in private life can be always punished like fraud;

The effects are different, jail for the first, the payment of a fine for the other. The legal concept for corruption is strict but for fraud it's application is generally by tax evasion. Criminal effects for Fraud demands usually both concepts - taxes and loss for someone.

In a very recent law the condemn for passive corruption was more severe on the behalf of active corruption that had legal benefits.

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Only nationals, living in Portugal can be condemned as individuals. The territorial scope is the national country. This consequences brings Portugal like a paradise to bribers in businesses with Angola and Mozambique. Nevertheless Portugal signed in Paris the OECD convention 3 years ago, only now was ratified by the Parliament. Meanwhile no law projects where presented and it was very recently formed a commission in the Parliament to discuss the implementation of the Convention. The population is not informed about the Convention and its benefits for Portugal, as politics doesn't seem very persuaded to carry a deep implementation.

In a brief conclusion to the legal framework some actual examples: the leader of a political party was accused of bribery from a German constructor and the media gave big attention. Immediately a leader from opposition was accused of fraud in healthcare. A cabinet Minister was accused from using E.U. money for his farm and immediately a former Minister from opposition was accused of bribes in the construction of public roads. An individual start a case against the Portuguese state by slow Justice administration but lost the plea because the State proved not to have enough money to a quicker Justice in Court.

In Portugal in last year there was no condemns in court of justice for any case of corruption. Officially is admitted that corruption in a small grade is not punished because is part of education. In this national situation people are afraid of getting help for extortion of money, supposely named corruption.

d. Preventive measures

Allow civil society to intervene in private and public life as surveyors of building contracts, foreign investments, activities of the commissions in the Parliament, essential non transparent events in banks and insurance and in election campaigns funds raising. Teach the children in school about what is corruption. - in a national survey 100 children 8/18 years old none knows the meaning or consequences ofthe word. Audit Justice, health, finances, labour employees, with civil nominations non political. Allow protection for victims - whistleblowers-Promote intellectual debates and conferences. Exist an international organisation in E.U. with power to receive analyses and recommend the Portuguese State to make the existing Law effective and the competent institutions work well and quick. new Law about favours exchange, and consider the right to the citizens to fight corruption.

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None of these measures exist because Politics say that corruption doesn't exist and there is no priority to prevent.

e. Structures

In Portugal the only service to fight corruption is the department of police that has two specialist. Like referred all the persons that worked in the High Authority Against Corruption were dismissed 8 years ago most of them now Public attorneys.

There is a private association - Instituto Juridico Luso Brasileiro - that studies with Brazil measures to prevent corruption and there is a forming Chapter of Transparency International. There was a private and humanitarian help phone line "Say no to Corruption" closed by the Justice Minister with the argument that the Ministry was the only one that could held such a servIce.

2. International co-operation regardin,g Corruption

a. Supply

Portugal can offer international co-operation in full way ifthere is a political will. The person that is in charge is the General Republic Attorney - Procurador Geral da Republica - address Rua da Escola Politecnica, Lisboa.Anyone can apply by letter. There are a Delegation in Porto - Palacio da Justiya - Campo Martires da Patria, Porto, and another in Coimbra also in Procuradoria Distrital da Republica - Palacio da Justiya, Coimbra. The applicant can be any nationality and can do any request written. The possible obstacle is that the request goes to a deputy of the Attorney that is not well acquainted with his job or have delays in the bureaucratic distribution. Is advisable to sent two ways request, one to the Procurador Geral da Republica and another to the Pocurador Distrital da Republica and get a phone contact with his Secretary.

b. Demand

The main expectation when requesting co-operation from another country is that the request doesn't go to the hands of a corrupt. Second, to get a clear, objective and proper reply, with respect for the secret of an eventual criminal investigation on that.

The Procurador Geral da Republica is nominated by the President of Republic. Is a nomination job, usually is a Judge or Attorney and nominates all his team in whole country.

Till the moment there is no complains about his exemption and independence nevertheless is a political nomination.

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At the moment the problems were resumed and they are a matter of Portugal to be in the E.U and must be convinced by the Nations about what is a Global Policy and a European Union Policy.

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NATIONAL REPORT

FOR

SWEDEN

By Jan OLANDER, Consultant, former Ambassador, former President Europe 2000, former Policy Adviser Swedish National Police Board

1. The organisation of the fight against corruption on the national level

a. General policy

a.1. What general policy does your country have towards corruption?

Sweden's policy against corruption is to fight this phenomenon with all means. The general attitude mnong the citizens towards corruption is a negative one. Compared with other countries Sweden, together with the other Nordic countries, ranks high on the corruption perception index of Transparency International. In the 1999 survey Sweden shared third place with New Zealand and came only after Denmark and Finland.

Regardless of this there is of course corruption in the Swedish society. Over the last decade or so many local politicians have been discovered having misused public means and authority. The media have been instrumental in detecting these crimes and a number of these politicians have been sentenced to fines and have had to resign.

The Swedish policy against corruption focuses both on preventive and repressive measures. Corruption and bribery is a crime and is dealt with in the Penal Code. (See annexe)

a.2. Do you consider this policy satisfactory or not? If not, in your opinion what are the main deficiencies?

The policy is considered to be satisfactory. Getting a person sentenced for corruption crimes is, however, not easy as it is often very difficult to prove that such a crime has been committed.

b. Statistics

b.1. To what extent and from which sources are statistical data available concerning:

- corruption - international co-operation in corruption cases

the link between corruption and organised crime the link between corruption and money laundering?

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In Sweden there is no general source of statistics for corruption. Several authorities have some statistics, such as the Council for Crime Prevention, the Swedish Criminal Police, the Ministry of Justice, the Finance Police (part of the Criminal Police) and the Economic Crimes Bureau ( a public prosecution authority with specific responsibility to combat economic crime ). The cases of corruption are by experience very few.

Some statistics from the Council for Crime Prevention are enclosed.

It is a fact that corruption and organised crime/money laundering are closely connected. But it is difficult to make any assessments about the sums involved. There seems to be general agreement among international experts that huge sums are involved and that organised crime uses a large proportion of its income to corrupt influential members ofthe society in order to further its interests ..

b.2. Can you provide these data? If they are not available, can you make an estimation?

Apart from the above-mentioned statistics it has not been possible to obtain statistics.

It goes without saying that it is very difficult to make a full estimation concerning the subjects mentioned under this heading of the questionnaire.

c. Repressive legislation

c.l. Which types of behaviour can be sanctioned as forms of corruption (bribery, trading in influence .. )? Active and/or passive corruption? In the public and/or private sector?

Both active and passive corruption in the public and private sector can be santioned and this covers acts like bribery and trading in influence.

c.2. Are those legal provisions only applicable if nationals are corrupted or is their scope of application more extensive ( foreigners, members of international organisations.) ?

The pertinent legal provisions have an extensive application and cover nationals, foreigners, international employees etc.

Chapter 2 of the Penal Code deals with the applicability of Swedish law. A copy of the Chapter is enclosed.

c.3. Which sanctions can be imposed (imprisonment, fine, confiscation measures, deprivation of rights, administrative sanctions, blacklisting)?

Imprisonment, fines, confiscation of assets, deprivation of rights, blacklisting may be imposed according to the Penal Code.

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cA. To whom are these legal provisions applicable (physical persons and/or legal persons?

The legal provisions are applicable to both physical and legal persons. Company fines can be imposed.

c.S. What are the territorial scope of application of the provisions?

The provisions have a wide application.

See above under c 2 regarding the applicability of Swedish law.

c.6. Does the law contain particular provisions relating to the burden of proof in corruption cases (reversal, division, protection of whistle blowers)?

The same rules of proof as are applicable to other crimes are applied to corruption cases. Whistleblowers are protected by the constitutional right of speech, by the right to inform and by labour legal provisions forbidding firing of an employee without legal grounds.

c. 7. Do you consider this legislative framework satisfactory? If not, in your opinion what are the main problems?

Sweden considers the present legislative framework satisfactory.

d. Preventive measures

d.l. What kind of preventive measures exist in your country (auditing standards, financial disclosure obligations, codes of conduct)?

A number of preventive measures exist.

The Bookkeeping Act, the Annual Accounts Act and the Penal Code contain rules of importance in this context.

Regulations about maintaining and preserving bookkeeeping are found in the Bookkeeeping Act, which stipulates that, for the purpose of providing information about the course of operations, business transactions are to be currently recorded in a chronological and systematic manner and receipts/vouchers must be available to support all accounting entries. Annual accounts are to be drawn up at the end of the financial year for the purpose of providing information about the results and financial position of the operations. A person who intentionally or through carelessness neglects the obligations of the Bookkeeping Act can be sentenced for bookkeeping crime or, in lesser cases, for obstructing tax control.

All limited companies are to be audited according to the Annual Accounts Act. Partnership, and limited partnerships are also subject to auditing to the extent that they follow the Annual Accounts Act. An auditor must be appointed if the number of employees exceeds ten.

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Economic associations shall also appoint at least one auditor according to the Associations Act.

Members of the Governments have to disclose their financial situation. Members of Parliament should do the same but here the obligation is not compulsory. There are also supervision in the public sector, executed by the Parliamentary ombudsman,the Chancellor of Justice and the Swedish National Audit Office.

The Stockholm Chamber of Commerce and its Institute against Bribes have adopted a special Code of Conduct against bribes which gives recommendations to companies how to behave.

d.2. Do you consider this legislative framework satisfactory? If not, in your opinion what are the main deficiencies?

The present legislative framework is considered satisfactory

e. Structures

e.l. Has your country established specialised services, specifically assigned with the combat against corruption? If so, what is the institutional context, the composition,the functions and the powers of these services?

There is no specialised services in Sweden to combat corruption. Corruption is considered as a crime and therefore dealt with as any other crime. There are of course specially trained and experienced police officers and prosecutors, who deal with corruption cases both within the general law enforcement organisation and as part of the Economic Crimes Bureau (ECB) The ECB may also deal with suspected cases of corruption which touch the European Union sphere.

e.2. Do you consider this structural framework satisfactory? If not, in your opinion what are the main problems?

The structural framework is considered satisfactory.

2. International cooperation regarding corruption

a. Snpply

a.I. To what extent can your country offer international co-operation in corruption cases ( exchange of police information, mutual assistance in criminal matters, extradition )?

Sweden can offer international co-operation in criminal cases including corruption. An agreement is not necessary for providing mutual legal assistance. Sweden has ratified -the 1959 European Convention on Nutual Assistance in Criminal Matters -the 1979 Additional Protocol to the 1959 Convention

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-the 1990 European Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime -the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. -the OECD Convention on Conbating Bribery of Foreign Public Officials in International Busines Transactions -the 1997 European Union Convention on the fight against corruption.

There are also special agreements between the Nordic countries, in several case implying simplified procedures and fewer conditions for legal assistance. Bilateral agreements on mutual assistance in criminal matters have also been concluded with Hungary (1983) and Poland (1989) and on restraint and confiscation of proceeds of crime with United Kingdom of Great Britain and Northern Ireland (1989).

The various conventions are incorporated into Swedish law by legislation and are not applied directly. This legislation is applicable without any reciprocity requirement. This is the case as regards the entire area that falls under the heading mutual legal assistance (taking of evidence, questioning during preliminary investigation, transfer of a person in custody, service of documents and the use of coercive measures in connection with criminal Investigations).

The Swedish legislation concerning mutual legal assistance in criminal matters was to be found in a number of laws and regulations. In order to be able to assist in as many cases as possible the rules have been put into a new law on International Legal Assistance in Criminal Matters (Law 2000:562) which entered into force on 1 October 2000. The underlying principle of the law is that the Swedish authorities should be able to execute the same measures internationally as in domestic cases.

The new Swedish Law is enclosed.

The law containing conditions for providing extradition (the 1957 Extradition for Criminal Offences Act, 1957:668)is also enclosed. The law contains additional requirements. Ifthe limitation period according to Chapter 35 of the Penal Code has run out the extradition can not be granted. Furthermore an extradition can not be granted for a political offence, nor of a person who, on account of his origin, membership of a social group, religious or political views or otherwise on account of political conditions runs the risk in the foreign state of being subjected to persecution aimed at his life or liberty.

An extradition agreement is not required. In addition to being a signatory to the European Convention on Extradition, Sweden has bilateral agreements with the United States of America, Canada and Australia, the reason being that these countries have a requirement for reciprocity.

a.2. Who should the applicant apply to (which authority, person in charge at this instant, address, phone and fax number)? On which conditions and in which form?

A request for legal assistance in Sweden may be made by a foreign prosecutor, investigating judge, another judge or court or by some person empowered to make such a request according to an international agreement that is binding on Sweden.

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Legal assistance shall according to the Swedish law be provided subject to the prerequisites applicable to a corresponding measure during a Swedish preliminary investigation or trial in accordance with the Code of Judicial Procedure or other statute or enactment and in accordance with special provisions in the law. In certain cases legal assistance may be provided even if the act to which the request relates does not correspond to an offence according to Swedish law. (The requirement of dual criminality.)

A request for legal assistance shall be refused if execution of the request would violate Sweden's sovereignty, involve a risk to national security or conflict with Sweden's general principles of law or other essential interests. A request may also be refused if the act is in the nature of a political offence, comprises a military offence, unless the act also corresponds to another offence under Swedish law that is not a military offence, a judgement or decision on waiver of prosecution concerning the act has been issued in Sweden or the circumstances are otherwise such that the request should not be granted.

Chapter 4 of the law contains rules concerning the transfer of a person in custody to a foreign state for questioning or confrontation. The questioning must not concern the criminality of the person concerned. The request may be denied if it refers to a political or military offence. - A request shall be submitted to the Ministry of Justice. The decision to transfer a person to a foreign state is taken by the Government. A request from a State member of the European Union or from Iceland or Norway is considered by a prosecutor.

Chapter 5 of the Act contains provisions on the immunity of witnesses, who in accordance with an international agreement come to Sweden to be questioned or to participate in some other way in a criminal investigation.

Property may be seized and handed over to the requesting state if the property can be assumed to be

of significance to the investigation of an offence or deprived from some person by means of an offence or confiscated on account of an offence. A special condition in the latter case is that the .. property could have been confiscated under Swedish law and that there are special reasons for handing over the property to the foreign state.

In the above-mentioned Act provisions on search of premises are found. In order to search for property that are subject to seizure, premises may be searched under the same conditions as in domestic cases. The same conditions and restrictions that apply to seizure are applicable to search of premises.

If judgment has been issued in the foreign state, a copy of the judgment shall be annexed to the request for provisional attachment or seizure. A request for seizure shall, when appropriate, contain inforination about when prosecution will be instituted or a judgment can be issued in the requesting state. A request is executed by a prosecutor, who immediately shall consider whether the prerequisites of the measure exist and in such case hand over the request to the court for decision. The court shall consider whether the seizure is lawfully founded and whether the property shall be transferred to the requesting state. The court decision is executed by the prosecutor.

Service of documents at the request of a foreign authority is executed either by the Ministry of Justice or by a county administrative board in accordance with the Decree concerning Service

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of Documents at the Request of a Foreign Authority. In practice the Ministry of Justice deals with service of documents in most cases. The county administrative boards deal with requests for service of documents from other Nordic countries. The provisions on service of documents applicable to domestic cases apply in principle to the execution of service of documents at the request of a foreign authority. However, measures will be taken if possible, to meet a request for a different procedure.

Sweden can provide mutual legal assistance in relation to criminal proceedings against a legal person. The general conditions for mutual legal assistance mentioned above must however be fulfilled.

From 1 October 2000 the Central Authority for international judicial co-operation has moved from the Ministry for Foreign Affairs to the Ministry of Justice. The requirement that requests to and from Sweden must go through diplomatic channels has been removed.

The Central Authority receives, examines and forwards requests to and from Sweden in matters including international legal assistance in criminal matters, extradition, transfer of enforcement of sentence and proceedings, service of documents in criminal and civil cases and taking of evidence in civil and commercial matters.

Matters concerning child abduction, recognition and enforcement of decisions concerning child custody and restoration of custody of children continue, however, to be dealt with by the Ministry for Foreign Affairs.

The Central authority is a part of the Ministry of Justice Division for Criminal Cases and International Judicial Co-operation, which is a result of a merger of certain parts of the Ministry for Foreign Affairs Department for International Legal Assistance and Consular Affairs and the Ministry of Justice Division for Matters in Criminal Cases. This means a concentration of Government Office resources and competence.

a.3. Which particularities should the applicant be aware of when requesting co­operation from your country?

All requests for legal assitance must be made in writing and shall be in Swedish, unless agreed otherwise by the Swedish authorities concerned.

a.4. Which (legal and factual) obstacles do, in your opinion, hamper an efficient co­operation in practice (bank secrecy, double incrimination, language, policy priorities )1. Which practical remedies can you suggest?

Information from banks can formally be collected via the rules on questioning persons or search of premises. However, banks normally provide the information voluntarily upon request from the public prosecutor. A formal decision to question a bank official or to search bank premises is almost never needed. The rules on bank secrecy are suspended when a preliminary investigation has been initiated. In addition, the rules on bank secrecy do not prohibit the banks from providing infonnation in connection with a reported criminal offence.

7

Even though a criminal investigation has not been initiated the banks are obliged, according to the Statute on Money Laundering (SFS 1993:768), to supply the police of information subject to bank secrecy with regard to all circumstances which are indicative of point towards money laundering. The banks are also obliged to answer any questions from the police in connection with such information.

There are no special provisions on bank secrecy with regard to international requests for· mutual legal assistance. In practice, the system used in domestic cases is applied.

Pursuant to the Act concerning the Use of Certain Coercive Measures at the Request of a Foreign State the provisions of Chapter 27 section 2 of the Code of Judicial Procedure shall be applied when a decision on seizure is taken pursuant to the provisions of that act.

Pursuant to Chapter 27 section 2 of the Code of Judicial Procedure, if it can be assumed that a document contains information that an official or other person may not disclose under testimony under Chapter 36 section 5, the document may not be seized from the possession of that person or the person who is owed the duty of confidentiality. Nor may from the suspected person or his relative, as defined in Chapter 36 section 3, written communications between the suspect and his relative or between such relatives be seized, except if the issue concerns an offence in respect of which a less severe penalty than imprisonment for two years is not prescribed. (SFS 1964:166)

According to Chapter 36 section 5 of the Code advocates, physicians, dentists, midwives, trained nurses, psychologists, psychotherapists, officers at family guidance offices under the Social Services Act (1980:620) for example may not testify concerning matters entrusted to, or found out by them in their professional capacity unless the examination is authorized by law or is consented to by the person for whose benefit the duty of secrecy is imposed. Persons pursuant to the Secrecy Act, Chapter 9 section 4 may not provide the information therein referred to, may be heard as a witness concerning that information only if authorized by law or the person for whose benefit the duty of secrecy is imposed consents thereto.

Attorneys, counselor defense counsel may be heard as a witness concerning matters entrusted to them in the performance of their assignment only if the party gives consent.

b. Demand

b.2 and b.3. To what extent are these expectations met? Which are the main problems and how can these be solved?

An international requesting party must formulate the request well and cover many things. Often differencies in legal culture and legal systems result in the fact that expectations are not met. International discussions are going on to simplify the procedures, especially within the European Union and the Baltic Sea area.

8

Annex 1

Swedish Penal Code

Chapter 17 section 7

A person who gives, promises or offers a bribe or other improper reward to an employee or other person defined in Chapter 20, section 2 for the exercise of official duties, shall be sentenced for bribery to a fine or imprisonment for at most two years. (Law 1977: 1 03)

Chapter 20 section 2

An employee who receives, accepts a pro,ise of or demands a bribe or other improper reward for the performance of his duties, shall be sentenced for taking a bribe to a fine or imprisonment for at most two years. The same shall apply idfthe employee committed the act before obtaining the post or after leaving it. If the crime is gross, imprisonment for at most six years shall be imposed.

The provisions of the first paragraph in respect of an employee shall also apply to: 1. a member of a directorate, administration, board, committee or other such agency

belonging to the State, a municipality, county council, association of local authorities, parish, religious society, or social insurance office,

2. a person who exercises an assignment regulated by statute, 3. a member of the armed forces under the Act on Disciplinary Offemces by Memmbers

of the Armed Forces, etc ( 1986:644) or other person performing an official duty prescribed by Law,

4. a person who, without holding an appoinment or assignment as aforesaid, exercises public authority and

5. a person who, in a case other than stated in points 1-4, by reason of a position of trust has been given the task of managing another's legal or financial affairs or independently handling asn assignment requiring qualified technical knowledge or exercisng supervision over the management of such affairs or assignment. ( Law 1993 :207 )

9

Sentences

Penal Code

Chapter 17 Section 7

Chapter 2

Annex 2

Statistics for 1998

Fines or probation sentence

Bribery 1

Corruption 5

Registered crimes according to types

Sentences

15 of which bribery was main crime in 12

5 of which main 3

Statistics for 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999(prel.)

Penal Code

Chapter 17 1671 1752 2042 2294 2488 2493 2685 2862 2855 3099 Section 7-13, 15

Only section 7 deals with bribery. The other sections cover such crimes as improper activity at election, violating the privacy of suffrage, interference in a judicial matter, protecting a criminal, aiding escape, violation of official order, obstructing a functionary and pretence of public office. It is not possible to see how many of the registered crimes above regard bribery.

10

Statistics regarding persons sentenced for

Bribery Imprisonment Probation Fines Total

1986 1 5 6 1987 3 2 5 1988 3 3 1989 1 1 5 7 1990 6 2 8 16 1991 5 2 7 14 1992 2 15 17 1993 3 1 7 11 1994· 2 6 8 1995 1 73 3 77 1996 2 4 6 12 1997 3 5 8

Corruption

1988 4 1 4 9 1989 2 1 3 1990 3 2 6 11 1991 1 3 8 12 1992 1 11 12 1993 1 4 24 29 1994 1 3 4 8 1995 2 4 2 8 1996 3 3 3 12 1997 2 5 7

11

8 Ds 1999:36

particular crimes and any further special proVI~IOl1S. Other sanctions may be imposed in accordance With~the provisions concerning their use, even if they are not ment" ned in the provisions concerning particular crimes. (Law 1<)8 . 42)

SectiQU 5

Imprisonment is to be considered a more sj,e punishment thall a fi~. /

Provisions on imprisonment ill relaion to cOlJditional sentence and probation are to be found in 9{lapter 30, Section I. (Law 1~&~4~ /

/ Section 6 ,

No sanction shall be imrosed,4ol1 a person for (l crime commiltcd before attaining the age of Yteen. (Law 1988 :941}

Section 7

:<;(!ctiOll 8

Apart from a anctiQfl, a crime may, in accordance with what is provided, r ult;11 forfeiture of properly. corporate lincs or some other sp lal consequence defined by law and may also entail liability or the payment ofdamag'cs. (Law 19~6:118)

Ds t919:36

Chapter 2

On the Applicability of Swedish Law

" Sertiml J

Crimes committed in this Realm shall be ad.iudged in accordance with Swedish law and by a Swedish court. The same applies when it is uncertain where the crime was committed but grounds exist for "ssuming (hat il was committed within the Realm. (Law 1972:812)

Section 2

Crimes committed outside the Realm shaH be adjudged according to Swedish law and by a S..,,,edish court where the crime has been committed:

I. by a Swedish citizen or an alien domicHcd in Sweden, 2. by an alien not domiciled in Sweden who, after having

committed the crime, nos become a Swedish citizen or has acquired domicile in the Realm or who is a Danish, Finnish, Icelandic, or Norwegian citizen and is present in the Realm, or

3. by any other alien. who is .present ill the Realm, and the crime under Swedish Law can result in imprisonment for more than six months.

The tirst, paragraph shaH not apply if the act is not subject to criminal responsibility under the Inw of the place where it \\0115

committed or if it was committed within an area not belonging to any state and. under Swedish law, the punishment for the act cannot be more severe than a fine.

In cases mentioned in this Section, a sanction may not be imposed which is mOTC severe than I.he severest punishment provided for the crime under the law in the place where it was committed. (Law 1972:812)

9

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Seclim: 3

Even in cases other than those listed in Section 2, crimes committed outside the Realm shall be adjudged according to Swedish law and by a Swedish court:

1. if the crime was committed on board a Swedish vessel or aircraft or was committed in the course of duty by the officer in charge or a member of its crew,

2. ifthe crime was committed by a member of the armed forces in an area in which a detachment of the armed forces was present, or if it was committed by some other person in such an area and the detachment was present for a purpose other than an exerCIse,

3. if the crime was committed in the course of duty outside the Realm by a person employed in a foreign contingent of the Swedish anned forces,

4. if the crime committed was a crime against the Swedish nation, a Swedish municipal authority or other assembly, or against a Swedish public institution,

5. if the crime was committed in an area not belonging to any state and was directed against a Swedish citizen, a Swedish association or private institution, or agamst an alien domiciled in Sweden,

6. if the crime is hijacking, maritime or aircraft sabotage, airport sabotage. an attempt to commit such crimes, a crime against international law, unlawful dealings with chemical weapons, unlawful dealings with mines or false or careless statement before an international court, or

7. if the least severe punishment prescribed for the crime in Swedish law is imprisonment for four years or more. (Law 1998:1703)

Section 3 a

Besides the cases described in Sections 1-3, crimes shan be adjudged according to Swedish law and by a Swedish court in accordance with the provisions of the Act on Intemational

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Ds 1999:36

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Collaboration conceming Proceedings in Criminal Matters (1975: 19). (Law 1976:20)

Section 4

A crime is-.deemed to have been committed where the criminal act was perPetrated and also where the crime was completed or, in the case of an attempt, where the intended crime would have been completed.

Section 5

Prosecution for a crime committed within the Realm on a foreign vessel or aircraft by 3n alien, who was the officer in charge or member of its crew or otherwise traveHcd in it, against another alien or a foreign interest shall not be instituted without the authority of the Government or a person designated by the Government.

Prosecution for a crime committed outside the Realm may be instituted only foHowing the authorisation referred 10 in the first paragraph. However, prosecution may be instituted without such an order jf the crime consists of a false or careless statement before an intematiollol court or if the crime was committed:

I. on a Swedish vessel or aircraft or by the officer in charge or some member of its crew in the course of duty,

2. by a member of the armed forces in :m area in which a detachment of the armed forces was present.

3. in the course of duty outside the Realm by a person employed by a foreign contingent of the Swedish armed forces,

4. in Denmark, Finland, Iceland or Norway 01" on a vessel or aircraft in regular commerce between places situated in Sweden or one of the said states, or

5. by a Swedish, Danish, Finnish. Icelandic or NOtWegian citizen against a Swedish interest. (Law 1993:350)

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Section J 0

If the qucstion of responsibility for an act has been detennined by a judgement which has entered into legal force pronounced in a foreign state where the act waR committed, or by a foreign state in which the European Convention of 28 May 1970 on the International Validity of Criminal Judgements or the European Convention of 15 May 1972 on the Transfer of Proceedings in Criminal Matters was in forcc, the accused may not be prosecuted for the same act in this Realm:

1. if he h~s h,..p.n ~cQuitted, 2. If he has been declal'ed guilty of the Clime withoul a sanction

being imposed, 3. if the sanction imposed has been enforced in its entirety or

enforcement is in process, 4. if the sanction imposed has lapsed under the law of ~he

foreign state. The first, paragraph shall not apply to a crime under Section I

or Section 3, points 4. 6 and 7, unless legal proceedings in the foreign state were instituted at the request of a Swedish authority.

If the question of responsibility for an act has been dctennincd by a judgement pronounced by a foreign state and no impediment to legal proceedings exists by reason of what has been previously stated in this Seclion, the act may be prosecuted in the Realm only by order of lhe Government or a person authorised by the Government. (Law 1987:161)

Seclioll 6

If a person is sentenced in the .Realm for an act for which he has been subjected to a sanction outside the Realm, the sanchon shall be detennined with due consideration for what he has undergone outside the Realm. If he should be sentenced to a fine "r imprisonment and he has been sentenced to a sanction 0 f deprivation of liberty outside the Realm, what he has undergone therewith shall be taken fully into consideration when determining

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Ds 1999:36

the sa..rtction. In cases referred to tn the first, paragraph a tess severe

punishment than that provided for the act may be imposed or a sanction cornpietely waived. (Law t 972:812)

~ SecUoll 7

) . In addition to the provisions of this Chapter on the applicability of Swedish law and the .jurisdiction of Swedish courts, limitations resulting from generally recognised fundamental principles of public international law or from special provisions in agreements with tOl'eign powers, shall be oDseI"\'ed.

Section 70

If an alien has committed a crime in the exercise of an office or duty comprising a general position held on behalf of another state or international organisation, a prosecution for the crime may onJy be instituted on order of the Government. The foregoing does not apply if. by means of misleading information, disguise or other means, the perpetrator has attempted to conceal the capacity in which he acted. (Law 1985:518)

Section 7b

If, on the occasion of a visit to Sweden of a f<lreign power's military forces within the framework of international co-operation, a crime is committed by personnei of the foreign power be1<lnging to its forces, a prosecution for the crime mny only be instituted on order of the Government. (Law 1996:401)

Section 8

Special provislons apply to extradition for crimes. Conditions stipulated in connection with extradition from a

foreign state to Sweden shall be complied with in the Realm.

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KEGERINGSKANSLIET Ministry for Foreign Mfairs

UNOFFICIAL TRANSLATION

EXTRADITION FOR CRIMINAL OFFENCES ACT (1957:668)

This Act may be cited as the 1957 Extradition Act

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Conditions for Extradition

Section 1 A person residing in Sweden who is suspected, accused or convicted of a punishable offence in a foreign state may be extradited to that state by order of the Swedish Government in accordance with this Act. Act 1975:292.

Section 2 Swedish nationals may not be extradited.

Section .3 Repealed by Act 1975:292.

Section 4 (1) No person may be extradited unless the act for which his extradition is requested constitutes a criminal offence which under Swedish law is punishable by a term of imprisonment exceeding one year. If the person has been convicted of the offence in the foreign state, he may be extradited only if the penalty imposed is deprivation of liberty for not less than four months or other institutional custody for a

corresponding period. (2) If a person is to be extradited to a foreign state for an act referred to in subsection (1), extradition to that state may also be granted for any other act which constitutes a criminal offence under Swedish law. (3) If the person has been sentenced in the foreign state to a combined penalty for an act referred to in the first sentence of subsection (1) and for another act which constitutes a criminal offence under Swedish law, he may be extradited for these acts if the combined penalty imposed is deprivation of liberty for not less than four months or other institutional custody for a corresponding period. Act 1975:292.

Section 5 (1) Extradition may not be granted in respect of offences governed by the provisions of chapter 16 of the Penal Code relating to offences committed by members of the armed forces or of chapter 21 of the Penal Code or of the National Service Act (1994:1809). (2) However, if the offence also involves an offence which is otherwise extraditable, the above provision shall not constitute a legal impediment to the extradition of the person for that offence. Act: 1994:2066.

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Section 6 (1) Extradition may not be granted for political offences. (2) If the act also includes an offence which is not of a political nature, extradition may be granted for the said offence provided that t in the case in question, the nature of the act is found to be essentially non-political.

Section 7 A person may not be extradited if, on account of his origin, membership of a social group or religious or political views, or otherwise on account of political circumstances, he runs the risk of being subjected in the foreign state to persecution which is directed at his life or liberty or is otherwise severe, or if he has no assurance that he will not be sent to a state in which he runs such a risk.

Section 8 Extradition may not be granted in a particular case if, in view of the youth or state of health or any other personal circumstances of the person concerned, trus is found, with due regard to the nature of the offence and to the interests of the foreign state, to be manifestly incompatible with basic standards of humane treatment.

Section 9 (1) If the person sought has been convicted of the offence in the foreign state, his eA-cradition may not be granted unless the judgment is substantiated by the supporting documentation and does not give rise to any serious objections in other respects. (2) If a judgment has not been delivered on the act in the foreign state, the request for extradition shall be based on a warrant of arrest issued by a competent authority in that state. However, in the case of an act for which extradition may be granted pursuant to section 4 (2) the request must be based on some other documentation. The request must not be granted unless there is probable cause for believing that the person concerned has committed the act. (3) By agreement with a foreign state it may be decided that, where that state is concerned, a conviction or a warrant of arrest issued by a court of law or a judge shall be recognized unless in a particular case the judgment or the warrant is obviously in error. It may be stipulated in such an agreement that a judgment delivered without the convicted person being present at the court proceedings in the case shall only be recognized if the person's right to defend himself can nevertheless be deemed to have been adequately safeguarded or if he is entitled, under an assurance given by the foreign state in the extradition case, to demand a judicial review which safeguards that right. Act 19i9:98.

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Section 10 (1) If judgment in respect of the alleged offence has been delivered in Sweden on the person sought, or if it has been decided to waive prosecution pursuant to chapter 20, section 7 of the Swedish Code of Judicial Procedure or corresponding provisions in another statutory instrument, the person may not be extradited for that offence. (2) Extradition may not be granted if the penalty for the offence is no longer enforceable under Swedish law. (3) If the question of liability for the offence has been considered and a legally valid judgment delivered in a foreign state other than the state requesting extradition, and if the offence was committed in the former state or if that state has acceded to the European Convention on Extradition of 13 December 1957, the European Convention of 28 May 1970 on the International Validity of Criminal Judgments or the European Convention of 15 May 1972 on the Transfer of Proceedings in Criminal Matters or has concluded a special agreement with Sweden on extradition for criminal offences, the accused may not be extradited for the offence where: 1. he has been acquitted; 2. he has been pronounced guilty of the offence but no penalty has been imposed; 3. he has served the sentence in its entirety or is still serving it; or 4. the penalty imposed is no longer enforceable according to the laws of the state in which the judgment was delivered. (4) Subsection (3) shall not apply to offences which have been committed in the state requesting extradition or against that state or against its people or the public institutions in that state, or to offences referred to in chapter 2, section 3, section 5 or section 6 of the Penal Code, unless legal action has been taken upon the application of the requesting state. Act 1975:292.

Section 11 (1) A person who has been charged in Sweden with another offence punishable by imprisonment or who, according to the sentence passed on him, is to serve a term of imprisonment or other institutional custody, may not be surrendered as long as the impediment exists. The same shall apply if a preliminary investigation has been opened with regard to such an offence. (2) Notwithstanding the provisions of subsection (1), a person may be extradited to stand trial for the act for which the foreign state has

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requested extradition provided that he is later to be surrendered to the Swedish authorities in accordance with a government decision. Act 1975:292.

Section 12 (1) When extradition is granted, the following conditions shall be laid down where applicable:

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1. Except where the Government so agrees pursuant to section 24, the person extradited may not be prosecuted or punished in the foreign state for any other offence committed prior to his extradition nor extradited to another state, except in cases referred to in section 13 (2), unless he has failed without valid reason to leave the country within forty~five days of termination of the trial and of his punishment or any other sanction which may have been imposed upon rum for the offence for which he has been extradited. or has returned to the country after~aving left it. 2. The person extradited may not be prosecuted for the off-enre-~oui1:---~ .. which has only been given ad hoc or emergency powers to try such cases. \ However, the Government may grant exemptions from this provision where it is deemed to be compatible with legal certainty. 3. A person who is extradited may not be sentenced to death for the offence. (2) In cases referred to in sections 5 and 6 it shall be expressly stipulated that the person who is extradited may not be punished pursuant to provisions concerning offences committed by members of the armed forces or for a political offence. (3) The Government shall lay down any other conditions it deems necessary. Act 1975:292.

Section 13 (1) If two or more states request extradition of the same person, a. decision on the state to which the person is to be extradited shall be taken following due consideration of the nature of the offence or offences, the time and place of commission, the chronological order of the requests, the nationality and domicile of the person concerned and any other relevant circumstances. (2) If the requests relate to different offences, it may be stipulated that the person to be extradited to one state shall subsequently be extradited to another state subject to conditions laid down in section 12.

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Procedure

Section 14 (1) A request for extradition shall be submitted to the Swedish Ministry for Foreign Affairs. It shall be sub mined through diplomatic channels unless Sweden has agreed with the foreign state on a different procedure. (2) The request shall be accompanied by a copy of the warrant of arrest or judgment which is referred to or, in cases referred to in section 4 (2), any other documentation on which the request is based. Unless mentioned in the aforesaid documents, particulars shall be given of the person's nationality and domicile, the nature of the offence, the time and place of its commission and the penal provisions that are applicable in the foreign state. A description of the person shall also be provided where possible. Act 1979:98.

Section 15 Before the Government takes a decision on the request, the Prosecutor-General shall deliver an opinion on the matter. If the person referred to in the request has not consented to being extradited, the case shall, moreover, be tried by the Supreme Court. However, where there are obvious reasons for not granting the request, it shall be refused forthwith. Act 1981:1090.

Section 16 (1) The Prosecutor-General's opinion shall be based on an investigation as referred to in the provisions concerning preliminary investigations in criminal cases. (2) Coercive measures shall be taken subject to the general rules laid down for criminal cases. A decision of the court shall be provisionally valid until judgment has been passed in the case or, if extradition is granted, until it is executed. However, if the Supreme Court finds that extradition is contrary to the provisions of sections 1-10, the decision shall immediately cease to be valid. If there is an impediment to extradition pursuant to section 11 (1), the decision shall not be valid during the period when the person, having been arrested or detained on suspicion of having committed an offence referred to there, is deprived of liberty or is serving a term of imprisonment or is otherwise held in institutional custody. (3) A decision on coercive measures may be delivered after extradition has been granted.

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(4) An appeal against the court's decision on coercive measures may be lodged in a statement of grievance to the Supreme Court without any time limit. (5) A person who is detained in an extradition case is entitled to demand a new hearing within three weeks of the date of the last decision. Act 1983:227.

Section 17 When the investigation has been completed, the Prosecutor-General shall submit the case together with his opinion to the Supreme Court. If the person sought has consented to being extradited, the case and the opinion shall be submitted to the Government instead. Act 1981:1090.

Section 18 (1) The Supreme Court shall decide whether extradition may be lawfully granted pursuant to sections 1·10 of this Act. (2) If it is deemed necessary, a hearing shall be held. Such a hearing may not be refused unless the previous hearing must be considered sufficient or the case is deemed self· evident. Notwithstanding that the case has been brought before the Supreme Court, any question pertaining to coercive measures shall be examined by a court of first instance, unless the Supreme Court decides otherwise. In other respects the case shall be tried in accordance with the general provisions governing criminal cases. The remuneration of public defence counsel, witnesses or any other persons heard in the case shall be paid out of public funds, unless there are special reasons for these expenses to be borne by the person sought. Act 1996:1628.

Section 19 Repealed by Act 1980:182

Section 20 (1) When the Supreme Court has delivered its decision, the case shall be reported to the Government. If the Supreme Court has found that eXtradition is contrary to the provisions of sections 1-10, the request may not be granted. However, it may be decided by agreement with a foreign state that, if the provisions of section 8 or section 9 are considered to constitute an impediment to extradition, the matter may be referred to international arbitration. (2) If extradition is granted, a period of time shall be determined within which the foreign state shall fetch the person to be extradited. The period fixed may not, unless in exceptional circumstances, exceed one month from the date on which the requesting state was informed of the

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decision. The local police authorities shall give assistance in executing the extradition and may in that connection, where the person to be extradited is at libeny, take him into custody if necessary, but not for more than twenty-four hours. Act 1983:227.

Section 21 When extradition is granted, the Government may order that any property that has been confiscated shall be handed over to the foreign state; any reservations deemed necessary with regard to private rights or the public interest may be prescribed in this connection.

Section 22 The Government or the Minister of Justice shall determine the remuneration to be paid to public defence counsel out of public funds for any work performed on behalf of the Government. Act 1992:109

Other provisions

Section 23 (1) Any person who is suspected, accused or convicted of an offence in a foreign state which is extraditable within the meaning of this Act may, at the request of the competent authority in the foreign state or under a search warrant issued there, be immediately arrested or ordered by a public prosecutor not to leave the jurisdiction or to report to the police in accordance with the general rules governing criminal cases. Property may also be confiscated in such cases. (2) A decision to use coercive measures shall be reported without delay to the court which, following proceedings in accordance with the provisions governing criminal cases, shall expeditiously consider the measure and, if the arrest or the order prohibiting travel or requiring the person to report to the police is upheld, shall notify the Minister of Justice forthwith. If the Minister finds that there is a legal impediment to or other grounds for not granting extradition, he shall procure a government order cancelling such a measure. Otherwise, the foreign state shall be notified of the measure by the Ministry for Foreign Affairs. The notification shall mention the time limit fixed by the Minister of Justice for submission of the request for extradition. This period may not exceed forty days from the date on which the person was arrested or ordered not to travel or required to report to the police in accordance with subsection. (1). When the request for extradition is received, the Ministry for Foreign Affairs shall immediately notify the authority which first

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decided to take the measure. This authority shall also be informed if a request for extradition is not received within the time appointed. (3) No appeal may be made against a decision of the court. However, a person who has been arrested or ordered not to travel or required to report to the police may demand a new hearing within three weeks of the date of the last decision to consider whether the measure shall be upheld. (4) If a request for extradition of a person who has been arrested or ordered not to travel or required to report to the police is .not received within the time fixed in accordance with subsection (2), the person arrested shall be released or the order prohibiting travel or requiring him to report shall be cancelled. The same shall apply where a request for extradition is refused pursuant to section 15. If, for any reason, the person held in custody is not released, an application for issue of a warrant of arrest shall be submitted to the court no later than eight days from the date on which the Public Prosecutor was informed of the request for extradition. If no such application is submitted, the person held in custody shall be released immediately. Act 1981:1297.

Section 24 (1) Notwithstanding the conditions laid down for extradition, the Government may, if so requested by the foreign state, agree to let the person who has been extradited be tried for an offence committed prior to his extradition other than that for which he was extradited, or to be extradited to another state. The provisions governing requests for extradition shall, where they are relevant, be applicable to such a request. (2) The Government may only give its consent if the relevant documents show that there are legal grounds for extradition in, respect of the offence. (3) If the documents received show that the request cannot be lawfully granted, or if the Government finds that there are other grounds for not acceding to the request, it shall be refused forthwith. Otherwise, the case shall be examined by the Supreme Court, unless the person referred to in the request has consented to extradition. If the Supreme Court finds that there is any legal impediment, the request may not be granted. Act 1981:1090.

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Section 25 (1) When a request for extradition has been received, legal proceedings in respect of the specified offence may not be instituted unless the request has been refused. (2) If extradition is granted after proceedings have been instituted, this circumstance shall be deemed to constitute a procedural hindrance. Act 1975:292.

Section 26 (1) The Minister of Justice shall be empowered to allow transit through Sweden of a person extradited from one foreign state to another, provided that the person concerned is not a Swedish citizen and that there are no other strong reasons for refusal. A request for transit shall be made through diplomatic channels. (2) Transit of a Swedish citizen through Sweden may be allowed in the case of extradition to Denmark, Finland, Iceland or Norway, provided that there would not have been any cause to refuse his extradition to the requesting state under sections 2 and 4 of the Extradition for Criminal Offences to Denmark, Finland, Iceland and Norway Act (1959:254). Act 1975:292.

Section 26a If a person has been extradited to Sweden for trial in this country on condition that he will later be surrendered to an authority in the foreign state. the police authority in the place where the trial is being held shall be responsible for ensuring that such surrender takes place. The police authority may take the person to be extradited into custody where this is necessary to enable the surrender to take place. Act 1983:227.

Section 27 The provisions of this Act shall not apply to Denmark, Iceland, Finland and Norway in cases where other legislation is applicable. Act 1975:292.

Simplified extradition procedure in the European Union

Section 28 Where a person who is sought for the purpose of extradition to a Member State of the European Union consents to extradition, a simplified procedure may be applied in the extradition case. with the derogations from the provisions of this ACt provided in sections 29 to 40.

Act 1999:746.

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Section 29 (1) For the simplified procedure to be applicable, a search warrant shall contain particulars of: 1. the identity of the person sought;

2. the authority requesting the person's arrest, if such a request has been submitted; 3. the existence of a decision or judgment referred to in section 9 (3); 4. the nature and legal description of the offence; 5. a description of the circumstances in which the offence was committed, including the time, place and degree of involvement of the person sought; 6. the consequences of the offence, where possible. (2) Further information may be requested if this is necessary for the purpose of issuing an extradition order. Act 1999:746.

Section 30 If the search warrant includes the particulars mentioned in section 29, no request for extradition pursuant to section 14 need be made. If such a request has been submitted, the simplified procedure may be applied nevertheless, provided that the other conditions are fulfilled. Act 1999:746.

Section 31 If a person is sought for the purpose of extradition, the public prosecutor shall expeditiously investigate whether the other conditions for extradition are fulfilled. For this purpose the provisions concerning preliminary investigations in criminal cases shall be applicable. Act 1999:746.

Section 32 (1) The person sought for the purpose of extradition shall be asked as soon as possible by the prosecutor if he consents to extradition. If so, he shall also be asked whether he acknowledges the right of the requesting state, without the need for permission to be granted pursuant to section 24, to try or punish him for an offence committed prior to extradition other than that to which the search warrant relates and to extradite him to another Member State of the European Union. He shall be informed of the consequences of giving his consent or granting permISSion. (2) The person's consent and permission shall be submitted to the prosecutor. The same procedure shall be applied as in the case of extradition for criminal offences to Denmark, Finland, I,elan.d and Norway.

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(3) The requesting state shall be notified immediately if consent or permission is granted. If the person sought is arrested or forbidden to leave the jurisdiction or ordered to report to the police, and if he does not give his consent, the requesting state shall be notified within ten days of any decision to use coercive measures. However, this shall not prevent application of the simplified procedure where consent is given after expiry of this period. (4) If consent or permission is withdrawn before the extradition order is executed, this withdrawal shall be taken into consideration. The requesting state shall be notified immediately of the withdrawal. (5) Notification of the Minister of Justice by the court, as referred to in section 23 (2), shall be made only if the person sought does not consent to being extradited or if he does not give his consent to extradition within ten days of being arrested or forbidden to leave the jurisdiction or ordered to report to the police, or if he withdraws his consent. Act 1999:746.

Section 33 (1) If the person has given his consent, the prosecutor shall refer the case to the Prosecutor-General without delay. If it is apparent that extradition must take place, the Prosecutor-General shall pronounce a decision to that effect except in circumstances referred to in section 13. OtheI"W'ise, the Prosecutor-General shall submit the matter to the Minister of Justice for a decision, together with his own opinion. Decisions on extradition in cases referred to in section 13 or decisions refusing a request for extradition on the grounds of a legal impediment to e>..."tradition shall, however, be taken by the Government. (2) Decisions on extradition shall be taken not more than twenty days after consent has been given. The requesting state shall be notified of the decision immediately. Act 1999:746.

Section 34 (1) If it is decided to extradite the person sought, the decision shall be executed within twenty days. If the decision is not executed within that time, any decision to use coercive measures pursuant to section 23 shall immediately cease to be valid. (2) If the decision cannot be executed within twenty days due to unforeseen circumstances, the requesting state shall be notified thereof and a new date shall be fixed for execution. If the decision is not executed within twenty days of the new date that is fixed. any decision to use

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coercive measures pursuant to section 23 shall immediately cease to be valid. Act 1999:746.

Section 35 If the Minister of Justice rules that extradition cannot take place under the simplified procedure, a time limit shall, where necessary, be fixed in accordance with section 23 (2). Act 1999:746.

Section 36 If consent to extradition is withdrawn, the time that elapses between notification of consent and withdrawal thereof shall not be taken into account when the time limit referred to in section 23 (2) is fixed. Act 1999:746.

Section 37 The Prosecutor-General shall determine the remuneration to be paid to public defence counsel for any work performed in connection with proceedings at the Office of the Prosecutor­General. Act 1999:746.

Section 38 No appeal may be made against decisions of the Prosecutor-General concerning eA.'tradition or remuneration of public defence counsel. Act 1999:746.

Section 39 In connection with a decision to grant extradition, the Minister of Justice and the Prosecutor-General may take a decision pursuant to section 21. Act 1999:746.

Section 40 Applications for transit through Sweden of a person to be extradited under the simplified procedure shall be submitted to the Ministry of Justice. Act 1999:746.

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(Translation 2000-11-07)

International Legal Assistance in Criminal Matters Act (2000:562)

The following is hereby enacted.

Chapter 1. Introductory provisions

Section 1 This Act contains provisions concerning legal assistao.ce in criminal cases in Sweden and abroad.

This Chapter contains provisions concerning the scope of the Act. Chapter 2 contains general provisions concerning legal assistance in Sweden.

Chapter 3 contains general provisions concerning legal assistance abroad. Chapter 4 contains special provisions concerning different measures of legal

assistance. Chapter 5 contains provisions concerning conditions regarding limitation on use,

immunity. secrecy, sharing of confiscated property between states, reimbursement of costs as well as on implementation and announcement.

Scope

Section 2 Legal assistance under this Act comprise the following measures:

1. examination in conjunction with preliminary investigation in criminal matters

2. taking of evidence in court 3. hearing by telephone conference 4. hearing by video conference 5. provisional attachment, seizure and search of premises and

other measures under Chapter 28 of the Code of Judicial Procedure

6 interception of telecommunications 7. secret camera surveillance 8. transfer of persons deprived of liberty for hearing, etc. The Act does not prevent assistance with another measure than

those referred to in the frrst paragraph if it can be taken without using coercive measure or other coercive means.

There are special provisions relating to extradition and service. There are also special provisions concerning legal assistance in criminal matters for certain international bodies.

Section 3 If another state requests legal assistance in Sweden with a measure in legal proceedings relating to the investigation of or prosecution

1

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of a natural or legal person for an offence, the assistance requested shall be provided in accordance with the provisions of this Act.

Secti.on 4 Legal assistance in Sweden is provided by a prosecutor or court, unless otherwise stated in this Act.

Section 5 Legal assistance in accordance with Section 2 shall also be provided

1. in matters which are being dealt with in administrative proceedings or in other proceedings than criminal proceedings in the requesting state or in Sweden,

2. in matters that relate to damages for improper deprivation of liberty, institution of prosecution or improper final judgment, or

3. in matters dealt with in conjunction with a criminal case. The first paragraph, item 1, only applies to the extent that it has been agreed under an international agreement that is binding on Sweden.

Section 6 Legal assistance in accordance with Section 2 shall also be provided in matters concerning pardon. postponement of sentencing or execution of a penalty, conditional release or interruption of execution of penalty or the like.

Section 7 This Act contains certain provisions providing that a Swedish prosecutor may apply for legal assistance abroad. The Act does not prevent a Swedish prosecutor from applying for legal assistance abroad also in other matters to the extent that the other state so allows.

A Swedish court may only apply for legal assistance abroad in accordance with the provisions in this Act.

Chapter 2. General provisions concerning legal assistance in Sweden.

General prerequisites

Section 1 Legal assistance referred to in Chapter 1, Section 2, first paragraph, items 1-7, shall be provided subject to the prerequisites applicable to a. corresponding measure during a Swedish preliminary investigation or trial in accordance with the Code of Judicial Procedure or other statute or enactment and in accordance with special provisions in this Act.

Legal assistance referred to in Chapter 1. Section 2, flIst paragraph, item 8, is provided in accordance with the special provisions in this Act.

Chapter 5, Section 2 contains provisions whereby legal assistance may be combined with conditions in certain cases.

Section 2 Legal assistance referred to in Chapter 1, Section 2, first paragraph, items 1 ~ 4 and 8 may be provided even if the act to which the

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request relates does not correspond to an offense according to Swedish law. Legal assistance referred to in Chapter 1, Section 2, first paragraph, items 5-7, may only be provided jf the act to which the request relates corresponds to an offense according to Swedish law (dual criminality), unless otherwise follows from Chapter 4, Section 20 regarding search of premises and seizure.

The request

Section 3 A request for legal assistance in Sweden WIder this Act may be { made by a foreign prosecutor, investigating judge, another judge or court or by some other person empowered to make such a request according to an international agreement that is binding on Sweden.

Section" A request for legal assistance in Sweden under this Act should contain:

information about the foreign court or authority that is executing the matter, a description of the legal proceedings pending, information about the act involved, stating the time and place of the act, together with the provisions that are applicable in the requesting state, information about which measure is requested and, when appropriate, in which capacity a person shall be heard, name and address of the persons implicated in the matter.

Chapter 4, Sections 8, 11, 14 and 29 contain special provisions concerning what a request further should contain regarding certain kinds of measures.

If the matter is urgent or if execution is desired within a specific time limit, this, together with the reasons for the urgency or time limit, shall be stated.

A request for legal assistance shall be made in writing by post, messenger or telefax. The request may also, upon agreement in the particular case, be sent in another manner.

Section 5 A request for legal assistance and enclosed documents shall be written in Swedish, Danish or NOl"\Vegian or be accompanied by a translation into one of these languages, unless the instance responsible for executing the request under this Act so allows in the particular case.

Section 6 A request for legal assistance in Sweden under this Act shall be sent to the Ministry of Justice, which will pass the request on to the Prosecutor-General or to the competent court unless the request shall be considered by the Government. The Ministry of Justice may, following consultation with the Prosecutor-General, pass the matter on directly to a competent prosecutor.

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A request from a state that is a Member of the European Union or from Norway or Iceland may be made directly to a competent prosecutor or court. This also applies if it in an international agreement that is binding on Sweden has been agreed that a request may be made directly. Competence and transfer to another prosecutor or district court

Section 7 A request that according to this Act is to be executed by a court shall be executed by the district court within whose area the requested measure shall be taken unless otherwise prescribed by this Act.

A request that according to this Act is to be executed by a prosecutor shall be executed by the prosecutor within whose area the requested measure shall be taken or the prosecutor assigned by the Prosecutor-General.

A prosecutor who is competent to execute one of several requested measures may also, if it is appropriate. execute other requested measures that another prosecutor is competent to take.

If the prosecutor or the district court is not competent to execute the request, the request shall be transferred to a competent prosecutor or district court. The request may also, following consultation, be transferred in other cases, if this is appropriate.

Notifications

Section 8 If the foreign authority so requests, the prosecutor or district court that is handling the matter shall acknowledge receipt of the request, unless the measure requested can be taken immediately.

If a measure requested can not be taken within the time limit stated in the request and if it can be assumed that this will impair the proceedings in the requesting state, the prosecutor or the district court that is handling the matter shall, promptly, notify the foreign authority of when it will be possible to take the measure requested.

Incomplete requesTs and impediments to execution

Section 9 If the request does not contain the information necessary for the matter to be executed, the requesting state shall be given an opportunity to supplement the request. If the request can only be granted partially or subject to certain conditions, the requesting state shall be notified about the impediments that exist and be given an opportunity to express its views or to supplement or amend the request.

The procedure

Section 10 Requests for legal assistance shall be executed promptly. Unless otherwise prescribed by this Act, the same procedure shall be applied as is applied when a corresponding measure is taken in COIUlection

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with a Swedish preliminary investigation or trial. A court may decide that the matter shall be executed completely or partially in a foreign language, if this is appropriate.

Section 11 If the request contains a request of a particular procedure, this shall be applied, if it does not conflict with the fundamental principles of the Swedish legal system.

Section 12 A person who shall be heard or otherwise satisfy something according to this Act is entitled to refuse, if there is a basis for so doing under Swedish law or under the law of the requesting state.

Public defence counsel, counsel for aggrieved person and supporting person

Section 13 A suspect, accused or aggrieved person who shall be heard according to this Act, or who is otherwise adversely affected by a measure requested, has the same right to a public defence counsel, counsel for aggrieved person or supporting person as in the case of a Swedish preliminary investigation or trial.

Chapter 4, Section 3 contains special provisions concerning public defence counsels.

Consideration of requests and decisions on refusals

Section 14 A request for legal assistance shall be refused if execution of the request would violate Sweden's sovereignty, involve a risk to national security or conflict with Swedish general principles of law or other essential interests.

A request for legal assistance may also be refused if 1. the act is in the nature of a political offence, 2. the act comprises a military offence, unless the act also

corresponds to another offence Wider Swedish law that is not a military offence,

3. a judgment or decision on waiver of prosecution concerning the act has been issued in Sweden, or

4. the circumstances are otherwise such that the request should not be granted.

The second paragraph does not apply if a refusal would conflict with an international agreement that applies between Sweden and the requesting state. The second paragraph, item 1, does not apply to a request from a state that is a Member of the European Union or from Norway or Iceland.

Section 15 Decisions on refusals on any of the grounds stated in Section 14 are made by the Government. If a prosecutor or a court considers that a request should be refused on any such ground, the request shall be

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transferred to the Government. A request may also be transferred to the Government for determination of a refusal in other cases.

Otherwise, the instance that deals with the matter considers and decides whether the prerequisites and conditions applicable under the Act are satisfied. If the request has been submitted to the Ministry of Justice and it is manifest that the request should be refused, the Minister of Justice may directly decide to refuse the request instead of passing it on in accordance with Section 6.

Section 16 A decision to refuse a request completely or in part shall explain the reasons that detennined the outcome.

Reporting back

Section 17 When the processing of the matter has been concluded, it shall be reported to the Mi.nistry of Justice for passing on to the requesting state. If the request has been made directly in accordance with Section 6, second paragraph, the matter shall instead be reported directly to the authority in the requesting state that made the request.

Chapter 3. General provisions concerning legal assistance abroad

Section 1 The prOVIsIons of Chapter 2, Section 4, first and third paragraphs, shall be applied when. legal assistance is requested abroad Wlless otherwise follows from an international agreement that is binding on Sweden or from requirements of the receiving state.

Chapter 4, Section 9, 10 and 13 contains special provisions concerning what a request for a hearing by telephone conference or video conference shall contain.

Section 2 A request from a Swedish prosecutor or court that a measure that is referred to in this Act shall be taken abroad shall be sent to the Ministry of Justice to be passed on to the foreign state.

A request for legal assistance in Denmark, Finland, Iceland or Norway shall be sent directly to the competent authority. The request may also be sent directly to the competent authority in another state if it has been agreed in an international agreement that is binding on Sweden or if that state otherwise allows this.

Section 3 Chapter 5, Section 1 contains provisions on what shall apply in the event of legal assistance provided to Sweden being combined with conditions.

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Chapter 4. Special provisions concerning different measures of legal assistance

Examination in conjunction with preliminary investigation

Section 1 A request for hearing in Sweden in accordance with the provisions relating to preliminary investigations in criminal matters is executed by a prosecutor.

Representatives for the requesting authority may participate at the hearing and may, with the permission of the prosecutor, present questions directly to the person being heard.

Taking of evidence in courts

Taking of evidence in Swedish courts

Section 2 A request for taking of evidence in a Swedish court that involves holding a hearing, the production of written evidence or the conduct of a viewing is executed by a district court.

The matter shall be regarded as a taking of evidence outside a main hearing. The parties shall be notified of the time and place for the taking of evidence but only need to be summonsed if the party shall be heard or otherwise satisfy something at the taking of evidence.

Section 3 At a taking of evidence a public defence counsel may be appointed in accordance with Chapter 21 of the Code of Judicial Procedure for the suspect or the accused also in other cases than those referred to in Chapter 2, Section 13. if there are special reasons.

Section 4 A judge at the foreign court or representative for the authority that requested the taking of evidence may participate at the taking of evidence and may, with the pennission of the court, present questions directly to the person being heard.

Section 5 If the requesting state has presented a request for this, a Swedish prosecutor may participate at the taking of evidence for the purpose of protecting the interests of the requesting state.

Taking of evidence inforeign courts

Section 6 In a case or a matter at a Swedish court, the court may decide that evidence shall be taken in a foreign court. Such taking of evidence

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may relate to conduct of a viewing, written evidence or hearing of a witness. expert, party, the aggrieved person or the person referred to in Chapter 36, Section 1, second and third paragraphs of the Code of Judicial Procedure.

Section 7 If measures referred to in Chapter 23. Sections 13-15, of the Code of Judicial Procedure shall be taken in a foreign court and the foreign state requires that the request first shall be considered by a court in Sweden, a district court may at the request of a prosecutor decide that such measures shall be taken abroad.

Hearing by telephone conference

liearing by telephone conference with a person who is in Sweden

Section 8 A foreign authority may hold a hearing by telephone conference with a person who is in Sweden and consents to the hearing.

If the foreign authority needs the assistance of a Swedish prosecutor or court in connection with the hearing, the authority may apply for legal assistance with a hearing by telephone conference. Such a request for legal assistance in connection with a trial is executed by a district court. A request for legal assistance with a hearing by telephone conference during the preliminary investigation is executed by a prosecutor. The request shall indicate that the party to be heard consents to a hearing by telephone conference.

The date and time for the hearing referred to in the second paragraph and other practical issues associated with the hearing shall be decided in consultation with the authority in the requesting state. The person who shall be heard shall be notified of the time and place for the hearing. The identity and the consent to the hearing by telephone conference shall also be verified. Section 11 first paragraph shall be applied at the hearing if the requesting state so requests. If so, Section 12 shall also apply.

Hearing by telephone confore.nce with a person who is abroad

Section 9 The provisions of Chapter 46, Section 7, second paragraph of the Code of Judicial Procedure concerning hearing by telephone at main hearings may be applied when the person to be heard is abroad if the foreign state so allows.

If the other state requires that its authorities shall give assistance at the hearing. a Swedish court shall apply for legal assistance with the hearing by telephone conference.

If a Swedish court needs assistance of a foreign authority with a hearing by telephone conference, the court may apply for legal assistance in connection with a hearing by telephone conference if it has been agreed

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under an international agreement that is binding on Sweden or if that state otherwise gives such assistance.

The request shall indicate that the person to be heard consents to the hearing by telephone conference.

Section 10 The prosecutor may hold a hearing by telephone conference during a preliminary investigation with a person who is abroad, if the foreign state so allows.

The provisions in Section 9, second to fourth paragraph also apply when a Swedish prosecutor applies for legal assistance.

Hearing by video conference

Video conflrence with a person who is in Sweden

Section 11 A request for legal assistance with a hearing by a video conference in a trial with a person who is in Sweden shall be executed by the district court that has the technical means required for such a hearing. The request shall indicate that the person to be heard consents to a hearing by video conference. 'When processing the matter at the district court, the matter shall be regarded as a taking of evidence outside a main hearing. The parties shall be notified of the time and place for the taking of evidence but do not need to be summonsed unless he or she shall be heard or otherwise satisfy anything at the taking of evidence. If needed, the court may decide on the assistance of an interpreter.

A request for legal assistance with a hearing by video conference during a preliminary investigation is executed by a prosecutor.

Section 12 A witness or expert, who shall be heard by a video conference in accordance with Section 11 may be accompanied by a suitable person as personal support (supporting person) during the hearing.

If the person to be heard so requests or if there is other cause to do so, the district court may appoint a person to assist the person to be heard in accordance with the first paragraph. As regards the counsel, Sections 26,27,29,43 and 47 of the Legal Aid Act (1996:1619) apply. Otherwise, the rules of the Code of Judicial Procedure on assistance by counsel apply.

Video con,forence with a person who is abroad

Section 13 In a case or matter at a Swedish court, the court may, provided that a video conference in a trial is allowed according to Swedish law, apply for legal assistance with a hearing at a foreign authority by video conference of a person who is in another state, if the provision of such legal assistance has been agreed in an international agreement that is binding on Sweden or if the foreign state otherwise provides such assistance. The request shall indicate that the person being heard consents to a hearing by video conference.

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A prosecutor may apply for legal assistance by a foreign authority with a hearing by video conference during the preliminary investigation of a person who is in another state~ if the provision of such legal assistance has been agreed under an international agreement with the other state or if the other state otherwise allows it.

Provisional attacbment, seizure and search of premises and other measures under Cbapter 28 of the Code of Judicial Procedure

The request and procedure

Section 14 If judgment has been issued in the foreign state. a copy of the judgment shall be annexed to the request for provisional attachment or seizure. A request for seizure as referred to in Section 23 should, when appropriate, contain infonnation about when prosecution will be instituted or a judgment can be issued in the requesting state.

Section 15 A request for provisional attachment in Sweden is executed by a prosecutor. The prosecutor shall immediately consider whether the perquisites of the measure exist and in such case hand over the request to the court for a decision.

Section 16 A request for seizure in Sweden, or for search of premises in Sweden to search for property that is subject to seizure, is executed by a prosecutor.

Seizures implemented shall be promptly notified to the court for consideration. The court shall, as soon as it can take place, hold a hearing on the matter. TIle provisions of Chapter 24, Section 17, second paragraph of the Code of Judicial Procedure shall be applied at the hearing.

Section 17 Representatives for the requesting authority may participate at the hearing and may. with the permission of the court, present questions to the person affected by the measure.

Section 18 A request that other measures under Chapter 28 of the Code of Judicial Procedure than referred to in Section 16 shall be taken in Sweden is dealt with by a prosecutor.

Seizure and transfer of seized property to another state

Section 19 Property may be seized and transferred to the requesting state if the property may reasonably be assumed:

to be of importance for the investigation of the act to have been deprived from someone by an offence, or to be confiscated by reason of an offence, if the property

could have been confiscated under Swedish law in a trial in Sweden and there are special reasons to transfer the property to the requesting state.

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Section 20 If the act to which the request relates does not correspond to an offence according to Swedish law, a search of premises in accordance with Section 16 may be made and property seized and transferred to the requesting state, provided that the request has been made by a state that is a Member of the European Union or by Norway or Iceland and that imprisonment may be imposed for the act in the requesting state.

In a case of legal assistance as referred to in Chapter 1, Section 5, first paragraph, item 1. a search of premises may be conducted and property may be seized' and transferred to the requesting state if the act corresponds to an offence for which imprisonment of six months or more is laid down by Swedish law or by the law of the requesting state. What has just been said does not apply if the first paragraph is applicable.

Section 21 The court shall consider whether the seizure is lawfully founded and whether the property shall be transferred to the requesting state.

Section 22 Decisions to transfer seized property to another state are executed by the prosecutor.

Seizure and provisional attachment to secure enforcement in Sweden of a foreign confiscation

Section 23 If confiscation that is decided in another state can be enforced in Sweden, and it can reasonably be anticipated that enforcement in Sweden of the foreign confiscation decision would otheIWise be made more difficult,

1. property that has been confiscated or that can reasonably be assumed to be confiscated as a result of an offence may be seized, or

2. a decision on provisional attachment may be made for so much of the assets of the person concerned as correspond to the value of that which has been confiscated or reasonably may be assumed to be confiscated.

Section 24 When the coUrt decides on provisional attachment or confirms a seizure executed, the court shall decide how long the measure may continue at most. The time detennined may be extended if there is reason to do so.

If there is no longer reason for provisional attacmnent or seizure, the court shall revoke the measure. Before the provisional attaclunent or seizure is revoked, the court shall give the requesting state an opportunity to express its views. unless this is manifestly unnecessary. In other matters, the measures shall remain in force until such time as a request for execution is considered.

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Interception of telecommunications

Secret wire tapping and secret telecommunications surveillance of a person who is in Sweden

Section 25 A request for secret wire tapping or secret telecommunications surveillance of a person who is in Sweden is executed by a prosecutor. The prosecutor shall immediately consider whether the prerequisites for the measure exist and in such case apply for the pennission of the court for the measure.

Secret wire tapping and secret telecommunications surveillance of a person who is abroad

Section 26 If secret wire tapping or secret telecommunications surveillance shall take place of a person who is in another state and the other state requires that the request first be considered by a court in Sweden, the district court mayan the request of a Swedish prosecutor decide to allow secret wire tapping or secret telecommunications surveillance.

Secret camera surveillance

Secret camera surveillance of a person who is in Sweden.

Section 27 A request for secret camera surveillance of a person who is in Sweden is executed by a prosecutor. The prosecutor shall immediately consider whether the prerequisites for the measure exist and in such case apply for the pennission of the court.

Secret camera surveillance of a person who is abroad

Section 28 If secret camera surveillance shall take place of a person who is in another state and the other state requires that the request first be considered by a court in Sweden, a district court may on the request of a Swedish prosecutor decide to allow secret camera surveillance.

Transfer of persons deprived of liberty for bearings, etc.

Transfer from or to Sweden at (he request of another state

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Section 29 Upon application by another state, for a hearing or confrontation in conjunction with a preliminary investigation or trial there,

1. a person who is deprived of liberty in Sweden may be transferred to the other state, if the hearing relates to something other than the personal criminality of the person deprived ofliberty. or

2. a person who is deprived of liberty in the other state may be transferred to Sweden.

A request under the first paragraph, item 1, shall indicate the length of time that the person deprived of liberty needs to stay in the other state.

Section 30 The request is considered by the Government. A request from a state that is a Member of the European Union or from Iceland or Norway is considered by a prosecutor.

A request under Section 29, fust paragraph, item 1, may be refused if a transfer means that the period for the deprivation of liberty is extended or if the attendance of the person deprived of liberty is needed in a criminal matter that is being dealt with in Sweden.

If a request under Section 29, first paragraph, item 1, is granted, the decision shall indicate when the person deprived of liberty shall be returned to Sweden at the latest or, in appropriate cases, be released.

Transfer from or to Sweden at the request of a Swedish prosecutor or court

Section 31 A Swedish prosecutor or court may request that, for the purpose of a hearing or confrontation in conjunction with a preliminary investigation or trial in Sweden,

1. a person who is deprived of liberty in Sweden be transferred to the other state, or

2. a person who is deprived of liberty in the other state be transferred to Sweden.

Expression of views

Section 32 Before considering a request that a person deprived of liberty shall be transferred to another state, views shall be obtained from the authority responsible for the enforcement of the detention unless it is manifest that this is unnecessary. The same applies before such a request is made by a Swedish court or prosecutor.

Transport through Sweden

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Section 33 The Minister of Justice may grant permission for transport through Sweden for a person deprived of liberty who will be transferred over from one state to another state for hearing or confrontation.

Custody in Sweden of transftrred persons

Section 34 A person who is transferred to Sweden shall be taken into custody by a police authority.

If pennission has been granted in accordance with Section 30. the police authority may if necessary, take the person being transferred into custody.

Chapter S. Other provisions

Conditions regarding limitation on use, etc.

Section 1 If a Swedish authority has received information or evidence from another state in accordance with an international agreement that is binding on Sweden and which contains conditions that restrict the possibility to use the information or evidence in connection with the investigation of an offence or in legal proceedings by reason of an offence, Swedish authorities shall comply with the conditions notwithstanding what is otherwise prescribed by statute or other enactment.

Section 2 Legal assistance that is provided in accordance with this Act may be combined with conditions called for having regard to the rights of the individual or which are necessary from the public viewpoint.

Conditions referred to in the first paragraph may not be imposed if they violate an international agreement that is binding on Sweden.

Section 3 The prosecutor or court who provided legal assistance to another state and in that connection imposed conditions in accordance with Section 2, may at the request of an authority in the other state grant exceptions to the condition. The same applies as regards conditions that apply directly by virtue of provisions in an international agreement that is binding on Sweden.

Section 4 The provisions of Sections 1-3 also apply as regards agreements with international organizations.

Immunity

Section 5 To the extent that it has been agreed under an international agreement that is binding on Sweden, a person who upon summons in accordance with the agreement has entered Sweden in order to be heard or in another way participate in the investigation of an offence may not:

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1. be prosecuted or deprived of his or her liberty or in another way subjected to restrictions to liberty by reason of an act, omission or judgment that relates to the time prior to the entry into Sweden and which, as regards a suspect or accused, is not referred to in the request or summons, or

2. without personal consent be ordered to participate in any investigation than that referred to in the request.

The first paragraph also applies to administrative or other procedures as referred to in Chapter 1, Sections 5 and 6.

Section 6 If the person referred to in Section 5 stays in Sweden for more than fifteen days from when notification was obtained from the authority that summonsed the person that attendance is no longer required, the immunity ceases. This also applies if he or she returns to Sweden after having left Sweden.

Section 7 If the agreement contains a provision that inunWlity shall be less extensive than stated in Sections 5 and 6, that provision applies instead.

Section 8 To the extent that it has been agreed under an international agreement that is binding on Sweden, the provisions in Section 5 to 7 concerning immunity apply also to a person deprived of liberty who has been transferred to Sweden in accordance with Chapter 4, Sections 29 or 31.

Secrecy

Section 9 Access to infonnation in matters concerning legal assistance is restricted according to the Secrecy Act (1980:100).

Exemption from banking secrecy

Section lOA person who is under an obligation to observe secrecy according to Chapter 1, Section 10, first paragraph of the Banking Business Act (1987:617), Chapter 1, Section 8, first paragraph of the Securities Business Act (1991:981) and Chapter 1, Section 5 of the Financing Operations Act (1992:1610) may nonetheless provide infonnation in matters concerning legal assistance relating to examination in conjunction with preliminary investigations in criminal matters or search of premises and seizure.

Sharing of confiscated property between states

Section 11 The Government may decide that property or its value that is confiscated by a Swedish order that has entered into final legal force shall completely or partially be transferred to another state that during the

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preliminary investigation or trial has provided Sweden with such legal assistance as is referred to in this Act or that in another way has provided infonnation or support that has been of significance for investigating the offence.

Section 36 of the Act on International Co-operation in the Enforcement of Criminal Judgments (1972:260) includes provisions on the transfer to another state of confiscated property.

Reimbursement of costs

Section 12 The Government shall issue rules that particular costs for measures that have been executed according to this Act, may be recovered from the requesting state.

Rules on implementation and announcement

Section 13 The Government shall issue more detailed rules on the implementation of this Act and will announce the international agreements that are referred to in this Act.

This Act enters into force on 1 October 2000 By this Act, the Act on the use of Certain Coercive Measures on the Request of a Foreign State (1975:295) and the Act with Certain Provisions on International Co-operation in the Field of Criminal Matters (1991:435) are repealed.

SIDA 10

16

NATIONAL REPORT

FOR

SPAIN

by Francisco Javier Gonzalez IBANEZ, Chief Inspector of the Spanish National Police, Judicial Police Headquarters

1. The organisation of the fight against corruption at a national level.

a) General Policy

a.1. What general policy does your country have towards corruption?

The so-called economic crime, parallel to the industrial and commercial development in Spain, is increasingly significant and, as a result, the public institutions have adopted both preventive and repressive measures in order to counter this phenomenon, closely linked to organised crime, since these offences, which very often require a complex perpetration and result in millionaire frauds, cannot be committed without existing a criminal support structure.

Corruption, which as such a word has not a "nomen iuris" or a legal definition in the Spanish laws, is an attack to the key principles in which the action of the Civil Service is based, since it is aimed at an illicit and immoral private enrichment, through civil servants or officials' misconducts, who commit one or several criminal offences by taking advantage of their post and causing a serious damage to the civil service goals.

In Spain, it is fully acceptable the definition of the Article 8 of the United Nations Convention against the Transnational Organised Crime, in the year 2000:

"The promise, prOVision or granting to a civil servant, directly or indirectly, of an illegal profit that will be to his own or other person or institution's advantage, in order to make him act or not, in accordance to the performance of his official functions. The requirement or acceptation by a civil servant, direct or indirectly, of an illegal profit that will be to his own or other person or institution's advantage, in order to make him act or not, in accordance to the performance his official functions"

Generally, the damages which are caused are triple, with a serious danger of disruption of the Rule of Law: a) Large economic losses for the Ministry of Finance and for individuals. b) Loss of prestige for the Institutions. c) Disturbance of the peace and government of the community.

In Spain, from a preventive point of view, there are some mechanisms to purify the public and private markets, such as:

The Central Consulting Council for Contracts with the Civil Services, a Register of bidders and the Public Contracts Act of 16 June 2000, and a subsidiary regulation. These are Agencies and a legilation which aim to make a prophylaxis as for the purification of the supplies and the public works.

1

Unfair Practices Court, which imposes administrative sanctions for the unfair actions against the free competition of the economic operators, and the abuse of privilege or power, regulated in the Restrictive Practices Act of 17 July 1989 (modified by the Act of 28 December 1999) .

The Spanish Securities and Exchange Commission, which is in charge of the supervision and inspection of the securities markets and the activity of all the individuals and legal persons involved in the traffic of securities and, in the same way, it has the power to impose sanctions to them. It also ensures the transparency of the Stock Exchange, the correct formation of prices in it and the protection of the investors. It advices to the Government, and it has a complementary regulatory capacity (Securities Market Act, of 28 July 1988, modified by the Act of 16 November 1998).

Office of the Comptroller for the Social Security is in charge of the auditing, the prevention, the accounts and statements analysis, and the control of all the Management Agencies of the Social Security. (Order in Council of the Office of the Comptroller for the Social Security, organisational structure and competences, of 4 November 1998).

Office of the Comptroller of the Goverment Administration carries out the auditings and the general financial control of all the Goverment expenses and payments (General Budget Act of23 September 1998).

Accounting and Auditing Institute is an autonomous agency of the Department of Economic Mfairs (founded by the Act 12 July 1988). Its main functions are: the control and discipline of the performance of the Accounts Audit activity, as well as the establishment of an Official Register of Account Auditings, the exams testing professional skills to be auditors, the implementation of the power to impose sanctions to the auditors, the development of the correct aplication of the General Accounting Plan and the International Cooperation concerning accounting and auditing issues.

The Court of Exchequer. Once the budget has been executed and, by delegation of the Parliament, it proceeds with the examination and checking of the Government General Account and, in particular, the contracts concluded by the Civil Services, the variations in the Estate Lands and the credits. It reports the responsabilities which possibly has been incurred. It is in charge of the accounting procedure, independently of the penal, civil, labour or administrative jurisdiction. (Statutory Law of the Court of Exchequer, 12 May 1982).

Central Bank of Spain puts the Financial Institutions under a special system of administrative supervision whioh is stronger than that of the remaining economic sectors which, due to the social impact of the banking sector that needs an authority which limits the possible ilegal practices and penalizes them. Functions that are centred in the Central Bank of Spain (Discipline and Intervention of Credit Associations Act, 29 July 1988).

General Administration for Inspection, Simplification and Services Quality. Agency of the Civil Service, that promotes, coordinates and designs the tasks of the various ministerial departments as regards the incompatibilities of the Civil Servants and Senior Officials, as well as, in general, determines the criteria for the establishment of ministerial inspection programs.

2

, Other descentralized Civil Service Agencies and of several Institutions, such as the Spanish Private Banks Association, the National Commission for the Prevention and Money Laundering, Bar Associations, Professional Associations of Attorneys and Solicitors, Realtors, Registrars of Mortgages and Commercial Agents, etc, which have competences, in their respective fields, to purify misconducts, as they are against the deontological rules.

From a repressive point of view, the prosecution of crimes related to corruption is carried out by:

Territorial Courts of Law and the National Criminal Court, localised in Madrid and with jurisdiction all over Spain, which knows about frauds and practices aimed to change the price of things which have or may have a serious impact in the security of the commercial trade, in the national economy, and cause a detriment in the estate of most people in the territory on more than one (Provincial) Criminal Court (Statutory Law of the Judiciary)

Special Corruption Prosecutor's Office. It has extensive powers, in the whole national territory, to investigate the crimes related to corruption, when they are very significant. It is dependent on the Solicitor General (Act of 24 April 1995, on the Foundation of a Special Corruption Prosecutor's Office). It has a multidisciplinar nature, since it is composed by Judicial Police Specialized Units, Inspectors of the Spanish Tax Administration Agency (Inspectors of taxes) and Inspectors of the Office of the Comptroller of the Goverment Administration, mentioned above. It takes action in the pre-procedural enquiries as well as in the committal proceedings, and in the plenary session or oral proceedings, with the further appeals which could be made.

Spanish National Police. Judicial Police Headquarters. Judicial Police, with a civil and urban nature, which investigates the offences related to the organised, economic, financial and technological crime, and to the money laundering and gambling (Order in council, 28 July 2000, on the Ministry of Interior Structure).

Civil Guard. Information and Judicial Police Headquarters. Prosecution and Borders Headquarters. Judicial Police with a military and rural nature, which investigates the smuggling crimes and other ones such as financial/economic offences within their territorial regIOns.

a.2. Do you consider this policy satisfactory or not? If not, in your opinion, what are the main deficiencies?

In general terms, the corruption policy and the above mentioned preventive and repressive instruments are suitable, but there is a lack of specialized human resources and technical . devices. The strict legislation regarding the personal data protection does not contribute to facilitate the police enquiries. On the other hand, the imprisonment sentences for the economic crimes, in general, are short and they are always oriented, by constitutional order, to the rehabilitation and social reducation. For this, the dissuasive effect of the penalty can be considered by the criminal as acceptable, as opposed to a multimillionaire profit.

3

r

b} Statistics

b.i. To what extent and from which sources are stadistical data available concerning: Corruption International co-operation in corruption cases The link between corruption and organised crime The link between corruption and money laundering

The existing police statistics are those of the commission of several offences concerning corruption. Howerver, it has been noted frecuent links between corruption, organised crime and money laundering.

The international co-operation with regards to corruption follows the usual methods of transnational figtht against the organised crime:

• EUROPOL • INTERPOL-OIPC • LIAISON OFFICERS • SIRENE/SCHENGEN • Rogatory commisions, Extraditions, etc.

There are not numerical data available on the impact of this international technical co­operation in corruption, which, in future, will be more fluid and stronger.

b.2. Can you provide these data? If they are not available, can you make an estimation?

. The statistical data on known crimes committed all over Spain, during 1999 until August 2000, are enclosed separately.

Equally, it is enclosed an assessment of assets seized by the Spanish Police, during 1998 and 1999.

c. Repressive legislation

c.l. Which types of behaviour can be sanctioned as forms of corruption (bribery, trading in influence, ... )? Active andlor passive corruption? In the public and lor the private sector?

Crimes against Spanish and European Union Finance. They consist of defrauding the public european, national, regional and local Finance, evading taxes or enjoying financial benefits, when the evaded amount, in the case of the Spanish Finance, is more than 15 million peseta, and in the case of the general budgets of the European Community, the illegaly obtained amount is more than 50,000 Euro. In the same way, it is considered a crime to defraud the Social Security in more than 15 millions peseta.

4

Breach of trust crimes. The Authority, Civil Servant, Judge or Magistrate who, on purpose, adjudicates an unfair decision.

Crimes of smuggling, importation or exportation of merchandises of legal trade, to an equal or higher value of 3,000,000 peseta, without fulfilling the legal requirements, and other commercial transactions with goods whose selling is controlled by the Goverment or prohibited, cultural goods, protected flora and fauna, etc.

Insiders crime or misuse of insider trading, that is, those who make use, by themselves or by a third party, of some relevant information for the quotation of any kind of securities or negotiated instruments in some organised, official or recognised market, to what they have had confidential access on the occasion of performing their professional or business activity, or provides this information to obtain for theirselves or a third party, an economical profit higher than 75 million Peseta or causing a damage of the same amount.

The insider trading crime lower than 75 million Peseta is sanctiones as an administrative offence.

Misappropiation of public funds. It is defined as the Authority or Civil Servant who, with profitable purposes, embezzles funds of which he is responsible or uses them for purposes outside the Civil Service.

Legal frauds and exactions. It is sanctioned the Authority or Civil Servant who, participating because of his position in any of the forms of Public Contract, either came to an agreement with the concerned persons or used any other device to commit a fraud, or demanded illegal rights or rates.

Exercise of undue influence. The civil servant or Authority who has influence upon other civil servant or Authority, by taking advantage of his position or other situation derived from his personal relations to this or other civil servant, in order to obtain an adjudication which results in an financial profit for himself. They are responsible of the same crime the individuals who have influence upon a civil servant, by taking advantage of any personal situation, in order to obtain a profitable adjudication, or who required to third parties some presents or other remuneration to perform these types of behaviour.

Bribery. The Authority or civil servant who, in his own or other person favour, requires or receives, by hisself or by a third person, a present or accepts an offer or promise to take, in the holding of his office, an action or omission which could be considered as a crime. The Authority or civil servant who, in his own or other person favour, requires or receives, by hisself or by a third person, a present for executing an act concerning the holding of his office. Equally, those who corrupt or try to corrupt the authorities or civil servants by means of presents, offers or promises.

Negotiations prohibited for civil servants. These mean the negotiations carried out by the authorities or civil servants, who, having to inform, in accordance to their position, in any kind of contract, matter, operation or activity, take advantage of this circumstance to force or facilitate their participation, directly or by a third party, in these negotiations. This crime extends to the authorities or civil servants who use a secret that they know because of his position, in order to obtain an economical profit, and to those who carry out some permanent

5

or eventual professional/advising actIvIty, under the control of private institutions or individuals, concerning any matter in which they must participate or have participated because of their position, or in matters that are attended, reported or decided in the Office or Management Agency to which it has been destined.

Corruption crimes in the international business transactions. Those who corrupt or try to corrupt (by means of presents,. offers or promises) foreign authorities or civil servants, or from other international organizations to obtain a benefit for them or a third party, or those who meet their requests concerning this issue; in order to make them take . action or not, in accordance to the civil service, to obtain or maintain a contract or other illegal benefit in the international financial activities.

Practices in order to change the price of things. Those who request presents or promises for not participating in a public tender or auction; those who try to keep away from these to the bidders by using threats, presents, promises or any other means; those who come to an agreement in order to change the price of the auction; those who break or leave the auction after obtaining the sale.

Bankruptcy involving criminal negligence. It deals with some behaviours that exceed the mercantile bankrupcy and come into the field of the criminal law. For instance, that person who makes a concealment of assets to the detriment of his creditors, or that person who performs any act of using the estate or of generating capital debentures, which delays, makes difficult or hinders the efficacy of an embargo or a compulsory, judicial, extrajudicial or administrative proccess which has been initiated or is going to be initiated. Furthermore, those persons, who are adjudicated bankrupt, bankruptcy proceeding or cease payments, and aggravate, on purpose, the economical crisis situation to the detriment of the creditors. In the same way, it is considered as a bankruptcy insolvence offence to provide false data concerning the balance sheet in order to obtain illegaly, in a judicial proceeding, the adjudication of bankrupt, bankruptcy proceeding or the cease of payments.

Crimes of Company Partners. They are crimes recently created and tipified in the Penal Code of 1995 to penalize the administrators of a company that counterfeit the annual accounts or other documents which must reflect the company economic situation, in order to cause an economical detriment of this company, some of its partners or a third party; or those who, taking advantage of their majority in the Shareholder's meeting, impose unfair agreements, in order to gain a profit and to cause a detriment to the remaining partners, which do not benefit the company; or those that impose or take advantage, in order to gain a profit and to cause a detriment to the company and some partners, of an injurious agreement adopted by a false majority obtained by abusing of the blank signature or other illegal device; or the administrators who, without a legal reason, deny or hinder a partner from using his right of information, participation or management of the social activity, or his preferential application for shares; or when these administrators deny or hinder the action of persons, agencies or inspection institutions of the Community; or the administrator or partners who, taking advantage of their position, misuse the company assets or incur of liabilities in their own favour.

Crimes related to the market and consumers. Price fixing. They include the conducts concerning the disclosure of company confidential information or the seizure of written or electronic documents, as well as the withdrawal of raw materials or primary commodities

6

, from the market in order to force a change of the prices; they also include deceitful advertising of products or services with false assertions or doubtful features which go beyond the administrative offence on false advertising; or those who alter the automatic devices of providing products or services, to the detriment of the consumer; or those who try to alter the market prices that should result from the free competition of products, by means of the dissemination of false information, using insider trading or threats or fraud.

As it can be noted, the active and passive forms of corruption and certain practices in the private and public sectors, are penalized.

c.2. Are those legal provisions only applicable if national are corrupted or is their scope of application more extensive (foreigners, members of international organisations, ... )?

The scope of application is extensive. It includes the crimes commited by foreigners and, even, the corruption of foreign officials or officials of international organisations.

c.3. Which sanctions can be imposed (imprisonment, fine, confiscation, deprivaton of . rights, administrative sanctions, blacklisting, ... ?

Imprisonment, particular disability from public office, profession, occupation, fine, suspension of the activities of a company, firm or office, closing of the premises opened to the public, and deprivation of the right to contract with the public administrations.

cA. To whom are these legal provisions applicable (physical persons and/or legal persons)?

To the physical personas that operate directly or as administrators of a legal person, or on behalf of other person, or rerpresenting him legally or voluntarily.

The legal persons can be suspended of their activities.

c.5. What is the territorial scope of application of the provisions?

They have the scope of the Spanish jurisdiction, that is, they include, in principle, all the crimes commited within the Spanish territory.

c.6. Does the law contain particular provisions relating to the burden of proof in corruption cases (Reversal, division, protection of whistleblowers ... ?

It doesn't contain particular provisions for theses economic crimes, but, as in other types of serious crime, it is possible to apply the burden of proof (that which results fron several truthful peripherical indications which are interrelated) and the legislation concerning the protection of witnesses when they are in danger. The Spanish Constitution prohibit the inversion of the burden of proof.

7

c. 7. Do you consider this legislative framework satisfactory? If not, in your opinion, what are the main problems?

Yes, I think it is satisfactory but, sometimes, the behaviours which determine the penalty need to be complemented with the Commercial Law, the Administrative Law, the Common Law and the Labour Law, and this make it complex, so that criminals could take advantage of that and could design operations of "financial engineering" in order to conceal the offence or their profits.

d. Preventive measures

d.l. What kind of preventive measures exist in your country (auditing standards, financial disclosure obligations, codes of conduct)?

It has been responded in the first part of the questionnaire.

d.2. Do you consider this legislative framework satisfactory? If not, in your opinion, what are the main deficiencies?

In general it is satisfactory, since the liberty and legal security principles do not allow suppressing the economic activity for a exhaustive prevention.

e) Structures

e.l. Has your country established specialized services specifically assigned with the combat against corruption? If so, what are the institutional context, the composition and the powers of these services?

Yes, in the fiscal scope, it was established III the year 1995 the Special Corruption Prosecutor's Office.

This Special Corruption Prosecutor's Office intervenes when the economic crimes interact with the corruption and reach a certain importance.

The Prosecutor's Office by operation of law, for accusation of individuals or of the Government Administration can start inquiry proceedings for the clearing of the facts.

If the investigated matter is punishable, the Prosecutor's Office follows it during the phase of the penal process (judicial instruction and oral proceedings as public accusation).

It has access from their own authority to the National Databases of taxes, of transactions with foreign countries, payments, collections, proprietorship register and files with personal data of the citizens.

It works in coordination with the OLAF for investigations of frauds to the financial interests of the European Union and it has prosecutors assigned for the regions.

8

In the police scope, although there are not specific units against the corruption; there are, however, units against the economic crimes that include those of that nature.

The General Directorate of the Police has a Brigade of Internal Matters for the demand of responsibilities to the staff of the National Police Agency with respect to the Deontological Police Code and a Unit of Judicial Police attached to the Corruption Prosecutor's Office mentioned above.

The Judicial Police Headquarters of the General Directorate of the Police also has:

A Unit of Judicial Police attached to the National High Court with competences all over the country in some crimes of corruption.

A Squad of Economic and Financial Criminality with the following Operative Sections:

411 Money Laundering 411 Tax evasion It Financial and Bank Frauds 411 Frauds against the Social Security

A Squad of the National Historical Heritage for the repression of the traffic of cultural goods.

A Squad of Investigation of Financial Crimes attached to the Executive Service of the National Commission for the Prevention of Money Laundering (Unit of Spanish Financial Intelligence-FIU-).

An Unit of Investigation of the Crimes related with the Technology of the Information that includes the "cybercrime" and the frauds with new technologies.

The National Central Office of Interpol and the National Unit of Europol, for the technical cooperation in the respective areas of Criminal Police International Organization and of Police European Office.

A Central Gambling Service that controls the investments and fraudulent transactions in casinos and gambling houses.

A National Center of International Communications that receives and processes all the police communications from and to abroad (Interpol, Europol, Liaison Officers, Drugs. Central Unit, etc).

e. 2. Do you consider this structural framework satisfactory? If not, in your opinion, what are the main problems?

Yes, since they would no be profitable the creation of multiple national offices against the corruption disconnected from the rest of the units of fight against the economic crimes.

9

2. International co-operation regarding corruption

a. Supply

a.t. To what extent can your country offer international co-operation in corruption cases (exchange of police information, mutual assistance in criminal matters,

d' , )? extra Itwn,... .

Spain works side by side with the international agencies for the fight against the corruption (United Nations, Council and Commission of the European Union, OECD, GAFI, Council of Europe, (GRECO), OIPC-INTERPOL, EUROPOL, etc. and with the countries that request help or assistance.

a.2. Who should the applicant apply to?

Any information or service can be requested to the NATIONAL CENTER OF INTERNATIONAL CO:MMUNICATIONS (CENCI), General Directorate of the Police -Spain)

CI Julian Gonzalez Segador, Sin 28043-MADRID Tel.:: +3491 5822900 Fax. : + 34 91. 5822980 Cenci@dgp.mir.es

a.3. Which particularities should the applicant be aware of when requesting cooperation from your country?

There are no particularities or special reservations for the international cooperation.

aA Which (legal and factual) obstacles do, in your opinion, hamper an efficient cooperation in practice. Which practical remedies can you suggest?

The offered examples of: bank secrecy, double incrimination, language, plicy priorities are not really obtacles except for that of double incrimination.

But even in this supposition of double incrimination, to the exception of certain fiscal cases, it is a common policy to include the corruption as a crime.

b) Demand

b.t. What are your expectations when you request co-operation from another country in a corruption case?

Reciprocity in the investigation work

10

b.2. To what extent are these expectations met?

As regards to the framework of liberty, security and justice of the Fifteen, the prospects are good (Treaty of Amsterdam, Eurojust, Plan of Action in the fight against the organized crime, etc).

As for the so called "tax heavens", off-shore countries and non cooperating territories in the fight against the money laundering, the collaboration doesn't still reach the desirable levels.

The new electronic banking "on line" along with the free movement of capitals can cause problems when identifying the person who -places the order and the receiver.

b.3. Which are the main problems and how can this be solved?

The economic crime is increasingly better finantial device to conceal the money from corruption, and for this reason it is convenient:

e To make fluid the international exchange of police-judicial information which, sometimes, is too slow. e Increase the policy of police international cooperation which, sometimes, is not so significant as it shoud be. 411 To establish parallel channels of police and judicial cooperation, so that the whole known intelligence can be used as "burden of the proof' in the judicial proceeding.

11

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SPAIN

TRANSLATION OF LINGUISTIC TERMS RELATED TO THE OFFENCES APPEARING IN THE ENCLOSED SHEET.

KNOWN OFFENCES, CLARlFIED AND NUMBER OF DETAINEES NATIONWIDE BY = ( Delitos conocidos esclarecidos y detenidos a mvel nacional por: .

THE POLICE AND TIlE CIVIL GUARD. -= Cuetpo Nacional de Policia y la Guardia Civil) .

;

A) Against the property and the social-economical order -= Contra el Patrimonio y el orden socioecon6mico.

B) Falseness/lies:;;; Falsedades

C) Against the Public Administration = Contra 1a Administracion Publica

A-I ... Misappropiation "" Apropiacion indebida

A·2"" Punishable Insolvency"" Insolvencia punibIc

A-3 "" Price alteration (Auction t Contracts of Public Offers) "'" Alteracion de precios, subastas, concursos

A~4 = Against the intellectual and industrial property = Delitos contra Ia propiedad intelectual e industrial.

A-S .... Offenses related to the market and I or consumers -= Delitos relacionados con el mercado y los consumidores.

A-6 "" O~enses against companies and firms = Delito societario

A-7 "" ~eiving and similar behaviour patterns ;; Receptacion, y conductas afines

A ~8;: ~oney Laundering"'" Blanqueo de capitalelll

15. NOV. 2000 10:55 GTE DESPACHO 00 34 91 5822310 P. 11 . .

9 =: Against the Public TreasUl')' and the Social Security "" Contra la Hacienda Publica y la Seguridad Social.

B-IO == Money counterfeiting, forgery of credit cards, traveller checks and other items = Falsificaci6n de moneda, tarjetas de credito, cheques de viaje.

B-II ~ Forgery of the national identity document (::: DN! in spanish), and forgery of passports. Falsificaci6n del DN! y de pasaportes.

B-12 == Forgery of other documents = Falsificaci6n de otros documentos

C-l3 :dprevarication "" Prevaricaci6n.

C-14 "7 Unfaithfulness in the custody of documents "" Infidelidad en la custodia de documentos.

C-1S =;Bribery =: Cohecho.

C-16 = Influence trading == Trifico de Influencias.

C-17 ;;;; :Embezzlement ( malversation) = Malversaci6n.

C-18 "'" ;Frauds, illegal exactions "'" Fraudes I Exacciones ilegates.

C-19 "" forbidden negotiations and abuses =: negociaciones prohibidas y abusos. I

NATIONAL REPORT

FOR

SLOVENIA

By Ljubomir JOVANOVIC, Ministry of Interior, General Police Directorate, Head of Section for Organised Crime,

1. The organisation of the fight against corruption on the national level

a. General policy

a.1. What general policy does your country have towards corruption (is it an issue or not; focus on repression and/or prevention, ... )?

In Slovenia we do not have an official policy for the repression of corruption, although in 2000, due to doubts concerning the relevancy of the statistical data on the spread of corruption and the need for specialization in the police, we have established the first specialized units for the fight against this phenomenon. These units have been devised as the beginning of the setting up of an anti-corruption system. So far these units have been operating within regular police forces and there are no special rules regarding their equipment, resources and personnel that would deviate from rules and principles of the operation of the police normally in force.

Within the Public Prosecutor's Office, Group of Public Prosecutors for Special Tasks operates, which deals only with the most serious forms of organized crime, including corruption. This group, which operates in the area of the whole country and has its seat at the Public Prosecutors Office of the Republic of Slovenia, only employs prosecutors - volunteers, who have to meet certain stricter criteria. The group has sufficient resources and equipment available for their work.

In the Slovenian judiciary there are not specialized courts or their units for the fight against corruption." Likewise, Slovenia does not have any institutions that would deal with corruption outside the law enforcement agencies and the justice system.

Briefly we could say that in Slovenia no irregular or special principles, rules and norms apply for the authorities dealing with the repression of corruption as regards the means for their operation.

a.2. Do you consider this policy satisfactory or not? If not, in your opinion what are the main deficiencies?

Such situation is not satisfactory. Petty corruption often goes unnoticed in society or is even looked at as traditional or customary in certain areas, vocations, businesses, etc. Corruption appears more rife in certain vocational groups, positions in organisation, individual roles and activities. Self-regulation is at a low level or just starting. The last ten years have witnessed many codes of conduct appearing among professional groups, companies, and organisations

1

but the rules established are often not obeyed by anyone. Certain principles in them are non­realisable and corruption is not always mentioned at all. Codes of conduct are not always present in organisations or, where existing, employees are not aware of them ant there is nobody to implement them. Whistleblowers are too few in number and there is no protection offered them even under the law. The main problem appears to lie in lack of education both of people in position and students. Ethics should be compulsory subject in schools and management training courses. Institutions are ill equipped to join international networks promoting business ethics in all areas of public life. Systems of internal controls and audits are weak, there is no regular and unanticipated rotation of officials. Those who are caught or suspected of corrupt activities are not curtailed from lucrative second career oportunities. And in mine opinion specialised bodies in police and public prosecutors still do not have administrative authonomy which would schield them from political interference, while guarding at the same time against possible corruption and political manipulations by them.

b. Statistics

b.t. To what extent and from which sources are statistical data available concerning: - corruption - international co-operation in corruption cases - the link between corruption and organised crime - the link between corruption and money laundering?

b.2. Can you provide these data? If they are not available, can you make an estimation?

The Republic of Slovenia does not have the defmition of corruption laid down in its regulations or in its theoretical literature. As criminal offences of corruption we process 7 criminal offences, which are regarded as corruption in the narrow sense of the word. Statistically those offences do not represent a big problem and no serious increase can be perceived long term, although general data on the total number of all criminal offences in Slovenia do indicate their increase. Below we are listing statistical data on the number of criminal offences of corruption detected in Slovenia from 1991 and for comparison also the total number of all criminal offences in the same period as well as their clear-up rate.

Year %)

1991 1992 1993 1994 1995 1996 1997 1998 1999

Crime. offences of corrup.

21 39 51 55 35 32 19 33 56

All crim. offences Clear-up rate (in

42250 54.3 54085 55,5 44278 57,5 43635 57,5 38 178 60,4 36587 65,4 37173 64,5 55473 52,9 62836 46,6

2

The number of criminal offences of corruption is very low, which is the very reason for concern. The change of property ownership after the independence of Slovenia - privatization - namely brought along a large number of irregularities detected in the changed property ownership, which has however not been reflected in the increased number of detected offences of corruption. Most probably this is the consequence of very liberal economic legislation and lack of practice.

As regards its structure, corruption does not represent a major problem either - the greatest portion belongs to the so called road corruption - bribing of state officials on the lowest levels (traffic and border police officers, customs officers), yearly we only record a couple of cases where bribing of state officials of a higher rank is involved (so far the highest level has been the fourth rank), and here the most exposed fields are certainly the field of public procurement (especially construction work) and medical care. So far operative data have not given us too big a reason for concern either, as on their basis it can not be inferred that the problem of corruption is great or important.

Already in its basic characteristics corruption is an act that in its most serious forms has all the features of organized crime and is therefore only one of its phenomena. So far Slovenia cannot claim that organized criminal associations who deal with other criminal offences as their basic activities also deal with corruption. It would be more accurate to say that groups of perpetrators that associate in order to perpetrate the offences of corruption increasingly operate according to the principles that apply to organized criminal associations. This is also why we have placed the newly established police units for the fight against corruption within wider units dealing with the repression of organized crime. Namely, the methods, means, procedures and way of the fight against both phenomena are identical and their closer connection in future inevitable.

Statistically number of cases where is connection with money laundering and international co-operation are not significant (less than 2 -5 cases per year).

c. Repressive legislation

c.1. Which types of behaviour can be sanctioned as forms of corruption (bribery, trading in influence, ... )? Active and/or passive corruption? In the public and lor the private sector?

c.2. Are those legal provisions only applicable if nationals are corrupted or is their scope of application more extensive (foreigners, members of international

. t' )? orgamsa IOns, ... . c.3. Which sanctions can be imposed (imprisonment, fine, confiscation measures,

deprivation of rights, administrative sanctions, blacklisting, ... )? cA. To whom are these legal provisions applicable (physical persons and/ or legal '

persons)?

In the Slovenian legal order there are, after last amendments, seven criminal offences of corruption laid down in the Penal Code (the Official Gazette of the Republic of Slovenia, no. 63/94 and 23/99 - hereinafter referred to as OG RS), which cover unjustified acceptance and giving of gifts in the performance of economic activity, acceptance of bribe by official persons and giving of bribe to official persons, acceptance of bribe at the election or ballot,

3

influencing free decision-making by the voters by bribing and trading in influence. Below we quote the legal wording of the mentioned criminal offences of corruption:

Unjustified Acceptance of Gifts (Art. 247)

(1) Whoever, in the performance of economic activity, requests or agrees to accept a disproportionate award, gift or any other benefit in order to neglect the interests of an organization or to cause damage to the same when concluding a contract or performing a service, shall be punished by a fine or sentenced to imprisonment for not more than three years.

(2) The perpetrator of the offence under the preceding paragraph of the present Art., who requests or agrees to accept a disproportionate award, gift or other benefit for himself or any third person in exchange for making a contract or performing a service, shall be sentenced to imprisonment for not more than three years.

(3) The perpetrator of the offence under the first paragraph of the present Art. who requests or agrees to accept an award, gift or other benefit, shall be sentenced to imprisonment for not more than one year.

( 4) The accepted gift or award shall be seized.

Unjustified Giving of Gifts (Art. 248)

(l) Whoever gives, attempts to give or promises to give a disproportionate award, gift or any other benefit to a person performing an economic activity with a view to obtaining any unjustified favour in the making of a contract under Art. 247 of the present Code, shall be sentenced to imprisonment for not more than three years.

(2) Whoever gives, attempts to give or promises a disproportionate award, gift or other property or non-material benefit to a person performing an economic activity in exchange for making a contract or performing a service shall be sentenced to imprisonment for not more than one year.

(3) If the perpetrator under the preceding paragraphs declares the offence before it was detected or he knew it had been detected, his punishment may be remitted.

(4) The given award or gift shall be seized, while in the case under the preceding paragraph the same may be returned to the person who gave it.

Acceptance of Bribe (Art. 267)

(1) An official who requests or agrees to accept a gift or other favour or who accepts the promise of the same in order either to perform an official act within the scope of his

4

official duties which should not be performed or not to perform an official act which should or may be performed, shall be sentenced to imprisonment for not less than one and not more than five years.

(2) An official who requests or agrees to accept a gift or other favour or who accepts the promise of the same in other either to perform an official act within the scope of his official duties which he should or may perform in any case or not to perform an official act which he should not perform in any case, shall be sentenced to imprisonment for not more than three years.

(3) An official who requests or accepts a gift or other favour with respect to the performance of the official act under the first or second paragraphs of the present Art. after the official act is actually performed or omitted, shall be punished by a fine or sentenced to imprisonment for not more than one year.

(4) The accepted gift shall be seized.

Giving of Bribe (Art. 268)

(1) Whoever gives, attempts to give or promises a gift to an official in order for him either to perform an official act within the scope of his official duties which should not be performed or not to perform an official act which should or may be performed, or whoever serves as an agent for the purpose of bribing an official, shall be sentenced to imprisonment for not more than three years.

(2) Whoever gives, attempts to give or promises a gift to an official in order for him either to perform an official act within the scope of his official duties which he should or may perform an any case or not to perform an official act which he should not perform in any case, shall be sentenced to imprisonment for not more than one year.

(3) If the perpetrator under the previous paragraph had declared such an offence before it was detected or he knew it had been detected, his punishment may be remitted.

(4) The give gift shall be seized while in the case of the preceding paragraph the same may be returned to the person who gave it.

Trading in Influence (Art. 269)

(1) Whoever accepts a gift or any other favour in order to use his official or social rank and influence to intervene so that a certain official act be or not be performed, shall be punished by a fine or sentenced to imprisonment for not more than one year.

(2) Whoever uses his official or social rank or influence to intercede either for the performance of a certain official act which should not be performed or for the non­performance of an official act which should be performed, shall be punished to the same extent.

5

(3) If the perpetrator accepts any gift or other favour in exchange for his intervention, he shall be sentenced to imprisonment form not more than three years.

(4) The above mentioned gift shall be seized.

Acceptance of Bribe at the Election or Ballot (Art. 168)

(1) Whoever requires or accepts any award, gift or other material or non-material gain for himself or a third person for voting or not voting, or for casting his vote in favour of or against a certain proposal, or for casting an invalid vote, shall be punished by a fine or sentenced to imprisonment for not more than one year.

(2) The accepted award, gift or other material or non-materiaLgain shall be seized.

Obstruction of Freedom of Choice (Art. 126)

(1) Whoever, at an election or ballot, compels another person to vote, or not to vote, or to cast a void vote, or to vote in favour of or against a particular proposal by means of force, serious threat, bribery, deception or in any other unlawful manner shall be punished by a fine or sentenced to imprisonment for not more than one year.

(2) If the offence under the preceding paragraph is committed by an official through the abuse of his function relating to the election or ballot, such an official shall be sentenced to imprisonment for not more than two years.

(3) The bribe which has been given shall be seized.

In order to understand the legal description of the mentioned criminal offences, Art. 126 of the Penal Code is also very important as it defines the concept of an official, of economic activity and of election or ballot.

According to this Art., an official may be:

1) a representative in the State Chamber and a member of the State Council; 2) any person carrying out official duties in the state bodies or exercising a public

function; 3) any other person performing official duties authorized by virtue of law; 4) a member of the military appointed under special regulations regarding special

criminal offences which involve military personnel but which are not prescribed as criminal offences against military duties;

5) a person with official status accorded by a foreign state and who meets the conditions under items one, two or three of this paragraph;

6

6) a person with official status accorded by an international organization whose member is also the Republic of Slovenia, and who meets the conditions under items one, two or three of this paragraph;

7) a person performing the duty of a judge, prosecutor or another official duty or function at the international court whose jurisdiction is acknowledged by the Republic of Slovenia.

"Economic activity" means the production and trade of goods, the performance of market activity, banking and other operations, and management services as well as participation in the management, representation and supervision of the above mentioned activities, while elections, ballots and voting mean presidential, parliamentary and municipal elections as well as referenda on the adoption of legislation, the confirmation of amendments to the Constitution and the establishment of a municipality.

It can be seen from the above text that the Penal Code covers both active (with the exception of trading in influence) and passive forms of criminal offences of corruption, which comprise the operation of domestic and foreign officials as well as authorities performing economic activities, regardless of whether those authorities are domestic or foreign. Bribe as a subject of a criminal offence is envisaged as a property and non-property benefit, and in this regard both the permitted and non-permitted acts by officials are punishable, including official acts of discretion.

Slovenia has already ratified the Criminal Law Convention on Corruption, while the Civil Law Convention on Corruption and the OECD Convention on the Repression of Corruption in International Business Transactions are in the signing procedure.

Legal persons are held responsible for all criminal offences of corruption, except for the criminal offences under Art. 168 (Acceptance of Bribe at the Election or Ballot) and Art. 267 (Acceptance of Bribe), due to their special nature. Namely, the Republic of Slovenia and local self-government units as legal persons are not held responsible for criminal offences and the right to vote is a right that only applies to natural persons. Legal persons are also held responsible for the criminal offence of money laundering.

The liability of legal persons for criminal offence is governed by the Liability of Legal Persons for Criminal Offence Act (OG RS, no. 59/99).

c.S. What is the territorial scope of application oHhe provisions?

The rules determining applicability of the Penal Code are defined in its Chapter 13. In accordance with this chapter the Penal Code is applicable to every person who commits a criminal offence in the territory of the Republic of Slovenia. Likewise, it can be applied, on certain conditions, also for the offences of corruption committed abroad both by domestic nationals and foreigners against the Republic of Slovenia and its national or against a foreign country and a foreign person.

The legal wording of the provisions governing the applicability of the Penal Code in the case of criminal offences mentioned in the answer to question 2.1 is as follows:

7

Applicability to Persons for Criminal Offences Committed in the Territory of the Republic of Slovenia Art. 120

(1) The Penal Code of the Republic of Slovenia shall apply to any person who commits a criminal offence in the territory of the Republic of Slovenia.

(2) The Penal Code of the Republic of Slovenia shall also apply to any person who commits a criminal offence on a domestic vessel regardless of its location at the time of the committing of the offence.

(3) The Penal Code of the Republic of Slovenia shall apply to any person who commits a criminal offence either on a domestic civil aircraft in flight or on a domestic military aircraft irrespective of its location at the time of committing of the criminal offence.

Applicability to Citizens of the Republic of Slovenia for Criminal Offences Committed Abroad Art. 122

The Penal Code of the Republic of Slovenia shall be applicable to any citizen of the Republic of Slovenia who commits any criminal offence abroad other than those specified in the preceding Art. and who has been apprehended in or extradited to the Republic of Slovenia.

Applicability to Foreign Citizens for Criminal Offences Committed Abroad Art. 123

(1) The Penal Code of the Republic of Slovenia shall apply to any foreign citizen who has, in a foreign country, committed a criminal offence against the Republic of Slovenia or any of its citizens and who has been apprehended in the territory of the Republic of Slovenia or has been extradited, even though the offences in question are not covered by Art. 121 of the Present Code.

(2) The Penal Code of the Republic of Slovenia shall also be applicable to any foreign citizen who has, in a foreign country, committed a criminal offence against a third country or any of its citizens and has been apprehended in or extradited to the Republic of Slovenia. In such cases, the court shall not impose a sentence on the perpetrator heavier than the sentence prescribed by the law of the country in which the offence was committed.

Special Conditions for Prosecution Art. 124

(1) If, in cases under Art. 120 of the Present Code, the criminal procedure has been initiated or discontinued in a foreign country, the perpetrator may be prosecuted in the Republic of Slovenia only by permission of the Ministry of Justice of the Republic of Slovenia.

(2) In cases under Art.s 122 and 123 of the Present Code, the perpetrator shall be prosecuted:

8

1) if he has served the sentence imposed on him in the foreign country or if it was decided in accordance with an international agreement that the sentence imposed in the foreign country is to be served in the Republic of Slovenia;

2) if he has been acquitted by a foreign court or if his sentence has been remitted or the execution of the sentence has fallen under the statute of limitations;

3) if, according to foreign law, the criminal offence concerned may only be prosecuted upon the complaint of the injured party and the latter has not been filed.

(1) In cases under Art.s 122 and 123 the perpetrator shall be prosecuted only insofar as his conduct constitutes a criminal offence in the country where it was committed.

(2) If, in the case under Art. 122, the criminal offence committed against the Republic of Slovenia or the citizen thereof does not constitute a criminal offence under the law of the country where it was committed, the perpetrator of such an offence may be prosecuted only by permission of the Ministry of Justice of the Republic of Slovenia.

(3) If, in the case under the preceding Art., the criminal offence is not punished in the country where it was committed, the perpetrator may be prosecuted only by permission of the Ministry of Justice and with the proviso that, according to the general principles of law recognized by the international community, the offence in question was constituted a criminal act at the time it was committed.

(4) In the case under Art. 120, the prosecution of a foreign person may be transferred to another country under conditions provided by the statute.

c.6. Does the law contain particular provisions relating to the burden of proof in corruption cases (reversal, division, protection of whistleblowers, ... )?

Only with a partial reform of criminal material and formal legislation in 1999 Slovenia has envisaged the obligation to omit penalties for persons, who co-operate with the justice, and the obligation to protect such persons and some witnesses, but this has not been yet put to practice, so there is no relevant experience in this field. Special programmes for protection, though foreseen in the new Penal Procedure Act, do not exist yet, as well as special services to protect such persons have not been yet founded.

In certain cases Slovenia has protected witnesses and has got to know at such occasions some basic characteristics and requirements concerning such issue. In spite of all it is expected that the number of such cases would increase in future, and which will, taking into account the fact that legal bases are provided and experiences of others avaliable, help in forming the best practises that could be used for all forms and special cases in the field of witnesses protection.

Reversal burden of proof is not possible under our Penal legislation.

9

c.7. Do you consider this legislative framework satisfactory? If not, in your opinion what are the main problems?

Legislative framework is almost sufficient. Main problem are very low penalties ( 5 years of imprisonment for most dangereus form of corruption - acceptance of bribe) and due to that fact very short expireing time for penal procedure.

d. Preventive measures

d.l. What kind of preventative measures exist in your country (auditing standards, financial disclosure obligations, codes of conduct, ... )?

Authorities dealing with corruption in the wider sense (which can be considered as prevention) are the Court of Auditors, the Mandate and Immunity Commission of the National Assembly and the Commission under the Act on Incompatibility of Holding Public Office with a Profit-Making Activity.

There is a high possibility for the Court of Auditors in the course of its work to encounter cases of criminal offences and misdemeanours (including those that could contain elements of corruption or indicate that there is a background of corruption). when an auditor of the Court of Auditors in the course of his work finds out (suspects) that a criminal offence or a misdemeanour has been committed, the Court of Auditors acts in one of the following ways:

notifies the Minister of the Interior about the criminal offence, proposes the institution of a misdemeanour procedure at the competent Misdemeanour Judge, informs in writing the authority that is competent to act against such misdemeanours (competent inspection services) about the misdemeanour or the irregularity, informs the management of the suspected person about the suspicion of a criminal offence or misdemeanour.

In their work the Court of Auditors uses INTOSAI standards and the European guidelines for the implementation of international aUditing standards issued on their basis. The European guideline no. 52 - irregularities, includes guidelines to plan auditing, auditing procedures where there is alleged fraud or other irregularities, and the responsibilities to report on fraud or irregularities. This guideline gives instructions to the auditor on planning, implementation of procedures and reporting on eventual illegalities.

The legal regulation of public procurement and its consistent application can contribute greatly to the prevention of corruption in public sector and in public administration. This is why the Court of Auditors in performing its audits also regularly supervises the granted public orders. It dedicates individual audits to finding out about the regularity of granting public orders.

In the past the Court of Auditors has established a number of irregularities in the field of public procurement. Until 1997 this field was governed by the Governmental Order on the Procedure of Invitations for Public Tenders in Public Procurement, which had substantive deficiencies. In 1997 a new act on public procurement came into force, which regulated this

10

field in detail. This year a new act has been adopted and will come into force in November 2000. It is completely harmonized with the ED acquis and will not bring about any greater substantive changes in the field of public procurement. The Court of Auditors estimates that the situation has substantially improved since the adoption of the act in 1997.

In the procedure of public orders itself, legal security to tenderers is guaranteed, which is carried out by the State Audit Commission for the Audit of Procedures of Granting Public Orders. The work of this Commission greatly affects the regUlarity of the implementation of individual procedures of public procurement, as in the case of established irregularities the commission partly or wholly annuls the procedure of granting the public order.

The Mandate and Immunity Commission is a working body of the National Assembly of the Republic of Slovenia. It is established on the basis of the ordinance on the composition and election of a Mandate and Immunity Commission of the National Assembly of the Republic of Slovenia (OG RS, no. 5/97). The Commission is composed by the president, vice-president and eight members, who are deputies in the National Assembly. The Commission performs work related to confirming the terms of office of deputies, studies questions in connection of the immunity of deputies and judges of the constitutional court and notified the assembly on cases that result in the termination of a deputy's term of office (far example: ifhe is sentenced with a final non-conditional sentence to imprisonment longer than 6 months, if in three years from the confirmation of his term of office as a deputy he has not stopped performing the activity which is not compatible with holding a public office, or if he starts to hold a function or to perform an activity which is not compatible with the function of deputy).

Following the information by the Commission under the Incompatibilities of Holding Public Office with a Profit-Making Activity Act, the Mandate and Immunity Commission proposes to the National Assembly to establish whether a deputy has accepted gifts or gained benefits that affected the performance of his function and to initiate the procedure for the termination of his term of office and/or dismissal in accordance with the constitution and the law.

The Commission under the Incompatibilities of Holding Public Office with a Profit-Making Activity Act is established on the basis of the Incompatibilities of Holding Public Office with a Profit-Making Activity Act (OG RS, no. 49/92 and 50/92). The Commission has been established by the National Assembly of the Republic of Slovenia. It is composed of seven members: the president and four members are elected by the National Assembly of the Republic of Slovenia while two members are elected by the National Council of the Republic of Slovenia. The Commission is established to perform tasks related to the restrictions regarding the performance of a profit-making activity to private ends for persons performing representative and executive function in the national bodies and bodies of local communities (officials) and supervision of their property situation. It decides on matter within its' competence on a session, adopting decisions with the majority of votes of all members.

The Act on Incompatibility of Holding Public Office with a Profit-Making Activity (OG RS, no. 4911992 of 10 October 1992) is one of the fundamental regulations in this field. The provisions of this law refer to all persons who perform representative or executive functions in state bodies and bodies of local communities in Slovenia. It therefore binds the President of the Republic, the President of the Government and ministers, as well as state secretaries and all other officials in the state administration, as well as delegates to both "houses" of the

11

Slovenian Parliament. In addition, it applies also to the mayors of Slovene municipalities and to other officials on a local or regional level.

The Act on Incompatibility of Holding Public Office with a Profit-Making Activity stipulates that during his function an official can not perform a profit-making activity, which under this act is incompatible with his office. An official can not receive gifts in relation with the performance of his office; during the time of his office he can not obtain any advantages that could affect his actions. The prohibition of receiving gifts and obtaining advantages is also in force for the official's spouse or the person he is living with in a joint household, as well as for his children and his adopted children, parents, grandchildren, brothers and sisters living with him in a joint household. An official who performs his office professionally can not perform any profit-making activity during the time of his office that could affect objective performance of his duties that is not influenced by any external factors. An official who does not perform his office professionally can perform a profit-making activity to private ends if this does not affect the performance of his functions and if the nature of the profit-making activity does not affect objective performance of his function. The official has to inform the commission about the data on his financial situation immediately after his office starts or terminates or within one month at the latest. During his term of office the official has the duty to report about his assets every two years and upon the request of the cOITnnission also one year after his office is terminated.

Apart from the Act on Incompatibility of Holding Public Office with a Profit-Making Activity (limitations regarding the performance of profit-making activity to private ends for persons performing representative and executive functions in state bodies and bodies of local authorities and supervision of their financial situation), two other acts are in force: the Court of Auditors Act (OG RS, no. 48/94), which stipulates that upon their appointment the members of the Court of Auditors have to submit a written statements on their financial situation, and the Act on Social Attorney of the Republic of Slovenia (OG RS, no. 69/95), which stipulates that the National Assembly can dismiss a social attorney and his deputy ifhe damages the reputation of the office with his work and his actions.

Supervision of the implementation of the cited provisions is entrusted to a special commission which is founded and operates within the framework of the National Assembly. This collects and analyses above all data on the financial situation of officials and their spouses, who are bound to communicate these to the commission every two years. The cited data, with the exception of salaries which are paid from the budget, are public.

If the commission estimates that an official has received gifts or acquired benefits that affected the performance of his functions, it notifies the body whose member is the official in question or the body that is competent for the election and appointment of the official. If that body establishes that the official has received gifts or acquired benefits affecting the performance of his functions, it initiates the procedure for the termination of his term of office and for dismissal pursuant to the constitution and the law. If on the basis of the data on his financial situation or on the basis of other data the commission establishes that the financial situation of the official and/or of his family members living in the same household as he has increased exceptionally, it has to notify the body whose member if the official or the body that is competent for the election or the appointment of the official. The body that is competent for the election or the appointment of the official can demand such a report from the competent authority at any time.

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The Constitution of the Republic of Slovenia in its Art. 120 stipulates that the authorities of public administration perform their duties and functions independently and pursuant to the Constitution and the law. Judicial protection of the rights and legal entitlements of individuals and organizations against the decisions and acts of the administrative bodies and statutory authorities is guaranteed.

The Act on State Employees (OG RS, no. 15/90, 5/91, 18/91, 2291, 2/91-1, 4/93, 7'/97 and 38/99) in Art. 45 among other stipulates as a serious violation of working obligations (which can also be corruption) an act that means a criminal offence against official duty, another criminal offence perpetrated during work or related to work or perpetrated out of dishonourable impulse or a misdemeanour that affects the reputation of the state authority as well as abuse of position or of authorization.

For the mentioned serious violations of the working obligation the obligatory measure of termination of labour relations is envisaged.

In Art. 27 this Act stipulates that an official employed in a state body, except higher administrative officials (secretary general, state undersecretary, counsellor to the government, undersecretary, assistant head, counsellor to the head, ... ) can, beside his own work, perform activities in economic associations or perform work similar to the one he performs in his office for another body or organization only on the basis of a written permit by his head, except in cases of independent scientific, pedagogical, cultural, artistic, sports, humanitarian or journalist activity. The violation of this provision is listed among the more serious violations of working duties and obligations, where also belong: non-performance, non­conscientious, untimely or negligent performance of work, abuse of position or of authorization, illegal disposing with social means, violation of regulations on the protection of official secrets, act obstructing the customers in exercising their rights and interests at a state body. For some of these violations the mandatory measure of termination of labour relations is envisaged and for others this measure is facultative.

The quoted act in Art. 51 further regulated the liability for damages. An employee has liability for the damages he has caused during his work or in relation to his work in a state body to that state body on purpose or out of gross negligence.

The draft Public Officials Act, which is envisaged to be adopted in 2001, also contains the adoption of an ethical code for public officials. Further, commissions for personnel affairs are envisaged which will decide on employee complaints, while the establishment of the institute of the nullity of the act on the gained position or of the concluded employment contract for individual cases of the most serious violations of legal provisions violating the basic principles and damaging a quality and efficient performance of public functions and by that an adequate level of services to the users. A public official has to act in accordance with the principles of performing public duties and to refuse to carry out orders if by doing so he would commit an anti-constitutional or illegal act. The draft act also introduces the obligation of acting and behaving in the interest of the office. An employee should call the attention of his head, his superiors or the competent inspector to irregularities in the actions of the employees. A new institute in the draft act is also taking of an oath in order to ensure personal suitability and honourability of the performance of public functions and to protect the employer and the public official.

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Slovenia also knows statutory rules and codes of conduct in force for individual professions that are exposed to corruption. Although the provisions of both kinds of instruments are different, the following points in common can be established:

Codes of conduct

Police officers, prosecutors and judges, lawyers, officials in the service for the execution of penal sanctions, tax officials, accountants all have their codes of conduct. Military personnel and politicians so not have their codes of conduct. Codes of ethical conduct ensure the application of the following principles: loyalty, efficiency, effectiveness, integrity, fairness, impartiality, prohibition of discrimination, prohibition of undue preferential treatment for any group of individuals, prohibition of abuse of position, prohibition of receiving of gifts and advantages.

Most codes envisage sanctions in case of violations. Professional associations are usually competent for the pronouncing of sanctions, although such cases rarely occur.

Statutory rules

A number of statutory rules are in force for public officials, prosecutors and judges, and their points in common are: they require substantive argumentation of the decisions taken, they establish responsibility for decisions taken, they prohibit removal or destruction of official property, they prohibit the abuse of, and any illegal manipUlation with, the resources that the office has entrusted to the individuals, they prohibit the abuse of confidential information, they prohibit the receiving of any gifts that would represent for the officials an obligation to return the favour or to grant a special procedure to the donor, they prohibit the unsuitable exploitation of the official position, influence or knowledge, they prohibit gaining financial benefits through activities outside the office, competition clauses (after the termination of labour relations certain professions such as customs officers, police officers, deputies, prosecutors, judges, officials cannot perform for a certain period work similar to what they performed during their office), obligation to protect confidential information also after termination oftheir office, ...

In the case of violations of statutory provisions disciplinary sanctions apply, which are pronounces by the authorities in two instances.

e. Structures

e.1. Has your country established specialised services, specifically assigned with the combat against corruption? If so, what is the institutional context (e.g. established within the police), the composition, the functions and the powers of these services?

In Slovenia there is only one authority that has police powers in detection and prevention of corruption. This is the Police, as an autonomous body within the framework of the Ministry of the Interior. According to Art. 3 of the Police Act one of its tasks is also " the prevention, disclosure and investigation of criminal offences and misdemeanours, the disclosure and

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arrest of perpetrators of criminal offences and misdemeanours, the implementation of searches for wanted persons and their hand-over to the proper authorities". The police is organized on state, regional and local level.

At the state level there is the General Police Directorate, which is divided into a number of Directorates, one of which also being the Criminal Police Directorate. This directorate is composed of sections, one of which is also the Organized Crime section, which comprises 5 smaller units - divisions. One of those divisions is also Corruption Division. The tasks of this division are listed in Point 2.3.3.4 of the Regulation on Organization and Systemization of Working Places at the Ministry of the Interior and the Police, according to which this division "plans, organizes, directs and supervises activities in the following fields:

corruption in state authorities, corruption in authorities and organizations with public authorizations, corruption in obtaining and granting public investment works, investments purchases, concessions, financial subsidies and credits, trading in influence, other crimes of corruption."

At the regional level there are 11 Regional Police Directorates, within which there are Criminal Police Offices, which are divided into divisions or groups, depending on the size of the individual regional police directorate. One of such divisions (or groups) is also Organized Crime Division (or Group), which, among other, "directly carries out criminal investigation in the following fields:

corruption in state authorities, corruption in authorities and organizations with public authorizations, corruption in obtaining and granting public investment works, investments purchases, concessions, financial subsidies and credits, trading in influence, other crimes of corruption."

Thus at the state level co-ordinating, supervisory and plarming function is carried out while at the regional level the basic investigative activities are carried out.

At the local level police stations are organized, whose task is also the prevention, detection and investigation of all criminal offences, including corruption, as well as detection, apprehension of perpetrators and their handing over to the competent authorities. The local level deals with the simplest forms of criminal offences.

In the performance of their work police officers can use the following most important police powers, which are listed in:

Art. 33 of the Police Act: warning, giving orders, determining a person's identity and carrying out identification procedures, making a security check on a person, issuing summons, performing a safety check, denying entry to a certain territory, arresting and bringing in a person, detaining a person, carrying out strict police surveillance, confiscating items, entering a private residence, making use of transportation and communication means, applying undercover police coercive and any other measures authorised by law.

Art. 49 of the Police Act: surveillance and tailing with the use of technical equipment for the purposes of documentation, undercover work, undercover co-operation, altered documentation and identification insignia.

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, Art. 50 of the Police Act: instruments of constraint (from handcuffs to firearms). Art. 148 of the Criminal Procedure Act (hereinafter referred to as the CPA): collection of information, inspection of means of transportation, passengers and their luggage, restriction of movement in a certain area, establishing the identity of persons and objects, issuing of searches for persons and objects, examinations of certain objects and premises in enterprises and other legal entities as well as their documentation. Art. 149 0 f the CPA: sending to the investigating judge, detention at the scene of the offence, photographing and publishing of photographs of suspects, taking of fingerprints and of an oral mucous membrane swab. Art. 150 of the CPA: monitoring of telecommunications through bugging and recording, control ofletters and other parcels, control of the computer systems of banks or other legal entities which perform financial or other commercial activities, bugging and recording of conversations with the permission of at least one person participating in the conversation - all by court order Art. 151 of the CPA: bugging and surveillance in another person's home or in other areas with the use of technical means and where necessary secret entrance into the apartment -by court order. Art. 155 of the CPA: feigned purchase, feigned acceptance or giving of bribery - by the order of the public prosecutor. Art. 214 of the CPA: house and body search - by court order. Art. 218 of the CPA: entrance into another person's apartment.

The authority for criminal prosecution in the Republic of Slovenia is the Public Prosecutor's Office, whose position is governed by the State Prosecutor Act and the Criminal Procedure Act. The latter stipulates in its Art. 45 that the tasks of the public prosecutor in the prosecution of the perpetrators of criminal offences are as follows: Paragraph 45, Paragraph 2 of the CPA:

(1) In respect of criminal offences prosecuted ex officio, the public prosecutor shall have the jurisdiction:

1) to take the necessary steps concerning the detection of criminal offences, tracing of perpetrators and directing of preliminary criminal proceedings; 2) to request that investigations be undertaken; 3) to prefer and press an indictment or a charge sheet before the competent court; 4) to file complaints against judgements that have not become final and apply extraordinary legal remedies against finally binding judicial decisions.

In Slovenia there are the Public Prosecutor's Office of the Republic of Slovenia, four higher public prosecutor's offices and 11 district public prosecutor's offices. District prosecutor's offices are the basic authorities for prosecution dealing with all the crime, although within the larger among them specialization has already taken place, while higher public prosecutor's' offices are instance authorities. The head of the Public Prosecutor's Office of the Republic of Slovenia is the General Public Prosecutor of the Republic of Slovenia.

With the amendments to the State Prosecutor Act of 1999 the legal base for the Group of Public Prosecutors for Special tasks was laid down, which since 1995 has been dealing with organized crime and in this context also with some kinds of offences among which corruption is explicitly mentioned. The mentioned group operates for the whole Slovenian territory in such a way that district public prosecutor's offices that have territorial jurisdiction have the

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duty to inform the group on matters from its jurisdiction as soon as they find out about them. As regards other matters the competencies of prosecutors from this group are the same as prosecutors' general competencies.

Criminal offences of corruption are judged by the courts:

Local courts (there are 44 in the country) administer justice in procedures for criminal offences where pecuniary penalty or imprisonment for not more that three years is prescribed. Thus out of criminal offences of corruption those courts process Obstruction of Freedom of Choice under Art. 162 of the Penal Code, Acceptance of Bribe at the Election or Ballot under Art. 168, Unjustified Acceptance of Gifts under Art. 247, Unjustified Giving of Gifts under Art~ 248, Giving of Bribe under Art. 168, Trading in Influence under Art. 169, Acceptance of Bribe under Art. 267, Paragraph 2 and 3 of the Penal Code.

District Courts (there are 11 in the country) among other judge in procedures for the criminal offence of Acceptance of Bribe under Art. 267, Paragraph 1 of the Penal Code.

Higher courts (there are 4) administer justice in appellate procedures;

The Supreme Court of the Republic of Slovenia is the last instance in court procedures and passes judgement in filed extraordinary appeals.

Criminal matters are judged by the criminal departments of the courts, within which there is a certain specialization of judges. Slovenia also has the institute of the investigating judge, who carries out the investigation against a certain person if there is grounded suspicion that the person has committed a criminal offence, but he also issues orders for the encroachment upon the rights and freedoms of suspects in cases where court decision is envisaged by the Constitution of the Republic of Slovenia and the laws.

Considering the identical territory covered by the regional police directorates, district public prosecutor's offices and district courts the very necessary co-operation between all the three authorities in the prosecution of corruption is ensured.

e.2. Do you consider this structural framework satisfactory? If not, in your opinion what are the main problems?

This organisational structure of law enforcement is satisfactory for the time being.

2. International co-operation regarding corruption

a. Supply

a.1. To what extent can your country offer international co-operation in corruption cases (exchange of police information, mutual assistance in criminal matters, extradition, ... )?

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, a.2. Who should the applicant apply to (which authority, person in charge at this

instant, address, phone and fax number)? On which conditions and in which form?

a.3. Which particularities should the applicant be aware of when requesting co­operation from your country?

a.4. Which (legal and factual) obstacles do, in your opinion, hamper an efficient co­operation in practice (bank secrecy, double incrimination, language, policy priorities, ... ) ? Which practical remedies can you suggest?

As regards co-operation in the field of corruption the Pre-accession in the Repression of organised Crime to which Slovenia acceded in 1998 is undoubtedly very important as for multilateral agreements are concerned. Likewise, Slovenia has been a member 0 Interpol since 1993. And of course we have many bilateral agreements in criminal matters which contains the provisions on international co-operation. Police co-operation and information exchange in corruption cases can be done in two ways. First by the INTERPOL channels or second directly with the Section for combating Organised Crime within the Criminal Police Directorate. No special forms or conditions are requested.

International legal assistance in criminal matters is governed by the Criminal Procedure Act (OG RS) in Articles 514 - 520, if an international treaty does not stipulate otherwise.

Below we quote the legal wording of the mentioned Articles:

Art. 514

International aid in criminal matters shall be administered pursuant to the provisions of the present Code unless provided otherwise by international agreements.

Art. 515

(1) Petitions of domestic courts for legal aid in criminal matters shall be transmitted to foreign agencies through diplomatic channels. Foreign petitions for legal aid from domestic courts shall be transmitted in the same manner.

(2) In emergency cases and on condition of reciprocity, requests for legal assistance may be sent through the ministry of internal affairs, or in instances of c.rimina1 offences of money laundering or criminal offences connected to the criminal offence of money laundering, also to the body responsible for the prevention of money laundering.

(3) If reciprocity applies or if so determined by an international treaty, international criminal­legal help may be exchanged directly between the Slovene and foreign bodies which participate in the pre.;.crimina1 and criminal proceedings, wherein modem technical assets, in particular computer networks and aids for the transmission of pictures, speech and electronic impulses may be used.

Art. 516

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(1) The Ministry of Foreign Affairs shall send petitions for legal aid received from foreign agencies to the Ministry of Justice which shall forward them for consideration to the circuit court in whose territory resides the person who should be served with a document, or interrogated, or confronted, or in whose territory an investigative act should be conducted. In instances referred to in the second paragraph of Art. 515 of the present Code petitions shall be transmitted to the court by the Ministry of the Interior.

(2) The permissibility and the manner of performance of an act requested by a foreign agency shall be decided by the court pursuant to domestic regulations.

(3) If a petition relates to a criminal offence for which no extradition is provided by domestic regulations the court shall consult the Ministry of Justice as to whether to grant the request or not.

Art. 517

(1) Domestic courts may grant the request of a foreign agency for execution of a judgement of conviction passed by a foreign court if so provided by the international agreement or if reciprocity exists.

(2) In the instance referred to in the preceding paragraph the domestic court shall execute punishment imposed by a final judgement of a foreign court by imposing sanction in accordance with the legislation of the Republic of Slovenia.

(3) The court of jurisdiction shall pass judgement in the panel of judges referred to in the sixth paragraph of Art. 25 of the present Code. The public prosecutor and defence counsel shall be informed about the session of the panel.

(4) Territorial jurisdiction of the court shall be determined according to the last permanent residence of a convicted person in the Republic of Slovenia. If a convicted person had no permanent residence in the Republic of Slovenia territorial jurisdiction shall be determined according to his place of birth. If a convicted person neither had permanent residence nor was born in the Republic of Slovenia the supreme court shall assign the conduct of proceedings to one of the courts of real jurisdiction.

(5) In the enacting terms of the judgement from paragraph three of this Art. the court shall enter in full the enacting terms of the judgement of the foreign court and the name of the foreign court and shall pronounce sanction. In the statement of reasons the court shall state the grounds for the sanction which it has passed.

(6) An appeal may be lodged against the judgement by the public prosecutor, the convicted person and his defence counsel.

(7) If an alien sentenced by a domestic court, or a person authorised under a contract, files with the court of first instance petition for the convicted person to serve the sentence in his country, the court shall be entitled to grant petition if so provided by the international agreement or if reciprocity exists.

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, Art. 518

In the case of criminal offences of counterfeiting money and putting it into circulation, illicit production, processing and sale of narcotics and poisons, white slavery, production and dissemination of pornographic material or some other criminal offence for which centralisation of data has been provided under international agreements, the agency which conducts criminal proceedings. shall be bound immediately to send to the Ministry of the Interior data about the criminal offence and its perpetrator, and the court of first instance shall in addition send the finally binding judgement. Whenever the criminal offence of money laundering or a criminal offence connected to money laundering is involved, the data shall be sent without delay to the body responsible for the prevention of money laundering.

Art. 519

(1) If an alien who permanently resides in a foreign country commits a criminal offence in the territory of the Republic of Slovenia all files for criminal prosecution and adjudication may, beside conditions specified in Art. 522 of the present Code, be surrendered to the foreign country if it agrees to receive them.

(2) The decision on the surrender of files shall before the ruling on investigation has been rendered lie with the competent public prosecutor. During the investigation the surrender shall be decided by the investigating judge upon motion of the public prosecutor, and until the opening of the main hearing it shall be disposed of by the panel (sixth paragraph, Art. 25) who shall also handle matters from the jurisdiction of the district court.

(3) The surrender of criminal files may be allowed where criminal offences punishable by up to ten years imprisonment are involved, as well as in case of criminal offence against safety of public transport.

(4) The surrender of criminal files shall not be allowed if the injured party is a citizen of the Republic of Slovenia who opposes it, except where his indemnification claim has been secured.

(5) If the defendant is in remand the foreign country shall be requested through the shortest possible channels to report within fifteen days if it assumes prosecution.

Art. 520

(1) The request of a foreign country to the Republic of Slovenia to assume prosecution of a citizen of the Republic of Slovenia, or a person with permanent residence in the Republic of Slovenia, for a criminal offence committed abroad shall be transmitted, together with the files, to the competent public prosecutor in whose territory that person has permanent residence.

(2) Indemnification claims filed with the competent agency of a foreign country shall be treated as if they have been filed with the court of jurisdiction.

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r

(3) Information about the refusal to assume criminal prosecution and the final decision thereon shall be sent to the foreign country which requested that the Republic of Slovenia assume prosecution.

No specific factors exists on the side of Slovenia that would prevent or hinder international legal assistance in the prosecution of criminal offences of corruption.

b.Demand

b.l. What are your expectations when you request co-operation from another country in a corruption case?

b.2. To what extent are these expectations met? b.3. Which are the main problems and how can these be solved?

We expect quick response with clear statements what is possible and what is not. We expect that those who are answering on our request would make personal contact (by phone or e­mail) with our officers which are responsible for cases. We always practice that in complicated or high priority cases (and this is the case with corruption) are giving the contact persons.

Especially with corruption cases which are involving foreign nationals we expect that our informations are handled in accordance with the regulations for data protection.

We can say that those expectations are mostly met.

We have to few cases on this field so I can't answer which are the main problems because that would be clear speculation.

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• NATIONAL REPORT

FOR

THE NETHERLANDS

By Prof Dr. Edward KIMMAN, University of Amsterdam

The Falcone Project stated that it is not wishing to duplicate other projects (GRECO, Di Pietro, etc.) but that is an update regarding the regulations, structures and practices of the legal fight against corruption. The Project involves 26 states. In this Report I describe the Dutch situation. My position is being the President of the Dutch Branch of Transparency International and a Professor in Ethics and Economics. The law is not my field as such. As an ethicist I know that by and large the law is based on moral convictions. In this Report I will review a selected number of measures and practices.

1. The organization of the fight against corruption on the national level

a. General Policy

a.I.

For a long time the Dutch people have treated corruption as a phenomenon of the Second and Third World. Perhaps in Southern Europe it could happen as well. And, yes, maybe in France or Belgium. But at the border it would stop. Allegations of involvement in corrupt practices by multinational enterprises with headquarters in The Netherlands circulated in the 1980s and 1990s. But it were some trials in which city councilors had to defend themselves against accusations of petty corruption that put concern for integrity on the agenda of he politicians.

A Parliamentary Commission reported in the parliamentary year 1995/96 its investigations in extraordinary, unusual and even illegal inquiry methods of the Dutch Police Force in its search for organized drugs related crime. This so-called Van Traa-Commission put corruption on the parliamentary agenda as a side effect of its work.

There are now two tracts oflegislation processes: the first oriented towards amending the Penal Code with punishments of foreign corrupt practices; the second towards improving the legal guarantees for integrity in public procurement. The first legislative project includes the ratification of the OECD Anti-Corruption Treaty. The second legislative project includes putting a new system in place of with a regime of proper diligence.

a.2.

I think that before 1990 corruption was not really an issue. Today, it is. Yet, anti-corruption legislation does not receive any priority.

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b. Statistics

Statistical data on crime do not (yet) have a separate entry concerning bribery, corruption or related offenses.

The Supreme Audit Office (Algemene Rekenkamer) at The Hague reported that during 1990-95 143 civil servants allegedly were involved in corrupt practices. Some of them have been put to trial and were successfully convicted. (Source: Report 1996)

Out of a total of 650,000 civil servants (125,000 working at central government, 125,000 in the QUANGO's, 400,000 in various lower level governments and authorities) it was estimated in 1997 that there were annually 450 indictable offenses related to corruption. (Source: Beijers, Niemeijer, Huisman, 1997)

c. Repressive Legislation

The bulk of the repressive legislation is to be found in the Penal Code. The code of behaviour for civil servants does have a number of articles concerning conflicting interests (ARAR: articles 61,62,63, 63a), acceptance of gifts (ARAR: article 64) and neglect of duty (ARAR: article 80). Codes of behaviour of enterprises usually contain articles that forbid active bribery.

The Dutch Penal Code contains the usual articles concerning active and passive bribery of civil servants, officials, judges, politicians, etc. (Penal Code: articles 177,362 and 363). The very word 'corruption' is not being used in the Penal Code. In its various appearances, such as bribery. It has been defined as a crime. By and large it is a victimless crime: so far, there are hardly so-called victims who file complaints with an office of the police or another government agency with investigative authority, such as inspectors for labour, tax, education, housing, etc. Those involved in corruption by and large hesitate to file a complaint since it would expose their own involvement in a crime. In many a case prosecutors base their charges on evidence found during investigations concerning smuggling, theft, tax fraud, or other crimes.

Corruption is, in fact, in the Dutch legal system a construction built from other criminal activities that are being defined in the Penal Code. Its punishment is relatively light. The one who bribes faces a punishment of maximum two years in prison. Dismissal and a limit of four years prison are the punishments for civil servants who have been bribed. At the maximum the condemned civil servant is not entitled to work again for the government during a period of five years. The maximum penalty rarely has been used with the argument that a dismissed civil servant already has been punished. Dutch judges look at punishment in an integral way and easily conclude that a prison term would nothing add to the punishment of a dismissal in disgrace.

Most complaints do not end up in a trial and many judicial examinations come to a dead end as the burden of proof cannot be established fully and legally. In trials of accused mayors it was impossible to establish the causality between the acceptance of a gift and awarding a contract.

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• Mr Dick Pijl, the present director of the state detective force, doubts whether the Dutch penal Code at all has been tailored to repression of corruption. (Conference, 1997)

Another way to deal effectively with corruption is through a disciplinary committee. Transgressions of the desired behaviour, usually laid down in a code of conduct, can be swift corrected and disciplined with a variety of sanctions from censure to dismissal. Disciplinary measures, unfortunately, are hardly challenged if the assessment was beside the point.

Dutch law does not yet have provisions for whistleblowers neither does it contain plea bargaining devices.

d. Preventive measures

The most used preventive measure is public debate, dialogue between government and the market sector, and codes of conduct.

Dutch law has a provision obligation to notify the authorities (police, or other agencies) of cases of abuse of power and misfeasance (Law of criminal procedures, Sv, 162). If a citizen suspects a civil servant of accepting gifts, then he should notify the police. If a citizen suspects a contractor of bribing civil servants there is no such legal obligation of informing the police. It has been proposed in circles of corruption fighters to extend this article in a way that it successfully can be applied to all cases of corruption.

Since 1993 the public (certified) accountants are obliged to report to a special public prosecutor fraud and corrupt practices if an accountant detects such practices in his annual audit. This obligation only can be enforced in case the Board does not take measures to put the business back on a sound basis. So far, no such reports have been brought to the public prosecutor.

Since the early 1990s there is a long parliamentary debate on a proposed bill for due diligence in Public Procurement. In the 1970s some European Guidelines on this subject have already been formulated. In the 1990s these Guidelines were reformulated: for example, 93/37/EEC (procedures for tender of public works), 93/36/EEC (procedures for putting out contracts to supply government agencies), 92/50/EEC (procedures for granting service contracts), and 93/38/EEC (procedures for contracting out the supply of water and energy). In 1997 these Guidelines have been reformulated again in accordance with the WTO-Guidelines.

In the 1990s there was a discussion whether the Government had to exercise due diligence when tendering contracts and whether the Government could put additional criteria to the contractor which may militate against the principle of equal treatment. The discussion found its origin in the case of the Beentjes Firm against the State of The Netherlands (European Court of Justice, 20 December 1988, ECR 1988,4635). The Court ruled that indeed additional conditions might be made, as long these conditions are not testing the contractor's economical and technical capacities. The conditionality of this case concerned the use of persons who were jobless for a very long time. Since this ruling Governments could put additional criteria in tenders. The Court got more cases to judge but it was clear that there existed some room to maneuver.

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• In the mid-1990s the Parliament was willing to discuss issues such as corruption and integrity. At that time the main culprit was 'organized crime'. In 1994 Struiksma and Michiels published a report on possible law improvements to combat criminal activities in securing building permits, environmental licenses and tender activities. Several Departments of the Government presented in 1996 a concept bill 'Advancement Integer Decision Making in the Public Sector. The idea is to develop a screening system which is more or less comparable to the cautele antimafia in Italy. In this framework there is much room for preventive measures. The idea in the proposed Dutch system is to give discretionary powers to the authorities to screen companies when decisions, permits, subsidies, concessions and contracts are at stake. It is about the screening of the 'other' party not by the authority involved in handing out a permit or a concession but by a special bureau. This bureau is authorized to investigate the records, the files and other sources for evaluating the integrity of the company involved. There is much critique on the proposed bill. Is the establishment of a new bureau really necessary? What about the balance between the public interest and the infringement of the privacy of the functionaries in the companies involved? Will such an investigation stand the test of article 8 of the European Convention of Human Rights? Will there be a sufficient general interest that fits the requirements as stipulated in this article 8? What to do when the bureau encounters fraud and corruption? Are its reports qualified enough for public prosecutors to start an indictment? There are also practical points: will such a bureau succeed where police, accountants and other agencies failed so far, when it comes to getting a good picture of the structure, the financing, the control and the interweaving with other interests and companies? The Parliament, so far, has raised about 350 questions which are waiting to be answered by the ministers involved.

Corruption is a state of affairs in which many little persons bring about many little distortions in the way government and its agencies are supposed to work.

e. Structures

In the early 1990s both the police organization and the organization of the public prosecutors have been reorganized from a network of local districts with their local heads toward a central run organization. Reason was to fight organized crime which was not bound to operate in a single police district. Of all police capacity 40% is targeted to do criminal work. Included in this figure is the investigative department which employs 15% 0 the police force. Previously, the Dutch police had two different sorts of police: cities and towns had their city police force but the countryside was served by the state police force. The two kinds of forces have been integrated into 25 regional districts and 1 national service for special tasks.

The public prosecutors did not have a central authority but were virtually independent within their own jurisdiction. Since 1998 there is a Counsel of three Public Prosecutors who have authority over all public prosecutors in the country. The Counsel makes annual plans, has its aims (such as more security in certain areas), likes to raise standards of professionalism and tries to supervise the integrity of the necessary relation to the police force.

Both reorganizations were set in motion to combat organized crime but both have now national offices which easily can be equipped to fight corruption as well. Besides police there are many more special intelligence units: labour inspection, tax fraud inspection, etc. It is estimated that the Netherlands has some 68 special intelligence units, the biggest being the 800 persons of the tax fraud office.

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The tax fraud office has been merged with the 200 persons of the office for economic offences (the former bureau for price control). This merge may become quite important for fighting corruption effectively. It is premature now to report of the results ofthis recent merger.

2. International cooperation regarding corruption

The OECD Anti-Corruption Treaty is being processed in the Parliament. The Second Chamber passed the bill of ratification and approved the necessary changes in the Penal code. The First Chamber is expected to debate the bill soon.

Dutch companies abroad bribe. That is a fact. To promote the OECD Treaty is one thing. To convince the Boards of these multinational companies that corruption is wrong and that they should phase out foreign corrupt practices is quite another thing. Persuasion is a task for the discussions in the civil society. A treaty and a law, as such, cannot bring about a change in mentality. It is the citizens themselves that should work on it.

5

NATIONAL REPORT

FOR

LITHUANIA

By Aida RAUDONIENE, Senior Agent of the Analytical Division of the Special Investigations Service of the Republic of Lithuania

1. The organisation of the fight against corruption on the national level

a. General policy

a.1. What general policy does your country have towards corruption (is it an issue or not; focus on repression and/or prevention, ... )?

The Lithuanian Government has set the following policy priorities in the anti-corruption sector:

Short-term priorities (for the year 2000):

• Developing the Anti-Corruption Programme (consisting of the Programmes for Anti­Corruption Policy, Strategy and Implementation).

Medium-term priorities (for 2001-2003):

• Signing the OECD Convention on Combating Bribery of Foreign Public Officials In

International Business Transactions; • Ratifying the Council of Europe Criminal Law Convention against Corruption;

• Reviewing the National Anti-Corruption Programme, developing and starting to implement Sector Anti-Corruption Programmes.

Previously, Lithuania had made huge efforts to strengthen its law-enforcement and governmental structures and to encourage a forceful fight against corruption. Currently, however, this focus on the repressive measures has been replaced by the understanding that preventive measures playa more significant role. In this respect, radical legislative changes have been made to accommodate the following new steps.

• An advancement in the legal arena is the adoption of the Law on the Special Investigations Service (SIS) on 2 May 2000, which made the SIS, an anticorruption body formerly under the Ministry of the Interior, accountable to the President and the Parliament. This law has paved the ground for strengthening the anti-corruption efforts of the SIS, making both the Service as well as its investigations independent. The SIS will ensure uniformity of the efforts of state institutions while controlling and preventing corruption. The law, among other things, provides for a definition of corruption that was not stipulated either by the Criminal Code or other Lithuanian legislation.

1

• Another important step is 8 May 2000 Ruling of the Constitutional Court denying immunity from prosecution (which may also involve the usage of special equipment, i.e. technical devices intended for monitoring by means of electronic, telegraph, and other communications, wiretapping and recording of telephone conversations, as well as surveillance of premises, or may be subject to the mode of simulating the criminal activity) to all high government officials save for the President. This Ruling provides for a wider range of measures exercised by the SIS operatives in disclosing corrupt high-level officials.

• Moreover, on 2 March 2000, the Chief Institutional Ethics Commission was established pursuant to the Law on the Adjustment of Public and Private Interests in the Public Service (which ensures that holders of public office make decisions solely in terms of the public interests and secures the impartiality of the decisions taken). The Commission deals with the failures of high government officials to adjust their public and private interests in the public sector. To that end, the Commission has: a) adopted a form of declaration of private interests of civil servants, and the rules of

filling them out; b) produced a nominal list of civil servants whose summary data obtained from these

annual declarations should be made publicly available.

Other preventive measures include the following projects developed and implemented within the framework of Ph are programme:

In 1999, the State Security Department, together with other law enforcement institutions, executed Preliminary Evaluation of Corruption Situation in Lithuania, initiated by Phare. In 2000, under Phare "Pre-Ins Facility", project No. LI9809.02, the National Anti­Corruption Programme (comprised of the Anti-Corruption Policy and Strategy) will be developed integrating law enforcement, legislature and civic society in the fight against corruption. The follow-up twinning project, No LI9913, will focus on the Review and Implementation of the Programme as well as development and implementation of Sector Anti-Corruption Action Plans. The main purpose of these projects is to increase Lithuania's national capacity to combat corruption by reducing it as much as possible, particularly in the public sector; and involve Civil Society in the fight against corruption by engendering a national culture of integrity. This will be carried out in close co-operation with the National Chapter of Transparency International, established in Lithuania in early 2000.

Further anti-corruption policy of the Government will be carried out in compliance with the Long-Term Programme for the Prevention of Organised Crime and Corruption for the period 1999-2005 to make anti-corruption actions more systematic, to harmonise the legislative framework and ensure inter-departmental co-ordination of anti-corruption efforts.

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• a.2. Do you consider this policy satisfactory or not? If not, in your opinion, what are the main deficiencies?

Lithuania, like many other countries restoring democracy and market economy, requires a national anti-corruption programme and operational measures facilitating the following:

development of an effective system of preventive measures, which would eliminate systematic causes of and conditions for corruption; identification of new areas affected by corruption and timely provision of prevention and control measures; improvement in disclosing incidents of corruption, ensuring liability for corruption­related crimes; development of the improvement of the legal framework, ensuring effective enforcement of anti-corruption legislation; strengthening of the control structures (revision, audit and similar), ensuring the links of preventive system at national, municipal and institutional levels; development and strengthening of the information analysis, methodological, research system (collection, systemisation, analysis of social, economic, legal, political and other information, identification and forecasting the phenomena of shadow economy and other crimes; arrangement of training and employee upgrading); putting in place corruption prevention and control system at state and municipal institutions, ensuring their operation.

b. Statistics

b.l. To what extent and from which sources are statistical data available concerning: - corruption - international co-operation in corruption cases - the link between corruption and organised crime - the link between corruption and money laundering?

Since the establishment of the Special Investigations Service (SIS), the data on the situation regarding corruption (as well as in international co-operation) have been collected, stored and analysed in one of the divisions of the SIS.

Other statistical data on civil service offences and crimes are stored in the Department of Information Technology of the Ministry of the Interior. This Department also obtains data from the Financial Police (incidents of money laundering) and Organised Crime Investigations Service (organised crime) under the Ministry of the Interior, Interpol, Department of Statistics under the Government (the latter provides data on the general economic, social, legal, and financial status of the country).

b.2. Can you provide these data? If they are not available, can you make an estimation?

3

The following is the 1997 - 2000 statistics on the fight against corruption (SIS performance results):

.. 1997 19 crimes since

1 September 1999

Crimes Disclosed by the SIS in 1997 - 2000

.. 1998 117 crimes

2 3

Persons against which Charges were Brought

b 1999

160 crimes

.. 2000 68 crimes during the first 8 months

4

on the Basis of Crimes Disclosed by the SIS in 1997 - 2000 metais

• 1998 190 persons

• 1997 persons

29 persons since 1 September

1999

2 3

4

1999 168 persons

• 2000 76 persons in the first

8 months

4

c. Repressive legislation

c.l. Which types of behaviour can be sanctioned as forms of corruption (bribery, trading in influence, ... )? Active and/or passive corruption? In the public and lor the private sector?

In compliance with the Council of Europe's Criminal Law Convention on Corruption as of 27 January 1999, which Lithuania has signed, the Criminal Code of our country (hereinafter referred as the CC) stipulates active and passive bribery in the following manner:

Passive bribery:

Article 282 of the CC (its version as of 1 July 1999) stipulates that' acceptance of a bribe' shall be accepting, promising to accept or demanding of a bribe by a public official or a civil servant, for himself or herself or for anyone else, for him or her to act or refrain from acting, to make a decision, vote or express an opinion in favour of a bribe-giver, or the promise to do so.

Active bribery:

Art. 284 of the CC stipulates that 'bribe-giving' shall be giving or an agreement to give to a public official or civil servant a bribe in the form of money or material advantage or making it possible to have some material benefit in exchange of such a public official's or civil servant's action or refrain from acting, decision, voting or voicing an opinion in favour of a bribe-giver or other person.

Corruption in the public sector involves the following:

'Abuse of office' is an intentional abuse of office by a public official or a civil servant in the interests adverse to such office and done for personal gain or by inflicting damage to the state or to other parties (Art. 285 of the CC).

Under Article 290 of the CC, a public official is a person who works for state, government, municipal, law enforcement, state control and supervision and similar institutions and performs the functions of a public office holder or the one who has administrative powers.

A civil servant is a person performing certain duties (excluding economic-technical functions) in an institution, enterprise, organisation and who receives remuneration from the state or municipal budget but does not have the powers of a public official.

The CC also stipulates other corruption-related crimes in the public sector. These include abuse of office, refraining from official duties (non-feasance), fraud (related to document handling) in office (malfeasance), exceeding one's authority, acceptance of undue remuneration, etc.

Corruption in the private sector includes the following offences:

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• Commercial bribery (Art. 319 of the CC) - active form of bribery, which is described as 'giving of undue remuneration in the form of money, valuables, other property or services to a person employed in commercial, economic or financial enterprise in exchange for making decisions or actions in the course of that person's duties or refrain from such in favour ofa bribe-giver'.

Acceptance of undue remuneration (Art. 320 of the CC) - passive form of bribery, which is described as 'acceptance of undue benefit by a person employed in a commercial, economic or financial enterprise or engaged in professional activity, in exchange for a decision or action performed or refraining from such in the course of that person's duties in favour of a bribe-giver'.

c.2. Are those legal provisions only applicable if nationals are corrupted or is their scope of application more extensive (foreigners, members of international organisations, ... )?

The issue of criminal liability of foreign diplomats or those in their capacity which commit a crime in the territory of Lithuania shall be solved in a diplomatic way (CC, Art. 4, part 5).

Foreign nationals having committed crimes in the territory of Lithuania shall be extradited to appropriate countries pursuant to international or interstate agreements, or in their absence -pursuant to the legislation of the Republic of Lithuania (CC, Art. 71 p. 1).

c.3. Which sanctions can be imposed (imprisonment, fine, confiscation measures, deprivation of rights, administrative sanctions, blacklisting, ... )?

The punishment for a bribe-taking is confinement for up to 5 years and deprivation of the right to hold certain office or do certain work or be engaged in certain activities within the period of up to 5 years or a fine with the deprivation of the right to hold certain office, do certain work and engage in certain activities for up to 3 years.

An acceptance of a substantial bribe is punishable by confinement from 3 to 10 years and deprivation of the right to hold certain jobs and other sanctions. (Taking a "substantial bribe" is considered when the amount of the bribe in cash or in valuables 150 times exceeds the minimum subsistence level (MSL). Currently, the MSL is 125 litas or about 31.25 US dollars.)

A person who has given a bribe to a public official or a civil servant is punishable by confinement for up to 3 years, or corrective labour for up to 2 years, or a fine. Giving of a substantial bribe is punishable by the deprivation of liberty for up to 5 years or a fine.

Abuse of office is punishable by imprisonment for up to 4 years and a fine, or a fine and other sanctions.

Corruption in the private sector is punishable by imprisonment for up to 3 years or corrective labour for up to 2 years and a fine, or only a fine.

6

• Acceptance of undue substantial remuneration is punishable by imprisonment for up to 6 years.

c.4. To whom are these legal provisions applicable (physical persons and/ or legal persons)?

Said provisions are applicable only to natural persons: public officials, civil servants or such employed in commercial, economic or financial enterprises. The new Criminal Code as of 26 September 2000 (which will come into effect in 2 years) will incriminate both natural and legal persons.

c.S. What is the territorial scope of application of the provisions?

All persons who commit crimes in the territory of the Republic of Lithuania as well as in the territory of other countries are liable in compliance with the criminal legislation of the Republic. The territory of Lithuania is the entire territory and its depths within the boundaries of state borders, as well territorial waters and airspace above it. If the crime is committed in the territory of Lithuania and another country, the crime is considered to be committed in the territory of Lithuania if it was started or finished or prevented there.

Pursuant to Art. 6 of the CC, Lithuanian citizens and persons permanently residing in Lithuania having no citizenship are liable for the crimes committed abroad in accordance to the criminal legislation of Lithuania.

Pursuant to Art. 20 of the Code of Criminal Procedure of Lithuania, the procedure of criminal cases concerning the crimes committed by foreign citizens and persons having no citizenship is carried out in the territory of the Republic of Lithuania (excluding persons having the status of diplomatic immunity).

c.6. Does the law contain particular provIsIons relating to the burden of proof in corruption cases (reversal, division, protection of whistleblowers, ... )?

The Special Investigations Service performs enquiry in the corruption-related cases, initiated by the SIS (Part 3, Art. 134 of the Code of Criminal Procedure). Enquiry must be completed within 1 month if pre-trial investigation is necessary. The period of 1 month can be extended by the prosecutor monitoring the case. (Art. 139 of the Code of Criminal Procedure).

Pre-trial investigations in the criminal cases are performed by investigators from prosecution offices, SIS investigators as well as investigators of the Ministry of the Interior inasmuch as this falls within their competence (Art. 47, the Code of Criminal Procedure).

In case of major crimes (bribe-taking is regarded as such), the prosecutor as well as the investigator having the approval of the prosecutor have the right to keep in secret the name and other identification data of a victim or witness with a view to ensure their security. Such identity data are considered to be the state secret.

7

• c.7. Do you consider this legislative framework satisfactory? If not, in your opinion what

.are the main problems?

• Up until recently, the focus was mostly on criminal prosecution. Currently, however, the liability of civil servants is taking a wider range, including administrative, disciplinary and other forms of penalty provided for in their agency regulations (codes of ethics, etc.). Notably, quite a few codes of ethics are already in place: for judges, lawyers, state inspectors, customs, etc.

• There is no sufficient control of the implementation of the Law on the Declaration of Property of Public Officials.

• A vetting mechanism for candidates to high-profile public offices is necessary.

• With a view to halt offences and misuse in budgetary institutions, internal audit system must be introduced there, which has been already been given a start in state institutions.

• A lion's share of the public provides little co-operation to the law enforcement in terms of disclosing corruption crimes. Much emphasis should be put to integrating civil society, business community and the academia in the active fight against corruption. This will be provided for the National Anti-Corruption Programme.

• The possibility of applying civil penalties and blacklisting should be given a thought in terms of excluding corrupt persons from employment in the civil service.

• The anti-corruption legislation framework must be improved accommodating the experience of other countries.

• The judicial branch must be separated from the executive, the procedures of appointing and dismissing judges must be reviewed, and efforts must be made to introduce effective disciplinary measures targeted at corrupt judges.

d. Preventive measures

d.l. What kind of preventative measures exist in your country (auditing standards, financial disclosure obligations, codes of conduct, ... )?

Since 1996, efforts have been made in applying preventive measures in the anti-corruption arena. This includes the Law on Reporting Residents' Property and Income, which requires declaration of residents , property and income based on taxes and other mandatory charges due to be paid to the Government.

In 1997, the Lithuanian Parliament adopted quite a few legal acts that can serve as prevention in the fight against corruption. These include:

• Law on the Prevention of Money Laundering, which provides for preventive measures against money laundering as well as government bodies responsible for their implementation;

8

• • Law on the Grounds for Lawfulness of Property Acquired and Income Received by Persons, which obligates the persons suspect of or charged with a serious crime committed for personal gain, as well as close relatives or family members thereof and other persons related to the defendant to ground the lawfulness of acquired income or property;

• Law on the Adjustment of Public and Private Interests in the Public Service ensures that holders of public office make decisions solely in terms of the public interests and secures the impartiality of the decisions taken;

• Law on the Control over Financing Political Campaigns aims at ensuring democracy and lawfulness of elections and referendums as well as control of such campaigns by electors and state institutions.

In 1999:

• Law on Financing Political Parties and Political Organisations aims at avoiding political corruption as well as ensuring lawfulness and transparency of funds used by political parties and organisations;

• Law on Public Administration sets out the basics for administrative regulation, administration of providing public services and internal administration of bodies, as well as lays down administrative procedures and responsibilities for examining individual requests and complaints;

• Law on Public Service provides for the basic principles of the public service, the status of a public servant, and legal grounds for the management of the public service.

This year, the Law on Lobbying has been adopted whose objective is to regulate the influence exercised over the law-making process, eliminate procrastination and forestall corruption. A major step in centralising the anti-corruption efforts was the adoption of the aforementioned Law on the Special Investigations Service. Currently, the draft law on Anti-Corruption is being developed.

Other preventive measures include codes of ethics development in the customs, state tax inspectorate, prosecutor's offices, state control, etc. The draft code of ethics has been also developed in the Special Investigations Service.

Disclosure of banking secrecy is regulated by the Law on Commercial Banks which stipulates that Banks must inform the institutions of law and order if the documents submitted to them or any other available information about the transactions of their clients testify to the legalisation of illegally acquired property or financial servicing of unlawful activities. Within the course of pre­trial investigation having filed a criminal case, the investigator has the right to ask the bank to seize the account of the suspect or the defendant. (Art. 195 of the CC).

So far, the possibility of introducing blacklisting as a civil law sanction has been an issue of consideration.

d.2. Do you consider this legislative framework satisfactory? If not, in your opinion what are the main deficiencies?

9

1) The Law on Public Administration, which has come into effect since 1 January 2000, contains a few loopholes that could be abused by potential policy players (for example, there is no provision stipulating termination of contracts when in the course of public procurement prices are groundlessly increased).

2) Administrative declaration of property should be put in place as soon as possible. 3) There should be more active involvement of Civil Society. We anticipate this deficiency

will soon be minimised with the establishment of the National Chapter of Transparency International in Lithuania.

4) There is a lack of prevention anti-corruption measures carried out in separate agencies. The leadership of those bodies could analyse the institutional structures, foresee the elements that are most prone to corruption and take efforts to prevent that.

e. Structures

e.1. Has your country established specialised services, specifically assigned with the combat against corruption? If so, what is the institutional context (e.g. established within the police), the composition, the functions and the powers of these services?

Pursuant to the Law on the Special Investigations Service as of 2 May 2000, the Special Investigations Service, a body previously accountable to the Government was reorganised and a service accountable to the President and the Parliament. (See Appendix No 1 on the structural chart of the SIS).

The main functions of the SIS are the following:

1) carries out intelligence activities in detecting corruption related crimes; 2) conducts an inquiry and preliminary investigation; 3) collects, stores, analyses and summarises information about corruption and related social and

economic phenomena; 4) jointly with other public bodies and civil society organisations implements crime control and

prevention programs; 5) co-operates with other law enforcement institutions.

Currently, the SIS is following these trends:

1. It seeks to create a system of national corruption prevention; 2. It seeks to improve the legal framework, eliminate gaps and collisions in the legal regulation

of economic, commercial, finance, management and other areas; 3. It seeks to improve disclosure of corruption facts and ensure inevitability of liability; 4. It seeks to develop and strengthen anti-corruption basis of information analysis, as well as

science and methodology; 5. It seeks to establish and maintain effective. bilateral, regional and wider international relations

with institutions of foreign countries engaged in analogous activity.

Other institutions involved in anti-corruption:

10

• Apart from the specialised anti-corruption agency, the SIS, there are other institutions or their structural units that play an important role in eradicating corruption

• State Security Department (combats corruption inasmuch as it poses threat to the state security);

• National and Criminal Police have field divisions or groups that handle bribery; • System of Internal Affairs has a division of Inspector General who controls lawfulness of

officers' activity; • Chief Institutional Ethics Commission handles abuse of office related to the adjustment of

public and private interests of high ranking officials, (established to ensure enforcement of the Law on Adjustment of Private and Public Interests);

• Economic Crimes Investigation Commission of the Seimas (established in 1996) investigates economic, corruption crimes and civil service offences of officials, as well as makes decisions concerning control over such crimes;

• Prosecutor's General Office and other prosecution offices have divisions of Organised crime and corruption - these control corruption pre-trial investigation carried out by the aforementioned institutions;

• Financial Police under the Ministry of Internal Affairs (established in 1997) has a Money Laundering Prevention Division, which mainly focuses on money laundering matters;

• Customs Departmenthas a special subdivision whose purpose is to fight against economic and corruption crimes inasmuch as those fall within their jurisdiction;

• Specialised units have been formed in the territorial police commissariats for fighting against bribery or receipt of undue remuneration by public officials or public servants.

e.2. Do you consider this structural framework satisfactory? If not, in your opinion what are the main problems?

Since its establishment in 1997, the SIS has faced certain problem§. Those relate to the lack of comprehensive agency anti-corruption measures. Information and remuneration system preventing the appearance of corruption is absolutely indispensable. The leadership of those agencies should analyse the respective structural framework, foresee the forms of corruption that could infect its certain area and control it.

2. International co-operation regarding corruption

a. Supply

a.I. To what extent can your country offer international co-operation in corruption cases (exchange of police information, mutual assistance in criminal matters, extradition, ... )?

11

• Pursuant to the international legal acts Lithuania has signed and ratified, our country may offer direct legal assistance (extradition, exchange of investigative information and intelligence, representation in criminal cases, etc.) to other countries.

So far, Lithuania has ratified the following conventions: • 19 September 1996 European Convention on Mutual Assistance in Criminal Matters (30)

(ratified on 17 April 1997); • 15 May 1992 European Convention on the Transfer of Proceedings in Criminal Matters (73)

(ratified on 23 November 1999); • 4 April 1995 European Convention on Extradition (24) (ratified on 20 June 1995).

In addition, co-operation could be carried out in compliance with other legal acts. Those include: intergovernmental agreements on legal assistance; agreements between prosecution offices on legal assistance and co-operation.

Exchange of intelligence and investigative information is carried out via the National Bureau of Interpol in Lithuania. The SIS maintains close relations with the Federal Bureau of Investigation and its Legal Attache's Office in Tallinn that is very helpful at giving prompt responses to the requests related to corruption cases we investigate.

a.2. Who should the applicant apply to (which authority, person in charge at this instant, address, phone and fax number)? On which conditions and in which form?

Bodies of foreign countries investigating corruption may apply to the Ministry of Justice, the Interior of the Prosecutor General's Office of Lithuania asking for legal assistance. This is regulated by the Code of Criminal Procedure of Lithuania.

If a court, investigation or enquiry body (including the SIS) receives a written or oral request, they execute it only upon receiving the appropriate permission from the aforementioned bodies (unless there are separate agreements regulating the matter).

When requesting legal assistance in corruption cases from the SIS, the applicants may use the following address:

Special Investigations Service of the Republic of Lithuania A. Jaksto g. 6,2600 Vilnius Tel. 37022 71 7340; 37022 71 73 38; Fax. 37022 71 7307; 3702261 6526 e-mail: stt@stt.lt

a.3. Which particularities should the applicant be aware of when requesting co-operation from your country?

The particularities of applying to the Republic of Lithuania are regulated by the Cc.

12

When a foreign country requests extradition of a criminal, the criminal may not be extradited if: the acts of foreign nationals are not considered crimes pursuant to the criminal law of the Republic of Lithuania; foreign nationals have been granted the right of asylum as a result of persecution for the act in that foreign country; the acts of Lithuanian nationals are not considered crimes pursuant the criminal law of the Republic of Lithuania.

a.4. Which (legal and factual) obstacles do, in your opinion, hamper an efficient co­operation in practice (bank secrecy, double incrimination, language, policy priorities, ... ) ? Which practical remedies can you suggest?

The main obstacles hampering efficient co-operation with analogous or similar institutions of other countries are related to the following:

1) developing and translating requests for legal assistance; 2) long procedure of receiving and sending requests for legal assistance from and to foreign

countries because all official requests are processed via the Ministry of the Interior, Justice or the Prosecutor General's Office.

The establishment of direct contact and signature of intergovernmental agreements could make exchange of information speedier and would facilitate co-operation of states in pursuing common aims.

b. Demand

b.1. What are your expectations when you request co-operation from another country in a corruption case?

The SIS, a specialised anti-corruption agency, aims at co-operation with analogous services, law enforcement agencies and international organisations in the anti-corruption sector. The contacts are established with a view to sharing experience, upgrading qualifications, jointly investigating international corruption cases, i.e. those that involve foreign nationals or our citizens in a foreign country.

We have also established a working relationship with the National Chapter of Transparency International, a civil society organisation in Lithuania. Our expectations are to involve civil society in the fight against corruption and build public sensitivity about corruption.

b.2. To what extent are these expectations met?

1) We have been working on joint projects (developing anti-corruption policy and strategy, in particular);

13

2) We have received assistance in terms of training our staff (analysts, investigators, and operatives).

b.3. Which are the main problems and how can these be solved?

The SIS is facing typical problems of the fight against corruption that are familiar to many other countries. These are mainly the lack of experience in countering this complex phenomenon, latent character of corruption crimes as well as speedier evolution of them in relation to the reform to the state system and its areas.

The procedure of intercommunication with foreign states is stipulated by the treaties on bilateral or multilateral legal assistance as well as the Code of Criminal Procedure of Lithuania. Official requests are sent via the Ministry ofthe Interior, Justice or the Prosecutor General's Office.

Thus the main problem in the anti-corruption co-operation is the lack of direct contact when exchanging intelligence and carrying out investigations.

Direct contacts with the representative of law enforcement bodies would help rational international relations in the anti-corruption area. Such representation would elimin::tte the problem of physical distance, which would facilitate co-operation between Lithuanian institutions and bodies of other countries in the pursuit of common aims.

14

Deputy Director

I

INTERNAL STRUCTURE OF THE SPECIAL INVESTIGATIONS SERVICE OF THE REPUBLIC OF LITHUANIA

Director I

- Advisor to the Director- I Senior special agent

H Press Representative

Auditor

Administrative Investigation Analitical - Division of Information Support Division Organisational Legal Affairs, Technology Division Division Personnel and Division

Internal Investi~ations

Accountancy

Unit of Organisational Unit of

Matters and Information

International Analysis

Relations

I Panevezys Field Klaipeda Field Siauliai Field

Office Office Office

I 1 sl Deputy Director J

Board of Intelligence Activities

Kaunas Field Office

NATIONAL REPORT

FOR

ESTONIA

By OUe RAIG, Legal Adviser, Penal Law Department, Ministry of Justice

1. The organisation of the fight against corruption on the national level

a. General policy

a.1. What general policy does your country have towards corruption (is it an issue or not; focus on repression and/or prevention, ... )?

The Criminal Code, the draft of Penal Code and the Anti-corruption Act which entered into force on 28 February 1999 contain legal provision on corruption. The,provisions for fight against corruption are also contain in Code of Criminal Procedure, Credit Institutions Act, Public Service Act, Public Procurement Act etc.

Addition to the specific criminal provisions the relevant issues are the implementation of law and law enforcement. We need to pay attention to the prevention of corruption. The system of institutions is necessary condition for this activity.

As regards the prevention of corruption the introduction of internal audit has very important role. The Parliament (Riigikogu) adopted on 07.07.2000 the Government of the Republic Act Amendment Act. This amendment ensures the introduction of the system of internal control in ministries, local governments, county governments and state agencies. At the same time the State Public Servants Official Titles and Salary Scale Act Amendment Act was adopted by which a position of an internal auditor was introduced in government and state agencies. The aim of an internal audit is to evaluate and analyse the system of internal control of an executive public authority, as well as to assess its efficiency and compliance with established requirements.

The units of internal audit have been established in Customs Board, Boarder Guard, Citizenship and Migration Board, Police Board and Security Police Board and in prisons.

In 1994 was established the governmental body Crime Prevention Council which also deals with the elaboration of the strategy and tactics against corruption.

There should be more emphasis on training of police, prosecutors and jUdges.

In order to intensify the work of the authorities that deal with the investigation of corruption and to exchange experiences a training program introducing the differences and problems connected with the investigation methodology of corruption and offences in office is planned for the period 2000-2003 in co-operation with foreign police and justice authorities. It is necessary to introduce European Union anti-corruption related legislation to the specialists dealing with the investigation of corruption and fraud within the framework of the same It training program. There is an approved Phare project for EU integration related expertise and

training concerning the fight against corruption. The first priority of the project is to train those people, who are responsible for investigation of corruption cases. The main idea of expert advice is to get more knowledge concerning strategic approach of combating on corruption.

The Project includes following topics: 1. Implementation of relevant and effective measures to combat corruption. 2. The role of internal control in exposing the corruption cases. 3. The co-operation of law enforcement agencies with private and public legal organisations

to prevent corruption. 4. The methods implemented to assure the transparency of the activity of the public legal

institution as the presumption of the corruption free society. Which legal acts need to be amended to increase transparency.

5. Implementation of measures to prevent the corruption of political parties. 6. Legal education in the field of corruption connected to EU. Introducing the European

Union and European Council corruption related legislation and planned anti-corruption directions in European Union.

7. Specialist training program to introduce the investigation methods of corruption related and malfeasance crimes.

8. Corruption schemes originating from the EU corruption affairs and corruption affairs in EU member states.

The Estonian Law Centre (Foundation) started the program "Measures against corruption in transition society" in December 1999. The duration of the project is 2. years. The aim of the project is to analyse the legal aspects of the prevention of corruption. The main task of the project is to find out what are the areas that involve the risks of corruption and to propose a legally sound measurement of corruption. Experiences of other countries will be studied and the possibility of applying those in Estonia will be explored.

The Ministry of the Economy started the project "Good practice in internal audit" in May 2000. This project helps to create and introduce the system of internal audit in the Estonian public sector. The project proceeds from the necessity to harmonize, on one hand, the activities of the Estonian public sector with the norms and practices of the European Union, and on the other hand, to improve substantially with the existing resources, the administrative capacity of the Estonian public sector, as well as to improve the control over Estonian national resources.

a.2. Do you consider this policy satisfactory or not? If not, in your opinion what are the main deficiencies?

We consider that the general policy is satisfactory.

b. Statistics

There is no data about the link between corruption and money laundering, 1 case of international co-operation in corruption cases, there is no statistical data between corruption and organised crime.

2

c. Repressive legislation

c.l. Which types of behaviour can be sanctioned as forms of corruption (bribery, trading in influence, ... )? Active andlor passive corruption? In the public and lor the private sector?

c.2. Are those legal provisions only applicable if nationals are corrupted or is their scope of application more extensive (foreigners, members of international

. t' )? orgamsa IOns, ... .

The Articles 164, 1641, 165 and 1651 of Criminal Code enact the punishments for accepting

and mediating of bribe and bribing. According to the Criminal Code the accepting of bribe is receiving personally or through a mediator of property, proprietary rights or other proprietary benefits as a bribe for the performing or refraining from performing an act in the interests of the person who gives the bribe, and the official is required to perform or can perform such act using his or her official position. Separately is criminalised the bribing of an official of a foreign country or international organisation. Bribing an official of a foreign country or international organisation is criminalised in the Article 1651

•

In addition to the bribing related articles there is also special corruption article (Art. 1642) in

the Criminal Code. It declares that the act of corruption is the making of undue or unlawful decisions or performance of such acts, or failure to make reasoned and lawful decisions or perform such acts by an official through the use of his or her official position for receiving income derived from corrupt practices or other self-serving purposes.

On 28th of February came into force amendments, which criminalised so-called trading of influence (art. 1646

). It declares that the trading of influence is the acceptance of remuneration by an official who promises to influence another official to make a decision favourable to the person who gives the remuneration.

Pursuant to Article 1663 official can be punished for acceptance of a of a more than adequate remuneration determined by an Act or other legislation for the provision of services or making of decisions by an official, or acceptance of remuneration for services without charge if this has caused significant proprietary damage or other serious consequence to the rights or interests of a person, the state or a local government protected by law has been caused thereby, or if the administrative punishment has been imposed on the offender for the same act.

The Article 160 of the Criminal Code defines an official as a person who has an official position in an agency, enterprise or organisation based on any form of ownership and to whom administrative, supervisory, managerial, operational or organisational functions, or functions relating to the organisation of movement of tangible assets, or functions of a representative of state authority have been assigned by the state or the owner. By the mentioned article you can also count a private sector official as an official.

In enactment of the Article 1642 of the Criminal Code the official will be considered to be the officials of state or local government, persons, who fulfil the duties of an official temporarily, the heads of constitutional institutions, ambassadors, state prosecutors, judges, notaries, the members of a local councils, police officers, bailiffs, prison officers, officials of the defence

3

forces, border guard officers, heads of the state owned legal persons and persons, who decide over the exploitation of state property or it's expropriation.

The criminal liability of the constitutional institutions is regulated by the constitution and some of constitutional laws.

The member of the Parliament, President of the Republic, the member of the Government, State Auditor, the head and the member of the Supreme Court can be held criminally liable only by the suggestion of the Legal Chancellor and with the approval of the majority of the Parliament.

A judge can be held criminally liable while being in official position only by the suggestion of the Supreme Court and with the approval of the President.

Legal Chancellor can be held criminally liable only by the suggestion of the President with the approval of the majority of the Supreme Court. These exceptions don't expand to the members of European Commission, European Parliament, Court of Justice and Court of Auditors.

c.3. Which sanctions can be imposed (imprisonment, fine, confiscation measures, deprivation of rights, administrative sanctions, blacklisting, ... )?

For accepting a bribe there is possible to punish with the imprisonment up to four years (by aggravating circumstances with imprisonment up to seven years) with deprivation of the right of working in a certain position or acting in a certain area of activity. For bribing or mediating a bribery it is possible to punish with imprisonment up to four years (by aggravating circumstances with imprisonment up to seven years).

A person who receives a bribe shall be released from punishment if he or she, voluntarily, is the first to submit a written notification of the events after having received property, proprietary rights or other proprietary benefits but before he or she performs or refrains from performing an act in the interests of the person who gives the bribe.

A person who arranges a bribe shall be released from punishment if he or she arranges the bribe under extortion or ifhe or she, voluntarily, is the first to submit a written notification of the events after having arranged the bribe but before the person who receives the bribe performs or refrains from performing an act in the interests of the person who gives the bribe.

A person who arranges a bribe shall be exempted from punishment if the bribe mediation has been extorted from him or her or if he or she was the first to inform voluntarily thereof in writing after bribe mediation, but before performing or not performing the act in the interest of the briber.

For corruptive act the punishment shall be a fine or deprivation of the right of employment in a particular area or operation in a particular area of activity or arrest. For corruption, if this has caused significant damage the punishment shall be a fine and deprivation of the right of employment in a particular area or operation in a particular area of activity or imprisonment for up to three years. For the same act repeatedly or by a group of persons or ifthis has caused significant damage or by extortion the punishment shall be imprisonment for up to six years

4

with deprivation of the right of employment in a particular area or operation in a particular area of activity.

For trading of influence the punishment shall be imprisonment for up to two years. For he acceptance of a more than adequate remuneration determined by an Act or other legislation for the provision of services or making of decisions by an official, or acceptance of remuneration for services without charge the punishment shall be imprisonment for up to two years with deprivation of the right of employment in a particular area or operation in a particular area of activity.

Concerning the participants or instigator of crime then the court has to consider the level and characteristics of everyone's participation in crime to make the decision about punishment.

c.S. What is the territorial scope of application of the provisions?

According to the legislation being in force, all persons who have committed crimes on the territory of the Republic of Estonia, as well as on board of a ship or a plane registered in the Republic of Estonia, are held criminally liable. A foreigner can be held criminally liable for an act that has been committed outside the territory of the Republic of Estonia, if on the basis of an international agreement a request for prosecution of a person has been submitted and at the location, where the act has been committed, it is also punishable according to the criminal law or, if at the location, where the action took place, there is no criminal law in effect of any state, as well as if the act has been committed against a citizen of the Republic of Estonia and if this action according to the Criminal Code of the Republic of Estonia and the criminal law being in force at the location of its commitment, is punishable, or at the location where the action took place there is no criminal law in effect of any country.

Nationals can be extradited for bribery accusations according to the European Convention of Extradition (Paris 1957) and it's additional protocols what have been ratified in February 19, 1997. I

Ne his in idem principle is valid in the bribery accusations.

The ne his in idem principle is valid also considering extradition. There will not be extradition ifthere is a final court's decision for the offence or offences according to what the extradition is requested. It is possible to refuse from extradition if there is a decision not to start a trial or end a trial for the same offence or offences.

Harmonising law with the EU standards it is necessary to adopt new Penal Code. The Draft of the Act Amending Acts relating to the Penal Code (119 SE) and Penal Code are currently under the discussions of the Riigikogu. The following corruption related offences will be prescribed in the new Penal Code:

1) Liability of a legal person for a corruption-related crime; 2) Liability of an official of a foreign country or an international organisation, including an official of the European Union, for corruption-related crime, including passive bribery; 3) Gaining of non-material benefits for corruption-related crimes; 4) Corruption related crimes of officials where a third party (a relative or in-law ofthe official or a political party, etc) has received profit from such action;

5

5) Liability for corruption-related crimes in the private sector.

c.7. Do you consider this legislative framework satisfactory? If not, in your opinion what are the main problems?

The legislative framework is satisfactory.

d. Preventive measures

d.2. Do you consider this legislative framework satisfactory? If not, in your opinion what are the main deficiencies?

The legislative framework is satisfactory but the main deficiencies in the implementation, especially in internal audit.

e. Structures

e.l. Has your country established specialised services, specifically assigned with the combat against corruption? If so, what is the institutional context (e.g. established within the police), the composition, the functions and the powers of these services?

There is no special unit concerned with corruption. Corruption cases are investigated by Police Board and Security Police Board. By the Code of Criminal Procedure Amendment Act adopted by the Riigikogu on 14.07.2000 the competence of carrying out the preliminary investigation was partly changed (§ 164 of the Code of the Criminal Procedure). According to the amendment the Security Police Board carries out preliminary investigation of corruption related crimes only if they were committed by public servants or any of the persons referred to clauses 1-13, 17-22 and 24 of subsection 2 of section 4 of the Anti -corruption Act. The main problem is to raise the qualification of police, prosecutors and judges through training programmes.

e.2. Do you consider this structural framework satisfactory? If not, in your opinion what are the main problems?

The structural framework is satisfactory.

2. International co-operation regarding corruption

Ministry of Justice is the central authority of international co-operation. The task of penal law department is the preparation of legislation and accession to international treaties in criminal matters. This department was established in 1996 for carrying out the penal reform. The draft of Penal Code is the most important law of the penal reform. This draft is in second reading of parliament and will enter into force in 2001. Code of Imprisonment which are in the parliament too and will enter into force in July 2000. The Code of Penal Procedure, Code of

6

Administrative Procedure and Court Expertise Act are under elaboration. Present Code of Criminal Procedure does not meet needs of fighting against organised crime. Procedures are too long, slow, bureaucratic and expensive.

The foreign relations division of general department deals with practical issues of legal aid. The number of letters of rogatory is increased continually.

Estonia's Constitution stipulates that ratified conventions take precedence over national law, except for the Constitution, and do not need to be transposed into national law in order to take effect.

Estonia has ratified the key criminal law conventions of Council of Europe in 1997.

1) European Convention on Extradition (ETS 24), Paris, 13.12. 1957, signed by Estonia 04.11.1993 and two Additional Protocols: Protocol I, Strasbourg, 15.10.1975. Signed by Estonia 03.05.1996. Protocol II, Strasbourg, 17.03.1978. Signed by Estonia 03.05.1996. Ratified by the Riigikogu 19.02.1997.

2) European Convention on Mutual Assistance in Criminal Matters (ETS 30) Strasbourg 02.04.1959. Signed by Estonia 04.11.1993. Additional Protocol, Strasbourg, 17.03.1978. Signed by Estonia 03.05.1996. Ratified by the Riigikogu 19.02.1997

3) European Convention on Information on Foreign Law (ETS 62) The Hague 25.10.1985. Signed by Estonia 06.11.1996. Additional Protocol. Signed by Estonia 03.05.1996. Ratified by the Riigikogu 19.02.1997.

4) European Convention on the Transfer of Proceedings in Criminal Matters (ETS 73) Strasbourg 15.05.1972. Signed by Estonia 03.05.1996. Ratified by the Riigikogu 19.02.1997.

5) Convention on the Transfer of Sentenced Persons (ETS 112) Strasbourg 21.03.1983. Signed by Estonia 04.11.1993. Ratified by the Riigikogu 26.02.1997.

6) European Convention on the Suppression of Terrorism (ETS 90) Strasbourg 27.01.1977. Signed by Estonia 03.05.1996. Ratified by the Riigikogu 29.01.1997.

Estonia has ratified Additional Protocol to the Convention on the Transfer of Sentenced Persons, Strasbourg 1997 in 1999.

The Act ratifYing the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime was adopted on 08 March 2000. In this connection the related provisions of the Criminal Code and the Code of Criminal Procedure were amended (published RT I 2000, 29, 173). The Criminal Code provides for the confiscation of property gained by such crimes. The Code of Criminal Procedure was amended by provisions of mutual assistance in the execution of judgements of foreign states.

7

Chapter 35 of the Code of Criminal Procedure prescribes the international co-operation in criminal matters.

Procedures of extradition are included. Extraditable offence is not defined in Estonian law. We follow the definition given by the Council of Europe Convention (art 2), bearing in mind all exceptions prescribed by other articles and additions coming from additional protocols to the Convention.

Our law reqUIres dual criminality for all offences except for the offences that are committed outside the territory of Estonia and the international treaty reqUIres the prosecution for those offences. But as the international law IS superior to national law III Estonia (except for our Constitution), we can apply also the provISIons of the international treaty without transposing them into national law if the provISIOn is clear.

Pursuant to Article 36 of the Constitution of the Republic of Estonia the extradition of the national is decided by the Government. Estonia has made the reservation to European Convention on Extradition, according to which the extradition of nationals can be refused in case the national disagrees to extradition. But finally the decision to extradite or refuse extradition of nationals is the discretion of the Government (§ 407 (1) of the Criminal Procedure Code).

In urgent cases the warrant to arrest can be given before the formal request for extradition has been submitted. This can be the case when the competent authority of the requesting state confirms that the warrant of the arrest has been given in the requesting state or conviction and sentence has been imposed. Requesting state must confirm that the formal request will be submitted as soon as possible. Provisional arrest shall not exceed 40 days (§ 402 of the Criminal Procedure Code).

Non-Estonian citizen can be extradited without formal procedures in case the consent has been given. Consent must be given in writing. Defence lawyer must be present. Person concerned will be informed of all consequences. Consent will be submitted to the Minister of Justice immediately and Minister of Justice will make the decision without delay. In case the extradition is denied, relevant documents will be sent to the State Public Prosecutor who will decide whether to initiate criminal procedures or not (Criminal Procedure Code § 404). Estonian citizen can not be extradited by using simplified procedures.

Mutual legal assistance is provided for in line with the convention and with the bilateral agreements Estonia is a contracting party too. A majority of requests comes via the Ministry of Justice but where Estonia has bilateral agreements on mutual legal assistance, these can be transmitted directly between legal institutions. Experience in handling requests for legal assistance is limited and there has been some language problems. The Baltic States are discussing how they can further fasten and simplify the procedures in legal matters between them.

National legislation allows for the exchange of information with foreign authorities in cases related corruption and in practice such exchanges are done through Interpol.

The Council of Europe Civil Law Convention on Corruption. The Government of the

8

Republic approved on November 31, 1999 the accession to the Convention. The Convention was signed on January 24, 2000. The Draft of the Civil Law Convention on Corruption Ratification Act was approved by the Government on June 13 and submitted to the Riigikogu (Parliament) on June 15,2000.

The Council of Europe Criminal Law Convention on Corruption. The Government of the Republic approved on May 2, 2000 the accession to the Convention. The Convention was signed on June 08, 2000.

Estonia has not ratified the OECD Convention on combating bribery of Foreign Public Officials in international business transactions and the time of ratification has not been fixed yet.

It is necessary to improve the national co-operation with neighbouring countries so that the exchange of information would be smoother and quicker than settled in the European Convention on mutual assistance in criminal matters (1959).

Secondly, the ratification of the Council of Europe Criminal Law Convention on Corruption and the Council of Europe Civil Law Convention on Corruption is relevant.

b. Demand

The main obstacle is too slow proceeding of the requested State, sometimes 6 months and more. We expect faster proceedings. This expectation will be met by concluding bilateral co-operation agreements. Good example in this field is Finland.

9

Chapter 35

Annex 1

Code of Criminal Procedure Part X

International Co-operation

International Co-operation In Field of Criminal Procedure

§ 397. General principles

(1) Requests for legal assistance in criminal matters shall be adjudicated on the basis of the international agreements of the Republic of Estonia. Legal assistance to states with whom an international agreement has not been entered into shall be provided pursuant to the principles arising from the criminal conventions of the Council of Europe which have been ratified by the Republic of Estonia, and this Part.

(2) The provisions of this Part apply unless otherwise provided by an international agreement of the Republic of Estonia.

(3) Activities regulated by this Part shall be performed pursuant to the provisions of this Code unless otherwise provided for in this Part.

§ 398. Legal authorities

The courts, the Public Prosecutor's Office, the Ministry of Justice and the Ministry of Internal Affairs of the Republic of Estonia are the legal authorities who submit applications to foreign states for legal assistance and adjudicate, according to their competence, the applications for legal assistance received from foreign states.

§ 399. Acceptance of evidence collected in foreign state

Evidence collected in a foreign state is accepted as evidence in criminal procedure in the Republic of Estonia unless the evidence is collected by an activity which is contrary to the principles of the criminal procedure of Estonia.

§ 400. Activities of prosecutor in Public Prosecutor's Office upon receipt of application for extradition of person to foreign state

(1) The Minister of Justice shall send an application received from a foreign state for the extradition of a person immediately to the Public Prosecutor's Office. If an application for extradition is received directly by the Public Prosecutor's Office, a prosecutor in the Public Prosecutor's office shall notify the Ministry of Justice of the application immediately.

(2) A prosecutor in the Public Prosecutor's Office is required to review a received application

10

for extradition immediately and verify whether all necessary documents have been annexed to the application. If necessary, additional information is requested from the foreign state through the mediation of the Ministry of Justice and a term for reply is determined.

(3) A properly prepared application for extradition is immediately sent to the court by a prosecutor in the Public Prosecutor's Office.

§ 401. Jurisdiction

Hearing of applications for extradition of persons to foreign states is within the jurisdiction of the Tallinn City Court.

§ 402. Taking into custody and holding in custody

(1) After a court has received an application for the extradition of a person to a foreign state, a judge shall, on the basis of a reasoned order of a preliminary investigator or on the proposal of a prosecutor in the Public Prosecutor's Office, decide the grant of a permission for the taking of the person to be extradited into custody. A refusal to take a person into custody shall be reasoned.

(2) In cases of urgency, a city or county court judge may grant a permission for the taking of a person into custody before the receipt of an application for the extradition of the person to a foreign state, if it is requested by a competent authority of the foreign state and if the authority confirms that an order for taking the person into custody exists or that a judgement of conviction has entered into force with regard to the person and an application for extradition will be sent immediately.

(3) A person may be released from custody if a foreign state fails to submit an application for extradition and the required documents within eighteen days after the detention of the person. A person shall be released from custody if an application for extradition has not been received within forty days.

§ 403. Right to representation

(1) A person has the right to representation during the whole proceedings regarding extradition. Sworn advocates or the senior clerks or clerks thereof, and other persons who have the permission of the court may be representatives.

(2) If a person requests the participation of a representative but is unable to pay for legal assistance, a representative is appointed for the person pursuant to the procedure provided for in subsection 361 (2) of this Code.

§ 404. Extradition of citizen of foreign state or stateless person to foreign state with his or her consent

(1) A citizen of a foreign state or a stateless person may be immediately extradited on the basis of his or her written consent given in the presence of a representative. A proposal to consent to extradition to a foreign state is made upon the detention of the person to be extradited. A consent is immediately sent to the Minister of Justice who shall decide the

11

extradition of the person to the foreign state.

(2) A decision of the Minister of Justice regarding the extradition of a citizen of a foreign state or a stateless person shall be immediately sent to the Police Board for execution. A decision by which extradition is refused shall be sent to the Public Prosecutor's Office for the commencement of criminal proceedings.

(19.04.00 entered into force 01.07.00 - RT I 2000,35,222)

§ 405. Court proceedings regarding extradition of person to foreign state

(1) A court session shall be held not later than within ten twenty-four hour periods after the court receives an application for the extradition of a person to a foreign state.

(2) Applications for extradition shall be heard by judges sitting alone.

(3) The participation of a prosecutor from the Public Prosecutor's Office in proceedings regarding extradition is mandatory.

(4) A court shall summon to a court session a citizen of a foreign state or a stateless person if a proposal to consent to the extradition has not been made to him or her upon detention or if he or she has refused to consent thereto, or a citizen of the Republic of Estonia to be extradited and shall notify the person to be extradited of the receipt of an application for extradition against his or her signature in a language the person understands, shall explain the facts on which extradition is based and the possible course of extradition, shall hear the opinion and objections of the person, and shall verify whether extradition is legally justified.

§ 406. Court rulings in proceedings regarding extradition of person to foreign state

(1) Upon adjudication of an application for the extradition of a person to a foreign state, a court shall make one of the following rulings:

1) to support the extradition of the person to the foreign state;

2) not to support the extradition of the person to the foreign state if the extradition is not legally justified.

(2) A ruling shall set out the time and place of the making of the ruling; the given name and surname of the judge; the given name, surname and the time and place of birth of the person to be extradited; the application being heard, and the content of the ruling. Issues regarding the taking of the person to be extradited into custody or his or her release from custody shall also be adjudicated by a ruling.

(3) A judge shall send an extract of a ruling provided for in clause (1) 1) of this section and an application for extradition to the Public Prosecutor's Office where a draft decision on extradition shall be prepared.

(4) If extradition is not legally justified, the proceedings regarding extradition shall be

12

terminated.

§ 407. Decision on extradition of person to foreign state or on refusal thereof

(1) Extradition of citizens of the Republic of Estonia shall be decided by the Government of the Republic.

(2) Extradition of citizens of foreign states or stateless persons shall be decided by the Minister of Justice.

(3) A reasoned decision on extradition or on refusal thereof shall be made immediately. A decision on extradition shall be sent to the Police Board for enforcement; a decision by which extradition is refused shall be sent to the Public Prosecutor's Office for the commencement of criminal proceedings.

(19.04.00 entered into force 01.07.00 - RT I 2000,35,222)

(4) A decision on extradition shall be communicated to the person to be extradited in a language he or she understands and against his or her signature.

(5) If a decision on extradition is not contested or the term for contestation of the decision expires, the time and place for thetransfer of the person to a foreign state shall be determined.

§ 408. Submission of application for extradition to foreign state

(1) If a person suspected of the commission of a criminal offence, the accused or accused at trial is in a foreign state and absconds the criminal proceeding, or if a convicted offender absconds the enforcement of a court judgment and it is necessary to request his or her extradition, a judge shall, on the basis of a reasoned order of a preliminary investigator and on the proposal of a prosecutor in the Public Prosecutor's Office, decide the grant of permission for the taking of the person into custody.

(2) A prosecutor in the Public Prosecutor's Office prepares an application for the extradition of a person from a foreign state. An application shall be in writing and have the following annexes:

1) a certified copy of a judgment of conviction or a ruling on taking into custody;

2) data relating to the criminal offence in connection to which extradition is requested; the time and place of commission of the criminal offence, and a reference to the corresponding section, subsection and clause of criminal law;

3) copies of necessary legislation;

4) a description of the person whose extradition is requested and data to facilitate the establishment of his or her identity and citizenship;

(3) The submission of an application for extradition shall be decided by the Minister of Justice or a legislative authority appointed by him or her.

13

(4) In cases of urgency, a foreign state may be requested to take the person to be extradited into provisional custody before the submission of an application for extradition.

(5) The guarantees with regard to the treatment of an extradited person granted to a foreign state upon application for extradition are mandatory to the Republic of Estonia.

§ 409. Transit of person to be extradited

A prosecutor of the Public Prosecutor's Office shall, through the mediation of the Ministry of Justice, request a permission for the transit of a person to be extradited and decide the grant of permission for transit through the Republic of Estonia.

(19.04.00 entered into force 01.07.00 - RT I 2000,35,222)

§ 410. Commencement and assumption of criminal proceedings regarding criminal offences committed outside of territory of Republic of Estonia

(19.04.00 entered into force 01.07.00 - RT I 2000,35,222)

(1) The Chief Public Prosecutor shall:

(19.04.00 entered into force 01.07.00 - RT 12000,35,222)

1) pursuant to § 5 of the Criminal Code, commence criminal proceedings regarding an act with elements of a criminal offence which is committed outside of the territory of the Republic of Estonia;

(19.04.00 entered into force 01.07.00 - RT I 2000,35,222)

2) decide the transfer, discontinuance or suspension of criminal proceedings regarding a criminal offence to which foreign criminal law is applicable;

3) decide the transfer of proceedings and the commencement of criminal proceedings if extradition of a person to a foreign state is refused.

(19.04.00 entered into force 01.07.00 - RT I 2000,35,222)

(2) In criminal matters specified in this section, a summary of charges shall be approved and the criminal matter shall be sent to the court by the Chief Public Prosecutor pursuant to the procedure prescribed in this Code.

(19.04.00 entered into force 01.07.00 - RT I 2000,35,222)

(3) Hearing of criminal matters specified in this section is within the jurisdiction of the Tallinn City Court.

§ 411. Seizure and transfer of property at request of foreign state

14

(1) Seizure of property for securing a civil action or seizure may be carried out also if the criminal proceedings are conducted in a foreign state and the competent authorities of the foreign state have requested the transfer of the property, provided that the act which is the basis for the request is punishable pursuant to criminal procedure both in Estonia and in the place of commission of the act and the satisfaction of the application is in compliance with the legislation of the Republic of Estonia.

(22.03.00 entered into force 17.04.00 - RT I 2000, 29, 173)

(2) An application shall be satisfied if the property to be transferred:

1) may be needed in the requesting state as physical evidence or

2) has been acquired as a result of a criminal offence and, at the moment of taking a person whose extradition is requested into custody, is in the possession of the person, or is found later.

(3) Seizure of property shall be carried out pursuant to the procedure provided for in this Code.

(4) The rights of third persons to transferred property shall be retained. In the case of existence of such rights, property shall be returned to the party who received the application immediately after the court without charge.

§ 412. Permission of court for transfer of property to foreign state.

(1) A permission for the transfer of property to a foreign state is granted by a county or city court judge on the basis of a reasoned ruling submitted to him or her.

(2) Upon granting a permission, a judge shall decide whether the transfer of property is permitted by the state and is practicable.

(3) If a county or city court judge refuses to grant a permission for the transfer of property, he or she shall make a reasoned ruling. The county or city court judge shall sign the ruling and certify it by the court seal.

§ 413. Submission of application for seizure or transfer of property to foreign state

(22.03.00 entered into force 17.04.00 - RT I 2000,29, 173)

An application for the seizure or transfer of property shall be submitted to a foreign state by the Minister of Justice or a legal authority appointed by him or her.

(22.03.00 entered into force 17.04.00 - RT I 2000, 29, 173)

§ 4131. Mutual assistance upon execution of court judgment of foreign state

Assistance may be provided to a foreign state upon imposition of an imposed punishment or

15

other sanctions if the foreign state submits a valid application to the Ministry of Justice and appends the original or certified copy of the court judgment which has entered into force. If necessary, additional information shall be requested from the foreign state by a specified date. The Ministry of Justice shall send the application immediately to the Public Prosecutor's Office where the application is verified and promptly forwarded to a court.

(22.03.00 entered into force 17.04.00 - RT I 2000, 29, 173)

§ 4132. Scope of assistance

(1) It is prohibited to provide assistance upon imposition of a punishment or other sanction imposed in a foreign state if

1) the judgment which is the basis for the application is not final or has not entered into force;

2) the judgment is not made by an independent and impartial court;

3) the judgment is made on default;

4) the right of defence is not ensured to the accused or criminal proceedings are not conducted in a language which he or she understands;

5) the person is punished because of his or her race, nationality, religious or political values;

6) an act for the commission of which a punishment or other sanction has been imposed, which does not bring about punishment pursuant to Estonian law or for which Estonian law does not prescribe such punishment or sanction;

7) an Estonian court has convicted a person of the same charge, with respect to him or her criminal proceedings have not been commenced or criminal proceedings have been terminated or

8) pursuant to Estonian acts execution of the court judgment has expired.

(2) If a judgment to confiscate made in a foreign state pertains to a third person, it shall not be executed if

1) the third person has not been given the opportunity to protect his or her interests or

2) the judgment is not in accordance with a civil law judgment made in the same matter pursuant to Estonian law. .

(22.03.00 entered into force 17.04.00 - RT I 2000, 29, 173)

§ 4133. Jurisdiction

16

The Tallinn City Court shall decide on recognition of a court judgment of a foreign state.

(22.03.00 entered into force 17.04.00 - RT I 2000,29, 173)

§ 4134. Right to representation

If a foreign state applies for the assumption of execution of confiscation, a representative shall be provided to a convicted offender and third persons. Sworn advocates or the senior clerks or clerks thereof, and other persons who have the permission of the court may be representatives.

(22.03.00 entered into force 17.04.00 - RT I 2000,29, 173)

§ 4135. Court session

(1) A judge shall hear the recognition of a court judgment of a foreign state sitting alone within ten working days after the court receives the application. If necessary, additional information shall be requested through the Ministry of Justice by a specified date.

(2) Upon deciding on confiscation, the participation of third persons in the proceedings is mandatory.

(3) The participation of a public prosecutor in a court session is mandatory.

(22.03.00 entered into force 17.04.00 - RT I 2000, 29, 173)

§ 4136. Court rulings

(1) A court shall make one of the following rulings:

1) shall declare the execution of a court judgment of a foreign state admissible or

2) shall declare the execution of a court judgment of a foreign state non-admissible.

(2) If the execution of a court judgment of a foreign state is admissible, the punishment imposed in the foreign state shall be qualified. A court shall send the copy of a court ruling to the Ministry of Justice who notifies the foreign state thereof.

(22.03.00 entered into force 17.04.00 - RT I 2000,29, 173)

§ 4137. Qualification of punishment imposed in foreign state

(1) If the execution of a court judgment of a foreign state is admissible, a court shall determine the punishment subject to execution in Estonia. A punishment imposed in a foreign state shall be compared to a punishment prescribed for the same act

17

in the Estonian Criminal Code.

(2) The qualified punishment shall by nature as much as possible correspond to the punishment imposed in a foreign state. A court shall take into account the degree of the punishment imposed in a foreign state but it shall not exceed the maximum rate prescribed in the sanction of the corresponding section of the Criminal Code.

(3) If the length of sentence has not been determined in a foreign state, a court shall do it in compliance with the principles of the Criminal Code.

(4) It is not permitted to aggravate a punishment imposed in a foreign state.

(5) Upon conditional deferral of the enforcement of a punishment in a foreign state or release of a person on parole, a court shall do the same pursuant to the corre$ponding provisions of the Criminal Code.

(6) A fine and a sum of money subject to confiscation shall be converted into Estonian kroons on the basis of the exchange rate on the date of recognition.

(22.03.00 entered into force 17.04.00 - RT I 2000, 29, 173)

§ 4138. Provision of assistance upon confiscation

In the case of confiscation, assistance shall be provided to a foreign state if a court has considered the execution of the court judgment of the foreign state admissible.

(22.03.00 entered into force 17.04.00 - RT I 2000, 29, 173)

§ 4139. Confiscated property

The provisions of this Code apply to confiscated property unless the states have agreed otherwise.

(22.03.00 entered into force 17.04.00 - RT I 2000,29, 173)

§ 414. Continuation of enforcement of sentence of person sentenced in foreign state in Republic of Estonia

(1) Under the conditions provided for in the European Convention on the Transfer of Sentenced Persons, the following procedures may be applied with regard to persons sentenced in a foreign state:

1) to continue the enforcement of an imposed sentence without the amendment thereof or

2) to continue the enforcement of an imposed sentence without a legal reassessment and bring the charges, on the basis of a court ruling, into conformity with the sanctions prescribed for a similar criminal offence by the criminal acts in force in the Republic of Estonia, or

18

3) to reassess the charges by a court judgment and substitute the imposed sentence by sanctions prescribed for the same criminal offence in the Republic of Estonia.

(2) The amendment of a sentence imposed by a court of a foreign state and the legal reassessment of charges on the basis of a proposal of a prosecutor in the Public Prosecutor's Office is within the jurisdiction of the Tallinn City Court. The participation of a prosecutor from the Public Prosecutor's Office in a court session is mandatory.

(3) At the request of a foreign state, the Minister of Justice shall, before the transfer of a person sentenced in the foreign state, specify which of the procedures provided for in subsection (1) of this section shall be applied. A proposal shall be made to the Minister of Justice by a prosecutor in the Public Prosecutor's Office.

19

Annex 2

Anti-corruption Act

Passed 27 January 1999 (RT* I 1999, 16,276), entered into force 28 February 1999, amended by the following Acts: 14.03.2000 entered into force 29.03.2000 - RT I 2000,25, 145 09.11.1999 entered into force 06.12.1999 - RT 11999,87, 791.

Chapter 1

General Provisions

§ 1. Scope of application of Act

This Act provides the legal bases for the prevention of corruption and prosecution of officials involved in corruption.

§ 2. Means of corruption prevention

The means to prevent corruption are the following:

1) declaration of the economic interests of officials and persons listed in § 4 of this Act and disclosure of declarations of economic interests in the cases prescribed by law;

2) restriction on employment and activities specified in Chapter 3 of this Act; 3) procedural restrictions specified in Chapter 4 of this Act.

§ 3. Office and official position

(1) For the purposes of this Act, an office is a place of employment or service to which a person has been elected, appointed, or hired under an employment contract.

(2) Official position is the competence of an official arising from the office to adopt decisions binding to other persons, perform acts, participate in making decisions concerning privatisation, transfer or grant of use of municipal property and the obligation to fulfil his or her official duties honestly and lawfully.

§ 4. Official

(1) Pursuant to this Act, an official is a state or local government official who has an official position provided for in subsection 3 (2), or a non-staff public servant performing his or her duties.

(2) For the purposes of this Act, the following are also deemed to be officials:

1) members of the Riigikogut; 2) the President of the Republic; 3) members of the Government of the Republic;

20

4) the Chief Justice and justices of the Supreme Court; 5) the Chairman and members of the Board of the Bank of Estonia, the President of the Bank

of Estonia; 6) the Commander (Commander-in-Chief) ofthe Armed Forces; 7) the Auditor General; 8) the Legal Chancellor; 9) heads of foreign missions of Estonia; 10) the State Secretary; 11) county governors; 12) the Chief Public Prosecutor and prosecutors; 13) judges of administrative, county, city and circuit courts; 14) members of rural municipality and city councils; 15) members of rural municipality and city governments, city district elders; 16) members of administrative councils of rural municipality districts and city districts; 17) notaries; 18) police officers; 19) bailiffs, prison officers and probation officers; 20) officers of the armed forces, armed forces officials, border guard officials, rescue service

officials, and officials of the National Defence League; 21)the Commander of the National Defence League, members of the General Staff and

central bodies of the National Defence League, and heads of units of the National Defence League and members of the bodies thereof;

22) members of the management boards and supervisory boards of companies with state participation;

23) members of the management boards and supervisory boards of companies with local government participation;

24) members of the management boards and supervisory boards of companies with the participation of a legal person in public law;

25) members of a body making decisions on transfer of state assets or municipal property or property of other legal persons in public law.

(14.03.2000 entered into force 29.03.2000 - RT I 2000, 25, 145)

§ 5. Definition of act of corruption, relationship involving risk of corruption and income derived from corrupt practices

(1) An act of corruption is the use of official position for self-serving purposes by an official who makes undue or unlawful decisions or performs such acts, or fails to make lawful decisions or perform such acts.

(2) A relationship involving the risk of corruption is a relationship of an official with another person which is created or may be created if the official violates of the restrictions on employment and activities or the procedural restrictions provided for in Chapters 3 or 4 of this Act.

(3) Income derived from corrupt practices is economic or other benefit which an official directly or indirectly receives from another person for committing an act of corruption or on the condition that an act of corruption will be committed in the future:

21

1) as a monetary payment; 2) as a gift; 3) as remuneration in kind, a useful favour or advantage; 4) by way of transfer without charge, or sale below the market price of shares, share

certificates and other securities to him or her; 5) by way of accepting an offer to become a co-owner of an immovable, a partner or

shareholder of a public limited company or other company; 6) as economic or other benefit not set out in clauses 1) - 5) of this subsection.

§ 6. Mandatory prevention of relationships involving risk of corruption

(1) An official shall refrain from acts of corruption or entry into relationships involving the risk of corruption. Subsections (2) and (3) of this section apply to prevent the risk of corruption which may result from the contract of marriage.

(2) An official who has a relationship involving the risk of corruption or who creates such relationship or receives a proposal to do so, shall promptly notify his or her immediate superior or a person or body with employment or appointment authority or a body with election authority thereof in writing. To terminate the relationship, he or she shall apply for the relocation of himself or herself or the other party to another position, or for the conclusion of transactions to be entrusted to another person, or shall take other steps to terminate the relationship involving the risk of corruption which has been or may be created.

(3) Prior to commencing performance of the duties of employment or service, an official shall notify his or her immediate superior or a person or body with employment or appointment authority or a body with election authority of the given name and surname, personal identification code, date of birth and place of employment or service of his or her spouse in writing. An official shall promptly give notification of changes in the aforementioned information.

(4) Failure to give notification of a relationship involving the risk of corruption shall bring about liability pursuant to law.

Chapter 2

Declaration of Economic Interests

§ 7. Purpose of declaration of economic interests

The purpose of a declaration of economic interests is to get an overview of the economic interests of an official which may promote or cause a conflict of private and public interests, the commitment of an act of corruption or the creation of a relationship involving the risk of corruption.

(14.03.2000 entered into force 29.03.2000 - RT I 2000,25, 145)

§ 8. Definition of declaration of economic interests

22

A declaration of economic interests (hereinafter declaration) is a document in which an official declares information concerning his or her property, proprietary obligations and other circumstances which allow to determine the economic interests and financial situation of the official.

(14.03.2000 entered into force 29.03.2000 - RT I 2000,25, 145)

§ 9. Content of declaration

(1) A declaration shall contain the following information concerning the person submitting the declaration:

1) immovable property (including structures and parts thereof until entry in the land register) (use, location, land registry jurisdiction and registered immovable property number);

2) vehicles entered in the state register (type of vehicle, make, and year of production); 3) the holding of shares, other securities (share certificates in investment funds, bonds,

convertible bonds, privatisation vouchers, certificates proving the right or obligation of purchase or sale (option), etc.), and shares (issuer, class, amount, the nominal value of one unit, and the total value of each article in the case of shares and convertible bonds);

4) debts and contracts of suretyship (creditor and amount of debt) to banks and other persons if the amount of debt exceeds six months' salary or 50 000 kroons a year, if salary is not paid in the corresponding office;

5) other proprietary obligations, if the amount of debt or the possible debt-claim (leasings, contracts of suretyship, pledges, mortgages, real encumbrances, etc.) exceeds six months' salary or 50 000 kroons a year, if a salary is not paid in the corresponding office; (14.03.2000 entered into force 29.03.2000 - RT I 2000,25, 145)

6) other income (salary and additional remuneration if the official does not receive a salary for the office, including remuneration received from supervisory boards, interest, pensions, and other remuneration and sources of income) (14.03.2000 entered into force 29.03.2000 - RT I 2000, 25, 145)

7) bank accounts (bank, type of account and number of accounts); 8) taxable income (shall be completed on the basis of a natural person income tax return of

the preceding year submitted to the Tax Board); 9) dividend income (shall be completed on the basis of a natural person income tax return of

the preceding year submitted to the Tax Board).

§ 10. Declaration of property in common or joint ownership

(1) The things, rights and obligations in common or joint ownership (joint property of spouses and other joint ownership provided by law) listed in § 9 of this Act shall be declared and the share of the official in the common ownership and the estimated share in joint ownership shall be indicated; a corresponding notation shall be made concerning the property which belongs to the spouse of the official.

(2) If an official has entered into a marital property contract, he or she shall submit the copy of the marital property contract entered in the marital property register to a depositary of declarations within one month as of entry into the contract or amendment thereof. Upon disclosure of a declaration, the content of the marital property contract shall not be disclosed.

23

(14.03.2000 entered into force 29.03.2000 - RT I 2000, 25, 145)

§ 11. Declaration fonn

(1) A declaration shall be submitted on the fonn set out in Annex 1 to this Act. The State Chancellery shall arrange the printing of declaration fonns. For the submission of a declaration, a depositary of declarations shall give or send the fonn to the person submitting the declaration at least one month before the expiry of the tenn for the submission of declarations. A depositary of declarations shall make an entry in the register maintained by the depositary and shall indicate the person who submitted the declaration, the date of submission of the declaration and the number of the declaration.

(2000 entered into force 2000 - RT I 2000,)(14.03.2000 entered into force 29.03.2000 - RT I 2000,25,145)

(2) If the person who is required to submit a declaration has not received the declaration fonn by the time specified in subsection (1) of this section, he or she shall, in order to receive the declaration, address a depositary of declarations at a time which enables the timely submission of the declaration.

(14.03.2000 entered into force 29.03.2000 - RT I 2000, 25, 145)

§ 12. Depositary of declarations

(14.03.2000 entered into force 29.03.2000 - RT I 2000, 25, 145)

(1) A depositary of declarations is an official to whom a declaration is submitted or an official designated by him or her. In the cases provided for in this Act, a depositary of declarations is a committee designated therefor.

(14.03.2000 entered into force 29.03.2000 - RT I 2000,25, 145)

(2) A depositary of declarations shall organise the timely collection of declarations and the depositing and verification thereof.

(14.03.2000 entered into force 29.03.2000 -:- RT I 2000, 25, 145)

(3) Declarations shall be deposited such that nobody except the head of the agency or an official designated by him or her has access thereto. The head of an agency or an official designated by him or her to be the depositary of declarations shall not disclose the infonnation given in a declaration, except in the cases provided for in this Act.

(4) Declarations shall be deposited in the office of a depositary of declarations for three years as of the submission thereof. Thereafter, the declarations shall be given to the State Archives for pennanent preservation pursuant to the procedure provided for in the Archives Act (RT I 1998,36/37,552; 1999, 16,271).

(14.03.2000 entered into force 29.03.2000 - RT I 2000, 25, 145)

24

§ 13. Tenn for submission of declaration

(1) A declaration shall be submitted every year one month after expiry of the tenn for submission of income tax returns or within one month after the date of commencement of work in an office, unless otherwise provided by this Act.

(2) If, after the submission of a declaration during the tenn specified in subsection (1) of this section, the composition of the property or the structure thereof declared by the official changes significantly, the official shall submit a new declaration within one month after the change occurs. A change in the financial situation is deemed to be significant if it involves a change to the extent of at least 30 per cent or over 100 000 kroons.

(3) Officials specified in subsection 4 (2) of this Act, with the exception of persons specified in clauses (2) 1) and 2), shall submit a declaration to the fonner depositary of declarations within two years after leaving their posts.

(14.03.2000 entered into force 29.03.2000 - RT I 2000,25, 145)

§ 14. Submission of declaration

(1) An official shall submit a declaration to the head of the agency, a person designated by him or her or another person designated by this Act.

(2) Members of the Riigikogu, the President of the Republic, members of the Government of the Republic, the Chainnan and justices of the Supreme Court, the Chainnan and members of the Board of the Bank of Estonia, the President of the Bank of Estonia, the Commander and Commander-in-Chief of the Anned Forces, the Auditor General, the Legal Chancellor, ambassadors, the Chief Public Prosecutor and public prosecutors, the chainnen of circuit courts, the chainnen of administrative, county and city courts shall submit declarations to the committee designated by the Riigikogu.

(09.11.1999 entered into force 06.12.1999 - RT 11999,87, 791; 14.03.2000 entered into force 29.03.2000 - RT I 2000,25, 145)

(3) The State Secretary, county governors, chainnen of rural municipality and city councils, heads of rural municipality and city governments and rural municipality district and city district elders shall submit declarations to the Auditor General.

(4) Members of a local government council, local government officials and non-staff public servants perfonning the duties of local government officials shall submit declarations to the committee designated by the councilor to a member of the council.

(5) A member of the directing body of a person in public law shall submit a declaration to the supervisory body of the same person in public law. A member of the supervisory body of a person in public law shall submit a declaration to the committee designated by the Riigikogu.

(6) A member of the directing or supervisory body of a company in which the state has a majority holding shall submit a declaration to the minister who directs the ministry which exercises the state shareholder rights in the company, unless otherwise prescribed by law.

25

(61) Members of the management boards and supervisory boards of companies with majority local government participation shall submit declarations to a committee appointed by the local government councilor to a council member.

(14.03.2000 entered into force 29.03.2000 - RT I 2000, 25, 145)

(7) Judges of administrative, county, city and circuit courts, and senior prosecutors, prosecutors and notaries shall submit declarations to the Minister of Justice.

(14.03.2000 entered into force 29.03.2000 - RT I 2000, 25, 145)

(8) The Riigikogu committee specified in subsection 14 (2) of this Act shall be informed of the figures of the declarations of economic interests submitted by the categories of officials listed in subsections (3)-(7) of this section within two months after the submission of the declarations to a depositary of declarations.

(14.03.2000 entered into force 29.03.2000 - RT I 2000,25, 145)

(9) The person submitting a declaration is required to submit one declaration. If, pursuant to this Act, there are different depositaries of declarations with respect to the person sUbmitting a declaration, he or she is required to submit a notice concerning the submission of a declaration to all the depositaries of declarations. A depositary of declarations set out in the notice is required to forward the copy of a declaration to other depositaries of declarations at their request.

(14.03.2000 entered into force 29.03.2000 - RT I 2000, 25, 145)

§ 15. Disclosure of information given in declaration

(1) Everyone has the right to disclose the information given in his or her declaration.

(2) The information given in the declarations of members of the Riigikogu, the President of the Republic, members of the Government of the Republic, the Chairman and members of the Board of the Bank of Estonia, the President of the Bank of Estonia, the Commander and Commander-in-Chief of the Armed Forces, the Auditor General, the Legal Chancellor, ambassadors, the Chief Public Prosecutor, the Chairman and justices of the Supreme Court, the State Secretary, the chairmen and members of circuit courts, the chairmen and members of administrative, county and city courts, secretaries general of ministries, county governors, chairmen of rural municipality and city councils, heads of rural municipality and city governments shall be disclosed in the Riigi Teataja Lisat.

(09.11.1999 entered into force 06.12.1999 - RT 11999,87, 791; 14.03.2000 entered into force 29.03.2000 - RT I 2000, 25, 145)

(3) Declarations of members of local government councils and members of city governments and rural municipality governments shall be disclosed in a pUblication designated by the city councilor rural municipality council. The local government council shall decide the disclosure of the declarations of other local government officials and determine the procedure for disclosure.

26

(4) An agency or official to whom a declaration has been submitted, or a committee designated to be the depositary of declarations shall submit the information given in the declaration for disclosure.

(14.03.2000 entered into force 29.03.2000 - RT I 2000, 25, 145)

(5) Information given in a declaration shall be disclosed without changing the location of information in the declaration, but without the addresses, personal identification codes and data concerning the relatives and relatives by marriage of the official, and without indicating the income set out in clauses 9 (1) 6), 8) and 9) of this Act.

(14.03.2000 entered into force 29.03.2000 - RT I 2000,25, 145)

(6) Information contained in a declaration not subject to disclosure shall not be disclosed.

§ 16. Verification of declaration

(1) A depositary of declarations may verify a declaration on the depositary's own initiative and is required to verify a declaration in the case of a suspicion of corruption.

(14.03.2000 entered into force 29.03.2000 - RT I 2000, 25, 145)

(2) The depositaries of declarations are required to report to the Riigikogu committee on the performance of the duties imposed on them by this Act and, at the request of the committee, submit data for the performance of the rights and duties set out in subsection (3) of this section.

(3) Everyone who has SuspICIOns of corruption with regard to a person specified in subsections 4 (1) and (2) of this Act has the right to submit a reasoned application to access the declaration of the official to the Riigikogu committee specified in subsection 14 (2) of this Act or the depositary of declarations of the official. The recipient of an application has the right and duty to verify the suspicions presented in the application and is required to respond to the applicant in writing within one month as of the date of receipt of the application. The results of verification and the facts in favour thereof shall be indicated in the response. If the facts presented in an application prove to be even partly right, the data given in the verified declaration shall be added to the response pursuant to the provisions of subsection 15 (5) of this Act.

(14.03.2000 entered into force 29.03.2000 - RT I 2000, 25, 145)

(4) Depositaries of declarations shall verify the content of data presented in the declarations and changes thereto at least once a year.

(14.03.2000 entered into force 29.03.2000 - RT I 2000, 25, 145)

§ 17. Verification of declaration in case of suspicion of corruption

In the case of a suspicion of corruption, the State Audit Office and other persons or the

27

committee authorised to verify declarations have the right to verify the following without charge:

1) the natural person income tax return of an official submitted to the Tax Board; 2) data concerning an official which is necessary for the verification of the declaration and is

deposited in registers and databases maintained by the state and local governments; 3) data concerning an official which is necessary for the verification of the declaration of

economic interests and is deposited in credit institutions.

§ 18. Failure to submit declaration or presentation of false information therein

(1) Failure to submit a declaration by the due date prescribed in this Act without good reason, and the presentation of knowingly false information in the declaration shall bring about liability pursuant to the procedure provided by law.

(2) If an official specified in subsection 15 (2) of this Act fails to submit a declaration by the due date or presents knowingly false information therein, this shall be the basis for the commencement of criminal proceedings pursuant to § 1643 of the Criminal Code (RT 1992, 20, 288; RT I 1997, 21122, 353; 28, 423; 30, 472; 34, 535; 51, 824; 52, 833 and 834; 81, 1361; 86,1461; 87,1466-1468; 1998,2,42; 4, 62; 17,265; 23, 321; 30,412; 36/37, 552 and 553; 51, 756 and 759; 59, 941; 98/99,1576; 107, 1766; 108/109, 1783; 1999,4,53).

(3) If a member of the Riigikogu or a local government council fails to submit a declaration by the due date, the chairman of the Riigikogu or local government council shall publish a corresponding official notice in the Riigi Teataja Lisa within one month after the due date for submission of the declaration.

Chapter 3

Restrictions on Employment and Activities

§ 19. Definition of restriction on employment and activities

(1) For the purposes of this Act, a restriction on employment and activities means a restriction to operate as an undertaking, hold a second job or work in a relationship of direct subordination with a close relative or close relative by marriage, while in public service.

(2) Officials specified in subsection 4 (1) ofthis Act shall not:

1) hold a second job with a work load higher and at a time different than permitted by the immediate superior if such employment damages the reputation of the position or office, or if performance of the duties of employment also means supervision over the other employer;

2) be a member of the directing or supervisory body of a company, except the representative of the state, a local government or legal person in public law of a company with the participation of the state, local government or legal person in public law;

3) be the director of a branch of a foreign company; 4) be employed in an office where an official who directly monitors him or her, or is his or

28

her immediate superior is a close relative or close relative of the official by marriage; 5) be a member of a legal person in public law and, at the same time, the directing or

supervisory body of a legal person directly monitored by the legal person in public law; 6) be a member of the directing or supervisory body of a company with state or local

government holding within three years after resignation from the public service.

(3) An official may operate as an undertaking, be a partner of a general partnership or general partner of a iimited partnership only with the permission of the person or agency who has appointed or elected him or her to office or hired under an employment contract if such activity does not hinder the performance of duties of employment or damage the reputation of the position or office. Everyone has the right to obtain information from the official who has appointed or elected an official to office or hired him or her under an employment contract concerning this permission.

(4) An official shall not exercise supervision over the activities of himself or herself as an undertaking, or over a general partnership of which he or she is a partner or a limited partnership of which he or she is a general partner in performing his or her duties of employment or service.

(5) For the purposes of this Act, close relatives mean grandparents, parents, brothers, sisters, children and grandchildren; close relatives by blood mean the spouse, his or her parents, brothers, sisters and children.

§ 20. Special rules for restrictions on employment and activities of officials

(1) The restrictions on employment and activities of officials specified in clauses 4 (2) 1)-16) of this Act are not regulated by § 19 of this Act but are provided for in §§ 63 and 84 of the Constitution of the Republic of Estonia and in the Acts concerning the activities of the Riigikogu, the Government of the Republic, the Legal Chancellor, the State Audit Office, the Bank of Estonia, prosecutor's offices, armed forces and the border guard, judges, the police, notaries' offices, bailiffs and local governments, and in other legislation which separately regulates the official position, rights and obligations of the officials of such categories.

(09.11.1999 entered into force 06.12.1999 - RT 11999,87, 791)

(2) Taking into account the specific character of some offices, the Government of the Republic may establish a list of offices the employment in which may be permitted, regardless of the restrictions provided for in clauses 19 (2) 4) and 5) of this Act, by the minister in whose area of government the place of employment is, provided there is no risk of corruption involved. The minister shall justify the grant of permission every time. Upon the establishment of exceptions, the person who establishes the exceptions shall exercise regular supervision over the justification thereof and submit a corresponding report together with the opinion of the State Audit Office to the Riigikogu committee specified in subsection 14 (2) of this Act.

(14.03.2000 entered into force 29.03.2000 - RT I 2000,25, 145)

(3) Taking into account the specific character of some offices, a local government may establish a list of offices the employment in which may be permitted, regardless of the

29

restrictions provided for in clauses 19 (2) 4) and 5) of this Act, by the executive body of the local government, provided there is no risk of corruption involved. The executive body of a local government shall justify the grant of pennission every time. Upon the establishment of exceptions, the person who establishes the exceptions shall exercise regular supervision over the justification thereof and submit a corresponding report together with the opinion of the county governor to the committee or member of the council specified in subsection 14 (4) of this Act.

(14.03.2000 entered into force 29.03.2000 - RT I 2000, 25, 145)

Chapter 4

Procedural Restrictions

§ 21. Definition of procedural restrictions

(1) For the purposes of this Act, a procedural restriction means a prohibition to perfonn acts which enable to receive income derived from corrupt practices.

(2) Procedural restrictions do not apply to activities as a result of which income on shares of a company is received, unless otherwise provided by law. An official may also receive income as royalties, revenue from patents, interest on deposits, on immovables which are subjected to commercial lease or use by other persons, fee for the works published in print or electronic media, and other income which does not presume the employment of the recipient thereof to promote the economic benefit of another person, unless otherwise provided by law.

§ 22. Prohibition on acceptance of remuneration or more than adequate remuneration

(1) An official who is required to provide services or make decisions without charge shall not demand or accept remuneration therefor in money, in kind or as a favour.

(2) An official who is required to provide services pursuant to the official procedure for a specific remuneration in money, shall not demand or accept remuneration therefor different from the remuneration set out in the rates or price lists.

§ 23. Duty to give notification of bribery

(1) An official is required to notify the immediate superior or head of the agency and the police in writing of any offering, giving or acceptance of a bribe which becomes known to him or her.

(2) Failure to give notification of an offering, giving or acceptance of a bribe pursuant to the procedure provided for in this Act shall be the basis for the release of the official in the public service from service.

§ 24. Prohibited transactions

(1) An official shall not engage in self-dealing, or conclude transactions of similar nature or

30

involving a conflict of interest. He or she shall not authorise persons subordinate to him or her to perform such transactions instead of him or her.

(2) Self-dealing, which is prohibited, means inter alia the following:

1) concluding, with regard to property entrusted to him or her by an agency, transactions with oneself or a legal person the shares of which belong either wholly or partially to him or her, his or her close relatives or close relatives by marriage, or a board or decision­making body of which he or she is a member;

2) concluding, as a person entitled to represent a state agency in transactions, transactions with the state through an administrative agency concerned, or concluding, as a person entitled to represent a local government agency in transactions, transactions with a local government through an administrative agency concerned;

3) concluding, as a representative of the state or a local government, property transactions with other employers in whose employment he or she is;

4) concluding, as a representative of the state or a local government, property transactions with legal persons specified in subsection 25 (1) of this Act;

5) concluding, as a representative of the state or a local government, property transactions with a non-profit association or political party of which he or she is a member;

6) concluding, as a representative of the state or a local government, property transactions with an employer, company, non-profit association or political party over the activities of which he or she exercises supervision;

7) concluding, as a representative of the state or a local government, property transactions with one's close relatives, close relatives by marriage or oneself.

(3) The restrictions concerning the representatives of the state or a local government provided for in subsection (2) of this section also apply to the representative of a legal person in public law.

(4) Transactions concluded in violation of the prohibitions provided for in subsection (1) of this section are void.

§ 25. Conflict of interest

(1) A conflict of interest occurs if an official, in the course of his or her duties of employment, is required to make a decision or participate in the making of a decision which significantly influences the economic interests of the official, his or her close relatives or close relatives by marriage or legal persons, if the legal person is:

1) a general partnership, the partner of which the official, his or her close relative or close relative by marriage is;

2) a limited partnership, the general partner or limited partner of which the official, his or her close relative or close relative by marriage is;

3) a private limited company, the shareholder or member of the management board or supervisory board of which the official, his or her close relative or close relative by marriage is;

4) a public limited company, the shareholder or member of the management board or supervisory board of which the official, his or her close relative or close relative by marnage IS;

31

5) a commercial association, the member of the management board or audit committee of which the official, his or her close relative or close relative by marriage is;

6) other legal person in private law, the member of the directing or supervisory body of which the official, his or her close relative or close relative by marriage is.

(2) An official whose duty is to participate in the making of common decisions specified in subsection (1) of this section is required to notify promptly a body concerned and his or her immediate superior or a person or body with the employment or appointment authority thereof and forego the making of the decision. The person or body who has designated an official as a member of a body making common decisions, may designate another person for the one-time substitution of the official.

(3) An official who is competent to make decisions specified in subsection (1) of this section solely, is required to remove himself or herself from making the decision and notify his or her immediate superior of a conflict of interest; the immediate superior shall designate another official to make the decision.

(4) In this section, a decision does not mean legislation of general application.

§ 26. Restriction on acceptance of gifts

(1) An official shall not solicit, in connection with his or her duties of employment, gifts or other benefits made or granted by persons to him or her, his or her close relatives or close relatives by marriage.

(2) An official shall not accept gifts or consent to the benefits which are made or granted to him or her, his or her close relatives or close relatives by marriage, and the acceptance of which may directly or indirectly influence the impartial performance of his or her duties of employment or service.

(3) Gifts received in violation of the restrictions provided for in subsections (1) and (2) of this section shall belong to the employer of the corresponding official, unless otherwise provided by an international custom or diplomatic etiquette.

Chapter 5

Liability

§ 27. Punishment of person guilty of corruption

(1) An official who commits an act of corruption shall be punished under disciplinary, administrative or criminal procedure.

(2) An official who commits an act of corruption shall be released from service, or his or her employment contract shall be terminated due to the act of corruption.

(3) If an official has been punished for an act of corruption under administrative or criminal procedure, he or she shall be released from service due to the act of corruption.

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(4) Subsections (2) and (3) of this section do not apply to persons whose release from office or service is regulated by a specific Act.

Chapter 6

Implementing Provisions

§ 28. The Republic of Estonia Employment Contracts Act (RT 1992, 15116, 241; 1993, 10, 150;RTI 1993,26,441; 1995, 14, 170; 16,228; 1996,3,57;40,773;45,850;49,953; 1997, 5/6,32; 1998, 111, 1829) is amended as follows:

1) section 86 is amended by adding clause 12) worded as follows:

"12) due to an act of corruption.";

2) the title of § 103 is amended by adding the words "or upon commitment of act of corruption", and the text is amended by adding subsection (3) worded as follows:

"(3) An employer has the right to terminate an employment contract with each employee who commits an act of corruption on the basis prescribed in clause 86 12) of this Act.";

3) clauses 104 (2) 4)-7) are repealed.

§ 29. The Public Service Act (RT I 1995, 16,228; 1999, 7, 112) is amended as follows:

1) clause 164) is amended and worded as follows:

"4) who are in a close relationship (grandparents, parents, brothers, sisters, children, grandchildren) or a close relationship by marriage (spouse, spouse's parents, brothers, sisters, children) with an official or the immediate superior who has direct control over the corresponding position.";

2) section 16 is amended by adding clause 5) worded as follows:

"5) a person who has been punished for an act of corruption under administrative or criminal procedure.";

3) the end of subsection 17 (1) is amended by adding the words "or pursuant to law";

4) subsection 28 (1) is amended by adding the words "the public service code of ethics and" after the words "I am aware that";

5) subsection 59 (1) is amended and worded as follows:

"(1) A public servant shall perform his or her duties of employment in an accurate, timely and conscientious manner, expediently and without self-interest, pursuant to the public interest. The duties of employment are determined in this Act and other Acts, regulations and job

33

descriptions, and other legislation. A public servant shall also perform his or her duties pursuant to the public service code of ethics set out in Annex I to this Act and other codes of ethics established within the administrative agency.";

6) subsection 69 (1) is amended and worded as follows:

"(1) A state official shall not belong to the permanent directing body or permanent control or audit body of a commercial association, except as a representative of the state to the directing or supervisory body of an enterprise with holding ofthe state or a person in public law.";

7) section 75 is amended and worded as follows:

"§ 75. Duty to declare economic interest

An official is required to submit to a person or administrative agency with employment authority a declaration of his or her economic interests pursuant to the procedure and under the conditions provided for in the Anti-corruption Act.";

8) the text of § 76 is amended and worded as follows:

"(1) A public servant is prohibited from:

1) acquiring assets which are entrusted to him or her for concluding a transaction and belong to a person with whom he or she is in employment or service relationship and;

2) concluding, as a person entitled to represent a state agency in transactions, transactions with the state through the administrative agency concerned, or concluding, as a person entitled to represent a local government agency in transactions, transactions with a local government through the administrative agency concerned;

3) concluding, as a representative of the state or a local government, property transactions with legal persons specified in subsection 19 (2) of the Anti-corruption Act;

4) concluding, as a representative of the state or a local government, property transactions with a non-profit association or political party of which he or she is a member;

5) concluding, as a representative of the state or a local government, property transactions with an employer, company, non-profit association or political party, over the activities of which he or she exercises supervision;

6) concluding, as a representative of the state or a local government, property transactions with his or her close relatives, close relatives by marriage or himself or herself.

(2) Transactions concluded in violation of the prohibitions provided for in subsection (1) of this section are void.";

9) clause 84 3) is amended by adding the words "or ethic standards set for officials" after the words "moral standards";

10) Annex 1 is added to the Act worded as follows:

Annex 1 to Public Service Act

Public Service Code of Ethics

34

1. An official is a citizen in the service of people.

2. The activities of an official shall be based on respect for the Constitution of the Republic of Estonia provided for in the oath of office.

3. An official shall adhere, in his or her activities, to the legally expressed will of politicians who have received a mandate from the citizens.

4. Public authority shall be exercised solely in the public interest.

5. Public authority shall always be exercised pursuant to law.

6. The exercise of public authority shall always involve liability.

7. The exercise of public authority is, as a rule, a public activity.

8. An official shall be prepared to make unpopular decisions in the public interest.

9. A person exercising public authority shall endeavour to achieve as broad participation of citizens in the exercise of authority as possible.

I

10. An official shall always, in his or her activities, subject departmental interests to public interest.

11. An official shall be politically impartial in his or her activities.

12. An official shall make decisions based on public and generally understandable criteria.

13. An official shall avoid creating a situation which arouses or may arouse suspicion with regard to his or her impartiality or objectivity in considering matters under suspicion.

14. An official shall treat property entrusted to him or her economically, expediently and prudently.

15. An official shall use information which becomes known to him or her through official duties solely in the public interest.

16. A person exercising public authority is characterised by honesty and respect for the public and co-employees.

17. An official shall be polite and helpful when communicating with people.

18. An official shall be respectable, responsible and conscientious.

19. An official shall do his or her best in the public service by constant individual development.

20. An official shall facilitate the spread of the above principles in every way."

35

§ 30. The Criminal Code (RT 1992, 20, 288; RT I 1997, 21122, 353; 28, 423; 30, 472; 34, 535; 51, 824; 52, 833 and 834; 81, 1361; 86, 1461; 87, 1466-1468; 1998,2,42; 4, 62; 17,265; 23, 321; 30, 412; 36/37, 552 and 553; 51, 756 and 759; 59, 941; 98/99, 1576; 107, 1766; 1081109, 1783; 1999,4,53) is amended as follows:

1) subsection 27 (1) is amended by adding the words "or employment in the public service" after the words "operation in the particular area of activity", and the word "three" is substituted by the word "five";

2) section 1621 is added to the Code worded as follows:

"§1621. Violation of restrictions on employment and activities, or procedural restrictions established by Anti-corruption Act

Violation of restrictions on employment and activities, or procedural restrictions established by the Anti-corruption Act shall be punished by imprisonment for up to two years together with taking away the right of employment in the particular office or operation in the particular area of activity or employment in the public service if:

1) a significant proprietary damage or other serious consequence to the rights or interests of a person, the state or a local government protected by law has been caused thereby, or if

2) an administrative penalty has been imposed to the person at fault for the same act.";

3) section 1622 is added to the Code worded as follows:

"§ 1622. Failure to give notification of relationship involving risk of corruption

Failure to give notification of a relationship involving the risk of corruption shall be punished by a fine or imprisonment for up to one year together with taking away the right of employment in the particular office or operation in the particular area of activity or employment in the public service if:

I) a significant proprietary damage or other serious consequences to the rights or interests of a person, the state or a local government protected by law has been caused thereby, or if

2) an administrative penalty has been imposed to the person at fault for the same act.";

4) section 1623 is added to the Code worded as follows:

"§ 1623. Failure to perform duties related to collection, depositing or verification of declarations of economic interests

Failure to perform or unsatisfactory performance of the duties of collection, depositing or verification of declarations of economic interests by the head of an agency or another person responsible for the collection, depositing or verification of declarations of economic interests shall be punished by imprisonment for up to two years together with taking away the right of employment in the particular office or operation in the particular area of activity or employment in the public service if a significant proprietary damage or other serious

36

consequence to the rights or interests of a person, the state or a local government protected by law has been caused thereby.";

5) the title of § 1642 and subsections 1642 (2) and (3) the word "corruption" is substituted by the words "an act of corruption";

6) subsection 1642 (1) is amended and worded as follows:

"(1) For the purposes of this Act, an act of corruption is the making of undue or unlawful decisions or performance of such acts, or failure to make reasoned and lawful decisions or perform such acts by an official through the use of his or her official position for receiving income derived from corrupt practices or other self-serving purposes.";

7) section 1643 is amended and worded as follows:

"§1643. Failure to submit declaration of economic interests subject to disclosure, or presentation of false information therein

(1) Failure to submit a declaration of economic interests subject to disclosure in accordance with the requirements during the term, or presentation of incomplete or false information therein shall be punished by a fine or detention.

(2) The same act shall be punished by a fine or imprisonment for up to one year together with taking away the right of employment in the particular office or operation in the particular area of activity or employment in the public service if a significant proprietary damage or other serious consequence to the rights or interests of a person, the state or a local government protected by law has been caused thereby.";

8) section 1644 is added to the Code worded as follows:

"§ 1644. Failure to submit declaration of economic interests not subject to disclosure, or presentation of false information therein

Failure to submit a declaration of economic interests not subject to disclosure in accordance with the requirements during the term or presentation of incomplete or false information therein shall be punished by a fine or imprisonment for up to one year together with taking away the right of employment in the particular office or operation in the particular area of activity or employment in the public service if

1) a significant proprietary damage or other serious consequence to the rights or interests of a person, the state or a local government protected by law has been caused thereby, or if

2) administrative penalty has been imposed to the person at fault for the same act.";

9) section 1645 is added to the Code worded as follows:

"§ 1645. Submission of false information to person or agency or committee which verifies declarations of economic interests

(1) The submission of incomplete or false information or failure to submit information in

37

good time to a person or agency or the committee set out in the Anti-corruption Act which exercises lawful supervision over declarations of economic interests shall be punished by detention or imprisonment for up to six months.

(2) The same act shall be punished by imprisonment between six months and two years together with taking away the right of employment in the particular office or operation in the particular area of activity if a significant proprietary damage or other serious consequence to the rights or interests of a person, the state or a local government protected by law has been caused thereby.";

10) section 1646 is added to the Code worded as follows:

"§ 1646. Influence peddling

The acceptance of remuneration by an official who promises to influence another official to make a decision favourable to the person who gives the remuneration shall be punished by

fit imprisonment for up to two years.";

11) section 1663 is added to the Code worded as follows:

"§ 1663. Unlawful acceptance of remuneration by official

The acceptance of a more than adequate remuneration determined by an Act or other legislation for the provision of services or making of decisions by an official, or acceptance of remuneration for services without charge shall be punished by imprisonment for up to two years together with taking away the right of employment in the particular office or operation in the particular area of activity if

1) a significant proprietary damage or other serious consequence to the rights or interests of a person, the state or a local government protected by law has been caused thereby, or if

2) administrative penalty has been imposed to the person at fault for the same act.";

§ 31. Amendment of Credit Institutions Act

Section 46 of the Credit Institutions Act (RT I 1995, 4, 36; 1998, 59, 941; 110, 1811; 111, 1828) is amended by adding subsection 41 worded as follows:

"(41) On the basis of a written application of the depositary or person who verifies declarations of economic interests, or an official authorised therefor by him or her pursuant to the Anti-corruption Act, a credit institution is required to release information which is deposited in the credit institution, including information subject to banking secrecy which is necessary for the verification of declarations of economic interests, without charge."

§ 32. The Code of Administrative Offences (RT 1992,29, 396; RT I 1997, 66-68, 1109; 73, 1201; 81, 1361 and 1362; 86, 1459 and 1461; 87, 1466 and 1467; 93, 1561, 1563-1565; 1998, 2, 42; 17, 265; 23, 321; 30, 410; 34, 484; 36/37, 552 and 553; 38, 562; 51, 756 and 759; 52/53, 771; 60, 951 and 952; 64/65, 1004; 86/87, 1409; 98/99, 1574; 103, 1695; 108/109, 1783; 1999,4,53) is amended as follows:

38

1) Chapter 121 is added to the Code worded as follows:

"Chapter 121

Administrative Offences Related to Office

§ 1581. Violation of restrictions on employment and activities or procedural restrictions

A fine of 50 to 100 days' wages shall be imposed for the violation of restrictions on employment and activities or procedural restrictions established by the Anti-corruption Act if no significant proprietary damage or other serious consequence to the rights or interests of a person, the state or a local government protected by law has been caused thereby.

§ 1582. Failure to give notification of relationship involving risk of corruption

A fine of 50 to 100 days' wages or administrative detention shall be imposed for the failure to give notification of a relationship involving the risk of corruption if no significant financial loss has been caused thereby.

§ 1583. Failure to submit declaration of economic interests not subject to disclosure during term, or presentation of false information therein

A fine of 50 to 100 days' wages shall be imposed for the failure to submit a declaration of economic interests not subject to disclosure during the term or presentation of incomplete or false information therein if no significant proprietary damage or other serious consequence to the rights or interests of a person, the state or a local government protected by law has been caused thereby.

§ 1584. Failure to perform duties related to collection, depositing or verification of declarations of economic interests

A fine of 100 to 200 days' wages or administrative detention shall be imposed for the failure to perform or the unsatisfactory performance of the duties of the collection, depositing or verification of declarations of economic interests by the head of an agency or another person responsible for the collection, depositing or verification of declarations of economic interests.

§ 1585. Unlawful disclosure of content of declaration of economic interests

A fine of 100 to 200 days' wages or administrative detention shall be imposed for the unlawful disclosure of information contained in a declaration of economic interests.

§ 1586. Unlawful acceptance of remuneration by official

A fine of 50 to 200 days' wages shall be imposed for the acceptance of a more than adequate remuneration determined by an Act or other legislation for the provision of services by an official, or acceptance of remuneration for services without charge.";

2) subsection 186 (1) of the Code is amended by adding the numbers "1581, 1582, 1583, 1584, 1585, 1586," after the numbers "154 (1)";

39

3) clause 228 (1) 1) of the Code is amended by adding the numbers "1581, 1582, 1583, 1584, 1585, 1586" after the numbers "154 (1)".

§ 33. Implementation of Act

Transactions concluded in violation of clauses 24 (2) 1), 4) and 7) of this Act as of 16 November 1988 are void.

§ 34. Repeal of Anti-corruption Act

Upon entry into force of this Act, the Anti-corruption Act (RT I 1995, 14, 170; 68, 1142; 1998,41142,625) is repealed.

Annex 1 to Anti-corruption Act

Declaration of Economic Interests of Official

No ..... .

I. General Information

I.Given name and surname ..... 2.Personal identification code .. '" 3.0ffice ..... 4.Agency (employer) ..... 5.Salary grade and salary .....

Comments:

1. Salary grade shall be indicated by officials who have a salary grade.

2. Salary for office shall be declared.

3. Additional remuneration paid by the agency in addition to salary shall also be indicated.

4. Lack of salary shall be indicated if salary is not received.

Pursuant to § 7 of the Anti-corruption Act, I declare that I own property, discharge obligations and have sources of income as set out below. I am aware that failure to submit information by the due date, incomplete submission of information or submission of knowingly false information brings about liability pursuant to the procedure provided by law.

II. Information concerning Property

1. Immovable property (including structures and parts thereof until entry in the land register; unfinished constructions shall also be declared; in the case of property in joint or common ownership, the official's share therein shall be indicated):

40

(use) (county, rural municipality, city of location) (land registry jurisdiction) (registered immovable property number)

2. Automobiles, water craft and aircraft entered in a register:

(type of vehicle) (make) (year of production)

3. Shares and other securities:

(issuer) (class) (amount) (nominal value) (total value)

4. Bank accounts (bank, type of account and number of accounts): .....

(bank) (type of account)

III. Information concerning Proprietary Obligations

1. Debts to banks and other persons in private law; if the amount of debt exceeds the preceding six months' salary or 50000 kroons, if salary is not paid in the office:

(creditor) (outstanding debt at time of declaration)

2. Other proprietary obligations the amount of which at the time of declaration exceeds the preceding six months' salary or 50 000 kroons, if salary is not paid in the office (leasings, contracts of suretyship, mortgages, etc.):

IV. Information concerning Other Income

1. Other regular income (salary and additional remuneration in principal job if the official does not receive a salary for the office, and the amount thereof; compensations, including remuneration received from supervisory boards, as well as the supervisory boards shall be specified and the amount of remuneration; interest; pensions; remuneration received from employment, research and education; royalties; other income or sources of income together with the type of income):

V. Information concerning Taxable Income and Dividend Income

41

1. Taxable income (shall be completed on the basis of a natural person income tax return of the preceding year submitted to the Tax Board; if spouses submitted a joint income tax return, the part of the official shall be indicated separately) .....

2. Dividend income (shall be completed on the basis of a natural person income tax return of the preceding year submitted to the Tax Board): .....

VI. Information concerning Spouse, Parents and Children

(Only adults shall be indicated in the declaration)

Given name and surname

Relationship

1.

2.

3.

4.

5.

Personal identification code or

date of birth Place of service or employment and agency (employer)

Residence and

address

42

6.

7.

8.

Date of completion of declaration .....

I confirm that the information provided is correct ..... .

(signature)

(14.03.2000 entered into force 29.03.2000 - RT I 2000, 25, 145)

© Estonian Legal Translation Centre

43

Annex 3

Corruption-related criminal offences in the Criminal Code

Article 160, Definition of official

(1) Official is a person who is in an official capacity in an agency, enterprise or organization based on any fonn of ownership, if he or she has been given administrative, supervisory, management, operative or organizational duties, the duties of arranging the movement of material values or the duties of a representative of state authority by the state or the owner.

(2) In applying of Article 1642 of this Code, an official refers to persons listed in Article 4 of the Anti-Corruption Act (i. e. officials of state or local government, persons, who fulfil the duties of an official temporarily, the heads of constitutional institutions, ambassadors, state prosecutors, judges, notaries, the members of a local councils, police officers, bailiffs, prison officers, officials of the defence forces, border guard officers, heads of the state owned legal persons and persons, who decide over the exploitation of state property or it's expropriation).

Article 1621, Violation of restrictions of the position, act or activity established by

the Anti-Corruption Act

For the violation of restrictions of the position, act or activity established by the Anti­Corruption Act if:

1) this has caused material property loss or any other severe consequence to the statutory rights and interests of a person, state or local government or if

2) the offender has been imposed an administrative punishment for a similar activity,­the punishment shall be imprisonment for up to two years with deprivation of the right

of working in a certain position or acting in a certain area of activity or being in public servIce.

Article 1622, Not reporting of a relation in danger of corruption

For not reporting of a relation in danger of corruption if 1) this has caused material property loss or any other severe consequence to the

statutory rights and interests of a person, state or local government or if 2) the offender has been imposed an administrative punishment for a similar activity,­the punishment shall be a fine or imprisonment for up to one year with deprivation of

the right of working in a certain position or acting in a certain area of activity or being in public service.

Article 1623, Nonperformance of duties related to collecting, retaining and

controlling declarations of economic interests

44

For the nonperformance or undue performance of the duties related to collecting, retaining and controlling of declarations of economic interests by the executive of an agency or any other person responsible for collecting, retaining and controlling declarations of economic interests as specified in the Anti-Corruption Act, if this has caused material property loss or any other severe consequence to the statutory rights and interests of a person, state or local government -

the punishment shall be imprisonment for up to two years with deprivation of the right of working in a certain position or acting in a certain area of activity or being in public servIce.

Article 164. Accepting of bribe

(1) For receiving of property, a property right or any other property benefit as a bribe in person or through a mediator for performing or not performing an act in the interests of the briber that the official had to do or could have done in the official capacity - the punishment shall be imprisonment for up to four years with deprivation of the right of working in a certain position or acting in a certain area of activity.

(2) For the same activity: I) repeatedly or 2) by a group of persons or 3) extensively or 4) by extortion

- the punishment shall be imprisonment for up to seven years with deprivation of the right of working in a certain position or acting in a certain area of activity.

(3) The bribee shall be exempted from punishment if he or she was the first to inform voluntarily thereof in writing after receiving of property, a property right or any other property benefit, but before performing or not performing the act in the interests of the briber.

Article 1641• Bribe mediation

(1) For bribe mediation - the punishment shall be imprisonment for up to four years.

(2) For bribe mediation: 1) repeatedly or 2) by a person who has been imposed a punishment for bribery or 3) using official capacity

- the punishment shall be imprisonment for up to seven years.

(3) The bribe mediator shall be exempted from punishment if the bribe mediation has been extorted from him or her or if he or she was the first to inform voluntarily thereof in writing after bribe mediation, but before performing or not performing of the act by the bribee in the interests of the briber.

45

Article 1642• Corruptive act

(1) Corruptive act in the meaning of this Act is making of ungrounded or unlawful decisions or performance of ungrounded or unlawful activities or not making of grounded lawful decisions or nonperformance of grounded lawful activities by an official with the aim of receiving corruptive income or with any other selfish aim, using his or her official capacity.

(2) For a corruptive act - the punishment shall be a fine or deprivation of the right of working in a certain position or acting in a certain area of activity or arrest.

(3) For a corruptive act, if this causes material loss - the punishment shall be a fine with deprivation of the right of working in a certain position or acting in a certain area of activity or imprisonment for up to three years.

(4) For the same act: 1) repeatedly or 2) by a group of persons or 3) if this causes major loss or 4) by extortion

- the punishment shall be imprisonment for up to six years with deprivation of the right of working in a certain position or acting in a certain area of activity.

Article 1643• Not presenting of the declaration of economic interests subject to

public disclosure or presenting of false information therein

(1) For not presenting of the due declaration of economic interests subject to public disclosure by the due date or for presentation of incomplete or false information therein -

the punishment shall be a fine or arrest.

(2) For the same act, if this has caused material property loss or any other severe consequence to the statutory rights and interests of a person, state or local government -

the punishment shall be a fine or imprisonment for up to one year with deprivation of the right of working in the respective position or acting in a certain area of activity or being in public service.

Article 1644. Not presenting of the declaration of economic interests not subject to public disclosure or presentation of false information therein

For not presenting of a due declaration of economic interests not subject to public disclosure by the due date or for presentation of false information therein if

1) this has caused material property loss or any other severe consequence to the statutory rights and interests of a person, state or local government or if

2) the offender has been imposed an administrative punishment for a similar activity,

the punishment shall be a fine or imprisonment for up to one year with deprivation of the right of working in a certain position or acting in a certain area of activity or being in public service.

46

Article 1645• Presentation of false information to the person or agency or

committee controlling the declaration of economic interests

(1) For presentation of incomplete or false information or not presenting of information in time to the person or agency exercising statutory control over the declaration of economic interests or to a committee specified in the Anti-Corruption Act -

the punishment shall be arrest or imprisonment for up to six months.

(2) For the same activity if this has caused material property loss or any other severe consequence to the statutory rights or interests of a person, state or local government -

the punishment shall be imprisonment from six months up to two years with deprivation of the right of working in a certain position or acting in a certain area of activity.

Article 1646• Trading ofinfluence

For acceptance of payment by an official, promising to influence another official to make a favorable decision for the payer -

the punishment shall be imprisonment for up to two years.

Article 165. Bribing

(1) For bribing - the punishment shall be imprisonment for up to four years.

(2) For bribing: 1) repeatedly or 2) by a person who has been imposed a punishment for bribery

- the punishment shall be imprisonment for up to seven years.

(3) The briber shall be exempted from punishment if the bribe has been extorted from him or her or if he or she was the first to inform voluntarily thereof in writing after bribing, but before performing or not performing of the act by the bribee in his or her interests.

Article 1651• Bribing a foreign official

(1) For bribing an official of a foreign country or international organization - the punishment shall be imprisonment for up to four years.

(2) For the same act: 1) repeatedly or 2) by a person who has been imposed a punishment for bribery

- the punishment shall be imprisonment for up to seven years.

(3) The person who has committed the act specified in Clause 1 of this Article shall be exempted from punishment if the bribe has been extorted from him or her or if he or she was the first to inform voluntarily thereof in writing after bribing, but before performing or not performing of the act by the bribee in his or her interests.

47

Article 1663, Unlawful acceptance of payment by an official

For acceptance of a larger fee that the one fixed in law or other legislation by an official in rendering of services or making of decisions or for acceptance of a fee for free services if

1) this has caused material property loss or any other severe consequence to the statutory rights or interests of a person, state or local government or if

2) the offender has been imposed an administrative punishment for a similar activity, -. the punishment shall be imprisonment for up to two years with deprivation of the right

of working in a certain position or acting in a certain area of activity.

48

\) Annex 4

Statistics on offences in office in year 1999 and in half-year 2000

Half-year 2000

CC Art 161 - the prosecution of 2 accused: one person was convicted (punished by fine) and another was acquitted.

Art 161 1 - the prosecution of 3 accused: all were convicted,

1 was punished by imprisonment 6 years, 2 were punished conditionally.

Art 162 - the prosecution of 4 accused: 2 acquitted and 2 convicted 2 were punished by fine

, .) Art 164 para 1 - the prosecution of 6 accused: 1 acquitted and 5 convicted

. )

4 persons were punished conditionally 1 person was punished by imprisonment 1 year;

Art 164 para 2 - the prosecution of 11 accused: 1 acquitted and 10 convicted-1 was punished by imprisonment 1 year, 9 were punished conditionally.

Art 165 para 1 - the prosecution of 5 accused: 1 acquitted and 4 convicted-1 was punished by fine; 2 were punished conditionally and 1 person was punished by imprisonment 2 years;

Art 165 para 2 - the prosecution of 1 accused who was convicted and punished conditionally

Art 166 para 1 - the prosecution of 7 accused: all were convicted-6 persons were punished by fine, 1 person was punished conditionally

Art 166 para 2 - the prosecution of 3 accused: all were convicted 2 persons were punished by fine 1 person was punished conditionally

Year 1999

CC Art 161 - the prosecution of 12 accused: 8 convicted offenders 5 persons were punished by fine, 3 persons were punished conditionally 3 acquitted and 1 termination of criminal proceedings

49

NATIONAL REPORT FOR

IRELAND

By Lucinda MAC MAHON, Criminal Law Reform Division, Department of Justice, Equality and Law Reform

1. The organisation of the fight against corruption on the national level

a. General policy

a.1. What general policy does your country have towards corruption (specific criminal provisions, attention for prevention ... )?

1. In Ireland, specific criminal legislation against corruption is contained in the Prevention of Corruption Acts, 1889 to 1995. These cover a wide range of office holders and employees and relate to various activities. The legislation is currently being updated. [Further details are set out under paragraph b) below.]

2. On a broader front, the Government is bringing forward a range of measures to make more rigorous the legal requirements and sanctions governing the conduct of public business. A Local Government Bill has recently been published which includes a comprehensive ethics framework for local authorities. This will apply to elected members and employees alike. Legislation is being prepared to deal with standards in public office, and will include a Public Offices Commission with the remit to investigate complaints against office holders and members of the Oireachtas (Parliament) as well as procedures for dealing with breaches of this legislation. The Government is also committed to examining the need for the regulation of lobbyists.

3. A draft Code of Standards and Behaviour for the Irish Civil Service is being prepared at present by the Department of Finance, which will set out a clear framework within which civil servants must work and the values which will continue to be upheld. A guide for the wider public service, entitled "The Ombudsman's Guide to Standards of Best Practice for Public Servants", has already been issued by the Office of the Ombudsman.

4. Ireland fully supports the recent developments within the European Union, the OECD and the Council of Europe towards the prevention of corruption. Ireland is also a member of the Group of States against Corruption (GRECO) which was established in 1999 under the auspices of the Council of Europe.

a.2. Do you consider this policy satisfactory or not? If not, what are the main deficiencies?

1. The overall policy on corruption is considered satisfactory. A high level of priority is given to combating corruption in its various guises. As indicated

above, Ireland supports recent developments in various international fora against corruption. Consequently, the Prevention of Corruption (Amendment) Bill, 2000 will allow Ireland to ratify the following Conventions:

EU Convention on the Fight against Corruption involving Officials of the European Communities or Officials of Member States of the European Union Convention on Bribery of Foreign Public Officials in International Business Transactions, drawn up under the auspices of the Organisation for Economic Co-operation and Development, and the Criminal Law Convention on Corruption, drawn up under the auspices of the Council of Europe.

The Bill will thereby render corruption by certain foreign officials and office holders, as well as corruption by Irish office holders abroad, offences under Irish law.

c. Repressive legislation

c.l. Which types of behaviour can be sanctioned as forms of corruption (bribery, trading in influence ... )? Active and/or passive corruption? In the public and/or the private sector? c.2. Are those legal provisions only applicable if nationals are corrupted or is their scope of application more extensive (foreigners, members of international organisatIons ... )? c.3. Which sanctions can be imposed (imprisonment, fine, confiscation measures, deprivation of rights, administrative sanctions ... )? c.4. To whom are these legal provisions applicable (physical persons and/or legal persons)?

1. Under the Prevention of Corruption Acts 1889 to 1995 the following types of activity are covered:

'direct corruption', i.e. corruption of or by an individual employee (both public and private sector) or a public official corruption in the award of public contracts

Under the Prevention of Corruption (Amendment) Bill, 2000 the following activities will also be covered:

'indirect corruption', i.e. corruption of a third party, with a view to influencing the conduct of an official, employee etc. 'corruption in office', where an individual acts/omits to act to benefit himself/herself or a family member etc.

2. Persons who are subject to the provisions of the Prevention of Corruption Acts, 1889 to 1995 include:

any person employed by or acting for another a director or member of a public body

2

a special adviser to an office holder any public official a Minister or Minister of State of the Government the Attorney General, Chainnan or Deputy Chainnan ofD<iil Eireann (Lower House of Parliament) or Seanad Eireann (Upper House of Parliament), Chainnan of a Committee of either House or of a Joint Committee of both Houses

Following enactment of the Prevention of Corruption (Amendment) Act, 2000 the following persons will also come within the scope of the legislation:

a member ofD<iil Eireann (Lower House of Parliament) or Seanad Eireann (Upper House of Parliament) the Comptroller and Auditor General, Director of Public Prosecutions, or a judge, a member of a foreign parliament, foreign office holder, member or official of an EU institution, a third party, e.g. the spouse of an official, employee etc. and where appropriate, responsibility for an offence of corruption by a body corporate can be attributed to certain of its officers or members.

3. The penalties which can be imposed upon conviction on indictment for an offence under the Prevention of Corruption Acts, 1889 to 1995 are a fine not exceeding IR£50,000 or imprisonment for a tenn not exceeding 7 years or both. Under the Prevention of Corruption (Amendment) Bill, 2000 these will be increased to an unlimited fine or 10 years imprisonment or both.

4. By means of this legislation, both existing and proposed, Ireland will be able to meet a range of obligations arising from International agreements. These are:

EU Convention on the Fight against Corruption involving Officials of the European Communities or Officials of Member States of the European Union, done at Brussels on 26th May, 1997 Convention on Bribery of Foreign Public Officials in International Business Transactions, drawn up under the auspices of the Organisation for Economic Co-operation and Development and adopted at Paris on 21st November, 1997, and Criminal Law Convention on Corruption, drawn up under the auspices of the Council of Europe, done at Strasbourg on 27th January, 1999.

5.1. Provisions in relation to Civil Law on Corruption find expression either in Statute Law or Common Law. Remedies against acts of corruption are to be found in Common Law. The body oflaw in this area is an evolving one. There are established torts in the area of business relations of inducing a breach of contract, and wrongful procurement, and the tort of intentional interference with economic interests has become recognised. The Companies Acts require that audited accounts are kept to a particular standard and fonn. In addition, the Whistleblower's Protection Bill, 2000 is being debated in Parliament. It protects individuals who provide infonnation on wrongdoing.

5.2. Ireland has signed the Council of Europe Civil Law Convention (November

3

1999) and is now examining the Convention with a view to ratification. Some legislation may, on further consideration, be necessary to give statutory expression to aspects of the Convention. Any necessary proposals for legislation will fall to be dealt with in due course prior to ratification of the Convention.

c.S. What is the territorial scope of application of the provisions?

1. While, in general, Irish criminal law is territorial in scope, that is to say that it applies only to acts done in Ireland, the Prevention of Corruption (Amendment) Bill, 2000 provides for the extension of Irish jurisdiction extra-territorially to corruption abroad involving Irish office holders or officials. The Bill will also make it an offence under Irish law where any element of the corrupt act takes piace in this jurisdiction or where the alleged offender is to be found here.

c.7. Do you consider this legislative framework satisfactory? If not, what are the main problems?

1. Taken together, the existing legislation and the Prevention of Corruption (Amendment) Bill, 2000 will ensure that Ireland has a comprehensive legislative response to corruption in place.

e. Structures

e.l. Has your country established specialised services, specifically assigned with the combat against corruption? If so, what is the institutional context (e.g. established within the police), the composition, functions and the powers of these services?

1. As 'An Garda Siochana' is the national police force, the investigation of incidents of corruption is the responsibility of the Force generally. The management of the force is the responsibility of the Commissioner of An Garda Siochana. The National Bureau of Criminal Investigation specialises in the investigation of serious crime and has on a number of occasions investigated incidents of corruption.

e.2. Do you consider this structural framework satisfactory? If not, what are the main problems?

1. Yes.

4

2. International co-operation regarding corruption

a. Supply

a.1. To what extent can your country offer international co.-operation in corruption cases (exchange of police information, mutual assistance in criminal matters, extradition ... )?

1. Full details on the procedures for international co-operation in criminal (including corruption) cases are supplied in the handbook "Mutual Assistance in Criminal Matters - A Guide to Irish Law and Procedures", a copy of which is supplied. Full details of the International Conventions to which Ireland is a party, and also to the scope ofIrish law on Mutual Legal Assistance are provided in the handbook, as are details of contact procedures and the information required from a requesting authority.

2. At present, extradition is granted where the offence is punishable under the laws of the requesting country and of the State by imprisonment for at least 12 months or by a more severe penalty (Extraditio~ Act, 1965 refers). While there are:

(i) certain exceptions to this, such as political offences, offences in connection with taxes, duties customs or exchange controls, and

(ii) certain conditions attach, for example the speciality rule which effectively means that a person who has been extradited for one offence cannot except in certain circumstances be tried in the requesting country for any other offence committed prior to the date of extradition,

in general it is open to a requesting country to make a request in respect of a corruption offence.

3. Legislation is currently being prepared which will enable Ireland to ratify the EU Convention on simplified extradition procedures between the Member States of the European Union and the 1996 Convention relating to extradition between Member States of the European Union.

4. Ireland has signed a range of bilateral agreements in recent years. These, however, do not explicitly focus on corruption but the general arrangements in place for mutual assistance would, as mentioned above, be available for use in corruption cases.

a.2. Who should the applicant apply to? On which conditions and in which form? a.3. Which particularities should the applicant be aware of when requesting co-operation in a corruption case?

1. Regarding mutual assistance, please refer to the accompanying handbook, and regarding extradition, please refer to the reply at 2.a.1 above.

5

a.4. Which (legal and factual) obstacles do, in your opinion, hamper an efficient co-operation in practice?

1. As regards obstacles to the mutual assistance process, we are not in a position to give an assessment of these issues because of lack of practical experience of corruption cases.

b. Demand

b.l. What are your expectations when you request co-operation from another country in a corruption case? b.2. To what extent are these expectations met? b.3. Which are the main problems and how can these be solved?

1. According to An Garda Siochana, where it requests co-operation from another country in the investigation of a corruption case, it is expected that the request will be dealt with efficiently and expeditiously. It is not possible to generalise on the extent to which these expectations are met by various requested countries.

6

Paragraph

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

Index

I ntrod uction

Central Authority for Mutual Assistance in Criminal Matters

Requests under International Conventions

Authorities from which requests may be received

Form of requests

Scope of Irish law on Mutual Legal Assistance

External confiscation and forfeiture orders

Service of process

Obtaining evidence in Ireland for use outside Ireland

Transfer of prisoner in Ireland to give evidence or assist in an investigation outside Ireland

Search and Seizure (Search Warrants and Production Orders)

Police to police enquiries

Grounds for refusal of assistance

Confidentiality of requests

Irish authorities empowered to make requests

Page

3

4

6

7

8

11

13

15

17

19

21

24

25

26

27

Appendices No. Page

European Convention on Mutual Assistance in Criminal Matters and 28 Additional Protocol - reservations and declarations by Ireland.

II Council of Europe Convention on Laundering, Search, Seizure and 32 Confiscation of the Proceeds from Crime - reservations and declaration by Ireland

III United Nations Convention against Illicit Traffic in Narcotic Drugs and 33 Psychotropic Substances - notifications by Ireland under Articles 7 and 17.

2

1. INTRODUCTION

This guide is issued by the Department of Justice, Equality and Law Reform in

its role as Ireland's Central Authority for Mutual Assistance in Criminal

Matters. It constitutes a general outline of Irish law in relation to international

judicial cooperation in criminal matters; it does not purport to be an .

interpretation of that law.

The primary purpose of the guide is to assist authorities abroad (such as

judicial authorities, prosecuting authorities and central authorities) in making

requests to Ireland for legal assistance for the purposes of criminal

investigations or criminal proceedings.

Copies of the guide in French, German, Italian and Spanish are available from

the Central Authority. The guide is also available on the Department's internet

site: http:www.irlgov.ie/justice.

Separate guidance is available from the Department in relation to extradition

requests.

3

2. CENTRAL AUTHORITY FOR MUTUAL ASSISTANCE IN CRIMINAL

MATTERS

All requests for mutual assistance to Ireland, unless they are appropriate to

police or customs channels, should be sent to:

The Central Authority for Mutual Assistance

Department of Justice, Equality and Law Reform

72-76 St Stephen's Green

Dublin 2 .

Telephone Numbers: 00353 - 1 - 602 8548

00353 - 1 - 602 8605

Fax Number: 00353 - 1 - 602 8606

E-Mail Number:mutual@justice.ie

Messages, queries etc. relayed by fax after normal office hours to the Central

Authority will be responded to on the following working day. In cases of

exceptional urgency outside office hours, contact may be made through

Mobile Phone Number: 00353 87545235.

Diplomatic channels: As stated above, the recommended procedure for the

making of a request is by way of direct application to the Central Authority.

However, it is open to a requesting authority alternatively to send the request

through diplomatic channels to the Central authority, if it so wishes, in a case

where the request is being made pursuant to an international convention.

Where a request is being made independently of an international

convention, it should be sent by the requesting authority through

diplomatic channels unless there is specific agreement between the country of

the requesting authority and Ireland for direct transmission of each other's

requests.

Police to p-olice requests: Where requests for assistance in investigations

are exclusively of a police to police nature they should be addressed either

4

through Interpol channels to Interpol, Dublin ( police services will be aware of

the contact details) or directly to the Garda Siochana as follows: Assistant

Commissioner, Crime Branch ( Mutual Assistance Section), Garda

Headquarters, Phoenix Park, Dublin 8.

Where requests cover both legal assistance and co-operation of a police to

police nature, they should be sent to the Central Authority, which will

co-ordinate the execution of the requests. Matters which are appropriate to

police channels are set out in paragraph 12.

Other agencies: The Central Authority operates in close association with

other agencies with functions in relation to requests for mutual assistance,

namely, the Office of the Attorney General, the Office of the Director of Public

Prosecutions, the Office of the Chief State Solicitor, the Garda Siochana, the

Department of Foreign Affairs and the Courts.

Requesting authorities should note that neither the Courts nor the Director of

Public Prosecutions -

(i) have any investigative functions or

(ii) directly execute requests.

Requests should, therefore, always be sent to the Central Authority (or

through police channels) as indicated above.

5

3. REQUESTS UNDER INTERNATIONAL CONVENTIONS

Ireland is a party to the following Conventions:

(i) The Council of Europe Convention on Mutual Assistance in Criminal

Matters (1959) and its Additional Protocol (1978).

(ii) The United Nations Convention Against Illicit Traffic in Narcotic Drugs

and Psychotropic Substances (1988).

(iii) The Council of Europe Convention on Laundering, Search, Seizure

and Confiscation of the Proceeds from Crime (1990).

Ireland's declarations, reservations and notifications relating to these

Conventions are set out in the Appendices I, II and III to this guide.

Ireland's capacity to give mutual assistance is not necessarily limited to

countries which are parties to these Conventions. Any requests falling outside

these Conventions will be considered on an individual basis.

6

4. AUTHORITIES FROM WHICH REQUESTS MAY BE RECEIVED

Requests should be made by a court, tribunal or any other authority abroad

which has the function of making mutual assistance requests, such as

Ministries or Departments of Justice, Attorneys General and Public

Prosecutors. The requesting authority should ensure that it has authority

Linder the law of its own country or by arrangement to make requests to this

jurisdiction.

7

5. FORM OF REQUESTS

(1) Requests to be made in writing: Requests to the Central Authority for

mutual legal assistance should be in writing and by way of original

documents. In cases of urgency, advance faxed copies of requests may be

accepted with an undertaking that the original request will be forwa-rded

without delay.

(2) Language of requests: All requests should be in either Irish or English. In

cases where requests are translated to Irish or English from the language of

the requesting authority, a certificate to the effect that the request furnished in

the Irish/English language is a complete and accurate translation of the

request should be furnished. Failure to do so may result in delay or in the

request not being executed.

(3) Requests to include the fullest information: In general, and subject to the

requirements of Irish law set out in this guide and any requirements of the

relevant Convention, requests should contain the fullest information, in

particular:

(a) details of the authority making the request, including the name and

telephone number of a contact person

(b) details of the purpose of the request

( c) details of the person or persons named in the request including, where

available, address, date of birth and nationality

(d) a description of the offences charged or under investigation

(e) a summary of the facts giving rise to the request

(f) relevant dates e.g. date of court hearing ( reason for special urgency

or attention should be included in the covering letter of request)

8

(g) a description of evidence sought, including, in the case of bank

accounts, details of the relevant institution, account numbers and

account names

(h) specific information on any property to be searched and/or seized and

sufficient information to satisfy the requirements outlined in paragraph

11

(i) details and supporting documents in relation to the freezing,

confiscation or forfeiture of criminal assets

0) in the case of service of a summons (or judgement) whether the

document is to be served by post or personally; a contact point so that

enquiries can be made regarding allowances and expenses by the

person who has been asked to appear

(k) where evidence is to be taken from witnesses or suspects, whether it

should be evidence on oath taken before a judge (see paragraph 12

regarding unsworn statements)

(I) a iist of any specific questions to be put to a witness, if feasible

(m) where the evidence is to be taken before a court, a certificate that an

offence under the law of the requesting country in question has been

committed or that there are reasonable grounds for suspecting that

such an offence has been committed, and either that proceedings in

respect of the offence have been instituted or that an investigation is

being carried out (see also paragraph 9)

(n) whether the requesting country wishes to have persons present during

the taking of evidence in the proceedings (see also paragraph 9)

9

(0) in the case of a prisoner required abroad to give evidence or assist in

an investigation, information to enable the prisoner's informed consent

to be sought and to satisfy the Irish prison authorities that

arrangements will be made to ensure his or her secure custody. This

information will need to include details of proposed arrangements for

collecting the prisoner from Ireland; details of the type of secure

accommodation in which he or she will be held in the requesting state;

the type of escort available to and from his/her accommodation; the

period during which attendance in the requesting state is required; the

date on which the court or other proceedings for which the prisoner is

required will commence, and are likely to be concluded and whether he

or she will be accorded immunity in respect of previous offences.

Further information regarding the requirements for transfer of particular

prisoners may be sought by the Irish Central Authority.

Failure to provide the fullest information possible may result in delays or in a

request not being executed in whole or in part.

(4) Notification where assistance is no longer required: Should the requested

assistance no longer be required, the Central Authority should be informed

immediately.

10

6. SCOPE OF IRISH LAW ON MUTUAL LEGAL ASSISTANCE

The law enabling Ireland to provide mutual legal assistance to, and to seek

mutual assistance from, other countries is contained in Part VII of the Criminal

Justice Act 1994. In brief, the law includes provisions -

(i) enabling the enforcement in Ireland of confiscation and forfeiture

orders made in another jurisdiction (Sections 46, 47 and 48 of the

1994 Act)

(ii) (a) empowering the Minister for Justice, Equality and Law Reform

to cause any summons or other process issued by a court in

another jurisdiction to be served on a person in Ireland to

appear as a defendant or attend as a witness in that jurisdiction

or to cause any documents recording a decision of a court made

in the exercise of that jurisdiction to be served on a person in

Ireland (Section 49).

(b) empowering the Minister for Foreign Affairs to make

arrangements to cause any process issued in Ireland to be

served outside Ireland (Section 50); the arrangements which

have been made provide that, where possible, a process should

be transmitted directly between the Irish Central Authority and

the Central Authority in the other jurisdiction.

(iii) permitting the Minister for Justice, Equality and Law Reform to

authorise an Irish court to take evidence in connection with criminal

investigations or proceedings in another jurisdiction (Section 51)

(iv) permitting the issuing of letters of request for the taking of evidence

outside the State for use in Ireland (Section 52).

(v) enabling the Minister for Justice, Equality and Law Reform to permit

the transfer to another jurisdiction of a person in detention in Ireland in

order to give evidence in criminal proceedings there or to be identified

11

in or otherwise by his/her presence to assist such proceedings or the

investigation of an offence outside Ireland (Section 53)

(vi) enabling the Minister for Justice, Equality and Law Reform to make

arrangements for the transfer from another jurisdiction of a person in

detention outside the State in order to give evidence in criminal

proceedings in this State or to be identified in or otherwise by his/her

presence"to assist such proceedings or the investigation of an offence

in Ireland (Section 54)

(vii) permitting search and seizure of material in the State on behalf of

another jurisdiction by way of search warrants and production orders

(Sections 55 and 63)

(viii) providing for mutual assistance in relation to revenue offences

(Section 56A)

(ix) providing for the certification of evidence where necessary.

Specific provisions of Part VII of the Criminal Justice Act, 1994 for incoming

requests for mutual assistance will be applied as set out in paragraph 7 to 11

following.

12

7. EXTERNAL CONFISCATION AND FORFEITURE ORDERS

Irish law provides that an application may, with the consent of the Minister for

Justice, Equality and Law Reform, be made to the High Court by or on behalf

of the Government of a designated country for the enforcement of a

confiscation or a forfeiture order made in that country. The order made

abroad can be made enforceable in Ireland by way of a corresponding Irish

court order (a confiscation co-operation order or a forfeiture co-operation

order) (Sections 46(1), (2) ; 47 (i), (2)).

The High Court, before making a confiscation co-operation order or a

forfeiture co-operation order, must

(a) be satisfied that the order made in the relevant country is in force and

not subject to appeal,

(b) be satisfied that the person against whom the order was made, if

he/she did not appear in the proceedings, received notice of the

proceedings in sufficient time to enable him/her to defend them,

and

(c) be of the opinion that the making of a confiscation or forfeiture

co-operation order would not be contrary to the interests of justice.

(Sections 46(3), 47 (2)).

Provision is made for the admissibility in evidence of a certificate signed by or

with the authority of the judge of the court which made the original order (and

of a certified translation) recording the making of the order and the giving of

any evidence or information in the proceedings leading to the making of the

order. (Section 48).

When a court in Ireland makes a confiscation co-operation order, the order

may be enforced by the Director of Public Prosecutions as if it were a

judgement of the High Court for the payment to the State of the sum specified

in the order (Section 19 as modified by 1996 Regulations).

13

Provision is also made for the making by the court of a restraint (freezing)

order, on an application by or on behalf of the Government of a designated

country, with the consent of the Minister for Justice, Equality and Law Reform

in anticipation of the making of a confiscation co-operation order. Tre effect

of a restraint order is to prohibit any person from dealing with any realisable

property, subject to such conditions and exceptions as may be specified in the

order. The court must be satisfied that proceedings either have been or will

be instituted against a person in the designated country and that a

confiscation co-operation order either has been or is likely to be made.

(Section 23 as modified by 1996 Regulations).

For the purpose of enforcement of a restraint order, provision is made for the

appointment by the High Court of a receiver to take possession of and

manage the property concerned. The Act also empowers a member of the

Garda Siochana to seize any realisable property, which is subject of a

restraint order, to prevent its removal from the State (Section 24 as modified

by 1996 Regulations).

Note

Those countries which are party to the UN Convention against Illicit Traffic in

Narcotic Drugs and Psychotropic Substances and the Council of Europe

Convention on Laundering, Search, Seizure and Confiscation of the Proceeds -

from Crime are designated as countries in whose case orders as above may

be made.

14

8. SERVICE OF PROCESS

A summons or other process or document issued by a Court exercising

criminal jurisdiction received by the Department of Justice, Equality and Law

Reform will be served by registered post on the person to whom it is

addressed, except in cases where personal service is requested, in-which

case service will be carried out by the Garda Sfochana (police).

Requesting countries are advised that:

(i) A summons or other process requiring a person to attend as a

defendant in criminal proceedings in another country will not be served

unless provision is made by the law of that country or by arrangement

with the appropriate authority thereof that, if the person concerned

appears as a defendant in compliance with the summons or process,

he/she will not be proceeded against, detained or otherwise restricted

in his/her personal freedom in that country in respect of any offences

committed before his/her departure from the State other than the

offences specified in the summons or process unless that person -

(a) having had for a period of 15 consecutive days from the date of

his/her final discharge in respect of the specified offences an

opportunity to leave the country concerned, has not done so, or

(b) having left that country, has returned to it (Section 49(4)).

(ii) A summons or other process requiring a person to attend as a witness

in criminal proceedings in another country will not be served unless

provision is made by the law of that country or by arrangement with the

appropriate authority thereof that, if the person concerned attends as a

witness in compliance with the summons or process, he/she will not be

proceeded against, sentenced, detained or otherwise restricted in

his/her personal freedom in that country in respect of any offences

committed before his/her departure from the State unless that person-

(a) having had for a period of 15 consecutive days from the date

when his/her presence is no longer required as a witness in the

15

proceedings concerned an opportunity to leave the country

concerned, has not done so, or

(b) having left that country, has returned to it (Section 49(5)).

(iii) Accordingly, a request should indicate whether provision as at (i) or (ii)

above is made by the law of the country concerned; alternatively a

request should be accompanied by an undertaking to the same effect

by the appropriate authority of that country.

(iv) The summons or other process requiring a person to attend as a

witness or defendant in criminal proceedings in another country when

being served on the person will be accompanied by a notice in writing

(prepared by the Irish Central Authority) stating that

(a) there is no obligation under Irish law on the person on whom it

is served to comply with it

(b) under the law of the requesting country or by arrangement with

the appropriate authority thereof, the person summoned is

immune from prosecution for offences committed before his or

her departure from the State subject to the exceptions outlined

above

(c) the person on whom it is served may wish to seek advice as to

the consequences of his or her failing to comply with the

process under the law of the requesting country, and

(d) under the law of the requesting country he or she may not, as a

witness, be accorded the same rights and privileges as would

be accorded to him or her in criminal proceedings in Ireland.

]6

9. OBTAINING EVIDENCE IN IRELAND FOR USE OUTSIDE IRELAND

Irish law provides for the taking of evidence (which term includes documents

and other articles) by a District Court in Ireland for use in criminal

investigations or proceedings abroad.

Before assistance can be provided in this regard, the Minister for Justice,

Equality and Law Reform must be satisfied that -

(i) the requesting authority is a court exercising criminal jurisdiction or a

prosecutor or another authority with the function of making requests for

mutual assistance (Section 51 (1))

(ii) an offence under the law of the requesting State has been committed,

or that there are reasonable grounds for suspecting that such an

offence has been committed, and

(iii) proceedings in respect of that offence have been instituted in the

requesting country or that an investigation is being carried on there

(Section 51 (2)).

A certificate should be provided by the court or other authority forwarding the

request to enable the Minister to be satisfied as to the requirements at (ii) and

(iii) (Section 51 (3)).

It is also necessary for the request to include written confirmation that

provision is made by the law of that country that any evidence that may be

furnished in response to the request will not, without the consent of the

Minister, be used for any purpose other than that specified in the request. If

there is no such provision in law, it is sufficient that the appropriate authority

of the country gives a commitment that no such other use will be made of the

evidence furnished (Section 51 (4)).

17

In taking evidence, the Irish law on privilege will apply. In addition, if a person

from whom evidence is being taken claims privilege under the law applicable

in the requesting country, the evidence will not be taken if that authority

concedes the claim. If the claim is not so conceded, the evidence may be

taken but will not be transmitted if a court in the requesting State, on the

matter being referred to it, upholds the claim (Second Schedule to the

Criminal Justice Act, 1994). ..

Attendance at proceedings: Judges, magistrates, public prosecutors, police

officers and other interested parties of the requesting State will normally be

permitted to be present when the evidence is being taken. Such persons are

not permitted to question a witness but may suggest to the Minister's legal

representative at the hearing questions (additional to those set out in the

request) which they wish to have put to a witness. Should such persons wish

to be present, they should be named in the request for assistance to the

Central Authority. The attendance of police officers of the requesting State

will be subject to the approval of the Commissioner, Garda Siochana.

If a requesting authority requires the evidence to be accompanied by a

certificate, affidavit or other verifying document this should be stated in the

request (Second Schedule to the Criminal Justice Act, 1994).

18

10. TRANSFER OF A PRISONER IN IRELAND TO GIVE EVIDENCE OR

ASSIST IN AN INVESTIGATION OUTSIDE IRELAND

The Minister for Justice, Equality and Law Reform may issue a warrant

authorising the transfer to another jurisdiction of a prisoner in Ireland for the

purpose of-

(a) giving evidence in criminal proceedings, or

(b) being identified in or otherwise by his or her presence assisting such

proceedings or the investigation of an offence (Section 53(1)) .

Prisoners must give their consent to the transfer. The Central Authority will

make enquiries as to whether the prisoner is willing to attend but no

compulsion can be applied.

The effect of the warrant is to authorise -

(a) the taking of the prisoner to a place of departure in Ireland and his/her

delivery into the custody of a person representing the appropriate

authority of the country to which the prisoner is to be transferred, and

(b) the bringing of the prisoner back to Ireland and his/her transfer in

custody to the place where he/she is liable to be detained under the

sentence to which he/she is subject (Section 53(3)).

The requesting authority will need to provide the Central Authority with details

in advance of the arrangements for the return of the prisoner to safe custody

in Ireland.

Irish law requires that provision must be made by the law of the requesting

country, or by arrangement with the appropriate authority, that a prisoner will

not be proceeded agai,nst, sentenced, detained or subjected to any other

restrictions on his/her personal freedom in respect of any offence under the

law of the requesting country or territory committed before his/her departure

19

from Ireland (Section 53(4». A requesting authority, therefore, when making

the request should indicate whether such provision is made in its law or

alternatively furnish an undertaking in this regard from the appropriate

authority.

20

11. SEARCH AND SEIZURE (Search Warrants and Production Orders).

Search warrants: Irish law provides for the issue by an Irish court of a search

warrant (authorising entry, search and seizure) to obtain evidence for use in

criminal investigations abroad. Application for such a warrant is made in

pursuance of a direction given by the Minister for Justice, Equality and Law

Reform in response to a request received from the Government of a

designated country or a person acting on the authority of such Government

and made-

(a) on behalf of a court exercising criminal jurisdiction in the requesting

country or a prosecuting authority in that country, or

(b) on behalf of any other authority in that country which appears to the

Minister to be an appropriate authority for the purpose of making

requests for mutual assistance (Section 55(4)).

Essentially, the same powers are available to an Irish court in such cases as

are available in purely domestic cases.

The court must be satisfied that:-

(i) there are reasonable grounds for believing that an offence under the

law of the requesting country has been committed, and

(ii) the conduct constituting that offence WOUld, if it occurred in Ireland,

constitute an offence under Irish law in respect of which the court could

issue a search warrant in relation to any place. (Section 55(3)).

It is important, therefore, that the requesting country gives sufficient

information about the offence under investigation to enable an Irish court to

be satisfied that these criteria are met.

If the requesting country requires the evidence seized or obtained to be

accompanied by any certificate, affidavit or other verifying document this

should be stated in the request (Section 55(5)).

21

It is also necessary for a requesting State to confirm that provision is made in

its law that any evidence provided will not, without the consent of the Minister

for Justice, Equality and Law Reform be used for any other purpose than that

specified in the request. If there is no such provision in law, it is sufficient that

the requesting State gives a commitment that no such other use will be made

of the evidence furnished in response to a request (Section 55(10».

The requesting country must also undertake to return the evidence to the

Minister for Justice, Equality and Law Reform when it is no longer required for

the requested purpose (unless the Minister indicates that the evidence need

not be returned). The request should specify the authority to which the

evidence should be transmitted (Section 55(10)).

Production Orders: Irish law also provides that a member of the Garda

Siochana, pursuant to a direction given by the Minister for Justice, Equality

and Law Reform, may apply on behalf of a requesting authority (as

mentioned above) for an order for the production of any relevant material

(e.g. documentary evidence) or access to it. The application must be for the

purpose of an investigation into drug trafficking or money laundering or an

investigation into whether a person has benefited from drug trafficking or

some other serious offence (Sections 55(2) and 63).

The documents must be likely to be of substantial value to the investigation,

they must not be subject to legal privilege and it must be'in the public interest

that they be produced, having regard to the likely benefit to the investigation

and the circumstances under which the person in possession of the

documents holds them (Sections 55(2) and 63(4».

The requirements mentioned above in relation to the use of and return of the

evidence obtained by way of search warrant also apply in relation to evidence

obtained by way of production order (Sections 55(2) and 55(10».

22

Note

Those countries which are party to the Council of Europe Convention on

Mutual Assistance in Criminal Matters, the UN Convention against Illicit Traffic

in Narcotic Drugs and Psychotropic Substances, and the Council of Europe

Convention on Laundering, Search, Seizure and Confiscation of the Proceeds

from Crime, have been designated for the purpose of making requests for the

search and seizure of evidence.

23

12. POLICE TO POLICE ENQUIRIES

Some requests for assistance in investigations can be executed exclusively

on the basis of police to police co-operation. The forms of co-operation which

can be obtained through police channels include -

interviewing witnesses or suspects in criminal investigations where the

person to be interviewed is willing to co-operate and provide an

unsworn statement,

sharing information concerning investigations into offences which have

been committed in Ireland, where circumstances permit,

providing details of previous convictions,

providing details of motor vehicles registered in Ireland,

providing details of driving licences issued in Ireland and

obtaining medical or dental statements or records where the patient

has given written consent.

24

13. GROUNDS FOR REFUSAL OF ASSISTANCE

The Central Authority provides a" possible assistance to a requesting party so

that effect may be given to a request. Cases of refusal are expected to be

rare but could arise in circumstances as follows. Refusal may be made on

political, security or national interest grounds, but may also be unavoidable in

certain other cases. For example, in some instances evidence may not be

taken or passed on where a witness has made a substantiated claim to

privilege, or a request for search and seizure of evidence may be refused if

the circumstances of the case do not satisfy the requirements for the exercise

of the power contained in Irish law. In addition it may not be possible to

provide assistance in relation to overseas proceedings where those

proceedings may result in double jeopardy for the accused (e.g. retrial for an

offence for which he or she has already been tried in Ireland or elsewhere).

In the case of requests for the transfer of prisoners, assistance may be

refused or delayed if the prisoner is unwilling to co-operate or is very near the

date of his/her release in Ireland or is required for proceedings in Ireland.

More generally, the rule is that assistance cannot be granted where execution

of the request would be contrary to the Irish Constitution, other Irish law or

established practice.

In appropriate cases, requesting authorities wi" be invited to modify the

request so that assistance may be provided.

25

14. CONFIDENTIALITY OF REQUESTS

The contents of a letter of request or the fact that it has been made will not

normally be disclosed outside Government Departments, the Garda

Siochana, the Courts or other official bodies in Ireland concerned with the

execution of the request. Wider disclosure may be necessary, however, when

evidence is being obtained or used in proceedings.

If confidentiality requirements make it difficult or impossible to execute a

request, the requesting authority will be consulted by the Central Authority.

26

15. IRISH AUTHORITIES EMPOWERED TO MAKE REQUESTS

(i) Designated Authorities

The following courts and authorities have been designated as competent to

make mutual assistance requests: the District Court, the Circuit Court, the

High Court, a Special Criminal Court, the Court of Criminal Appeal, the

Supreme Court, the Attorney General of Ireland, the Director of Public

Prosecutions and the Chief State Solicitor.

(ii) Onward Transmission of Requests

Requests from these courts and authorities will in the normal course be

passed to the Central Authority for onward transmission to courts and

authorities abroad, or where a State is unwilling to accept requests directly

from the Central Authority, for transmission through diplomatic channels.

(iii) Urgent Irish Requests Addressed to Courts or Tribunals

Section 52 of the Criminal Justice Act, 1994 authorises the courts and

authorities listed above to make requests for the obtaining of evidence

directly to a court or tribunal abroad in cases of urgency.

(iv) Limitation regarding the use of Evidence bv the Irish Authorities

Section 52 of the Criminal Justice Act, 1994 provides that any evidence

obtained by virtue of a letter of request, may not, without the consent of the

requested authority, be used for any purpose other than that specified in the

request.

27

Appendix 1

European Convention on Mutual Assistance in Criminal Matters

Reservations

Article 2

The Government of Ireland reserves the right to refuse assistance if criminal

proceedings have been instituted or concluded in Ireland or in a third State

against a person who is the subject of the request for assistance in respect of

the same conduct as that giving rise to proceedings in the requesting State in

respect of that person.

The Government of Ireland reserves the right to make the supply of any

material or evidence, in response to a request for assistance, subject to the

condition that such material or evidence shall not, without its consent, be

used for a purpose that was not specified in the request.

Article 3

The Government of Ireland reserves the right not to take the evidence of

witnesses or require the production of records or documents where its law

recognises in relation thereto privilege, non-compellability or other exemption

from giving evidence.

Article 11 (2)

The Government of Ireland is unable to grant requests made under Article 11,

paragraph 2 for a person in custody to transit through its territory.

Article 21

The Government of Ireland reserves the right not to apply Article 21.

28

Article 22

The Government of Ireland will not notify criminal convictions or subsequent

measures under Article 22 except insofar as the organisation of its judicial

records allows of so doing.

Declarations

Article 5(1)

The Government of Ireland reserves the right to make the execution of letters

rogatory for search and seizure of property dependent on the following

conditions:

(a) that the offence motivating the letters rogatory is punishable under both

the law of the requesting Party and Irish law; and

(b) that execution of the letters rogatory is consistent with Irish law.

Article 15(1)

In respect of the Government of Ireland, references to the "Ministry of Justice"

for the purposes of Article 11, paragraph 2, Article 15, paragraphs 1,3 and 6,

Article 21, paragraph 1 and Article 22 are to the Department of Justice,

Equality and Law Reform.

Article 15(6)

In accordance with Article 15, paragraph 6, the Government of Ireland gives

notice that requests for assistance under the Convention should be sent to

the Department of Justice, Equality and Law Reform.

Article 16(2)

In accordance with Article 16, paragraph 2, the Government of Ireland of

Ireland reserves the right to stipulate that requests and annexed documents

29

shall be 'addressed to it accompanied by translations into either Irish or

English.

Article 24

In accordance with Article 24, for the purposes of the Convention, the

Government of Ireland deems the following to be judicial authorities:

the District Court

the Circuit Court

the High Court

a Special Criminal Court

the Court of Criminal Appeal

the Supreme Court

the Attorney General of Ireland

the Director of Public Prosecutions

the Chief State Solicitor

30

The Additional Protocol to the European Convention on Mutual Assistance in

Criminal Matters

Declaration

Article 8(2)

In accordance with Article 8, paragraph 2, the Government of Ireland reserves

the right not to accept Chapters II and III.

31

Appendix II

Council of Europe Convention on Laundering, Search, Seizure and

Confiscation of the Proceeds from Crime

Reservations

Article 2(2)

In accordance with Article 2, paragraph 2 Ireland declares that Article 2,

paragraph 1 shall apply only to drug trafficking offences as defined in its

domestic legislation and other offences triable on indictment.

In accordance with Article 14, paragraph 3 Ireland declares that Article 14,

paragraph 2 shall apply only subject to the constitutional principles and the

basic concepts of its legal system.

Article 21 (2)

In accordance with Article 21, paragraph 2 Ireland declares that judicial

documents should be sewed only through its central authority.

Article 25(3)

In accordance with Article 25, paragraph 3 Ireland declares that it reserves

the right to require that requests made to it arid documents supporting such

requests be accompanied by a translation into Irish or English.

Declaration

Article 23(1)

The central authority of Ireland designated in pursuance of Article 23,

paragraph 1 is the Department of Justice, Equality and Law Reform, 72-76

St. Stephen's Green, Dublin 2.

32

Appendix III

Notifications under Articles 7 and 17 of the United Nations Convention against

Illicit Traffic in Narcotic Drugs and Psychotropic Substances.

Article 7. paragraph 8

The authority designated by Ireland under Article 7, paragraph 8 is the

Department of Justice, Equality and Law Reform, 72-76 St. Stephen's Green,

Dublin 2.

Article 7. paragraph 9

The languages which are acceptable to Ireland for the purposes of Article 7,

paragraph 9 are Irish and English.

Articles 17. paragraph 7

The authority designated by Ireland under Articles 17, paragraph 7 is the

Department of Foreign Affairs, 80 St. Stephen's Green, Dublin 2.

33

AN BILLE UM EILLIU A CHOSC (LEASU), 2000 PREVENTION OF CORRUPTION (AMENDMENT) BILL,2000

EXPLANATORY AND FINANCIAL MEMORANDUM

Introduction The purpose of this Bill is to strengthen the law on corruption

and enable Ireland to ratify three international agreements, namely-

(i)· the Convention drawn up on the basis of Article K 3 (2) (c) of the Treaty on European Union on the Fight against Corruption involving Officials of the European Com­munities or Officials of Member States of the European Union, done at Brussels on the 26th day of May, 1997;

(ii) the Convention on Bribery of Foreign Public Officials in International Business Transactions, drawn up under the auspices of the, Organisation for Economic Co-operation and Development and adopted at Paris on the 21st day of November, 1997; and

(iii) the Criminal Law Convention on Corruption, drawn up under the auspices of the Council of Europe and done at Strasbourg on the 27th day of January, 1999.

Exchequer Costs and Staffing Implications This Bill will not give rise to direct exchequer costs and has no

staffing implications.

Section 1 (Interpretation) This defines the Prevention of Corruption Act, 1906, as the Act of

1906 so as to avoid repetition of the full title of this Act elsewhere in the Bill. It also contains standard interpretative provisions. .

Section 2 (Amendment of section 1 of Act of 1906) This section replaces section 1 of the Act of 1906. Only certain

elements of the section are actually being changed, but for con­venience of reference the section is being completely replaced rather than partially amended.

There are three main changes to section 1 of the Act of 1906 which deals with the offence of corruption of 0I;.b<y an agent. First, the wording of the offence is being revised in order to make it more comprehensive. The revised offence will apply not only, as at present, to corruption of an agent, but also to corruption of a third party, for example a spouse of the agent, with a view to influencing the conduct of the agent. Second, the definition of "agent" is being extended to

1

cover categories of office holders and officials, both national and foreign, not presently covered by the Act of 1906. Third, the maximum penalty for the offence is being increased from 7 years imprisonment and/or a fine of £50,000 to 10 years imprisonment and an unlimited fine.

Section 3 (Corruption occurring panially in State) The three Conventions to which this Bill relates require the

national law of participating states to apply to corrupt acts which occur wholly or partly on their territories. An act of corruption could occur partly in Ireland where, for example, an offer of a bribe is made abroad but received in Ireland. This section clarifies Irish juris­diction in such cases by providing that a person may be tried in Ireland for the offence of corruption if any element of the offence occurred here.

Section 4 (Corruption occurring outside State) Normally, Irish criminal law is territorial in its jurisdiction, that is

to say that it applies only to acts done in Ireland, but there are excep-· tions, and one is proposed in this instance. This section extends Irish jurisdiction extra-territorially to corruption abroad involving Irish office holders or officials. Otherwise, if the offence were limited to the national territory, an Irish office holder or official could evade the Prevention of Corruption Acts by accepting a bribe while outside Ireland.

Section 5 (Corruption in offic.e) This section creates a new offence of corruption in office. It applies

to Irish office holders and officials and seeks to deal with a situation not covered by the offence of corruption. The offence of corruption, while broad, deals only with situations where an office holder or official seeks or accepts a bribe from someone in return for doing or not doing some act. It does not deal with a situation where an office holder or official acts corruptly without the involvement of anyone else, for example by making a biased decision in order corruptly to benefit a member of his or her family. The new offence will therefore criminalise any act or omission by an Irish office holder or official done with the intention of corruptly obtaining a gift, consideration or advantage for that office holder or official or any other person.

Section 6 (Offences by bodies corporate) This is a standard provision enabling responsibility for an offence

by a corporate body, in this case corruption, to be attributed to cer­tain of its officers, so that individuals as well as the corporate body can be held liable for the offence.

Section 7 (Short title, collective citation and construction) This is a standard technical provision setting out the title of the

Bill and providing that it and the Prevention of Corruption Acts, 1889 to 1995, may be cited together as one.

An Roinn Dli agus Cirt, Comhionannais agus Athch6irithe DIE, Eantiir, 2000.

WI. P50672111/1. 925. 1100. Cahill. (X4064S). G.30-16.

2

AN BILLE UM EILLHJ A CHOSC (LEASU), 2000 PREVENTION OF CORRUPTION (AMENDMENT) BILL,2000

Mar a tionscnaiodh As initiated

ARRANGEMENT OF SECTIONS

Section 1. Interpretation.

2. Amendment of section 1 of Act of 1906.

3. Corruption occurring partially in State.

4. Corruption occurring outside State.

5. Corruption in office.

6. Offences by bodies cQrporate.

7. Short title, collective citation and construction.

[No.1 of 2000]

ACTS REFERRED TO

Prevention of Corruption Act, 1906

Prevention of Corruption Acts, 1889 to 1995

Public Bodies Corrupt Practices Act, 1889

--

... - .. - ............. -..... , .. ::~:.:

2

1906, c. 34

1889, c. 69

----~ __________ 7"!7,!a:!!

AN BILLE UM EILLIU A CHOSC (LEASU); 2000 PREVENTION OF CORRUPTION (AMENDMENT) BILL,_2000

--BILL entitled

5 AN ACT TO GIVE EFFECT :1'0 TI~~_~ CONV-El;fT=Jqt\I(P.RA~_;~;,,", __ .~ __ ",.:..... ~- _ "''"'~- ~~-., UP ON THE BASIS-OP---ARTlCLE K -3(2)(c) --0F-::rHE'-- . ""'''''''''',~,' TREATY ON EUROPEAN or,HON ON TIIE FIGHT AGAINST CORRUPTION INV()LVING OFFICIALS OF THE EUROPEAN COMMUNITrES OR OFFICIALS OF

10 MEMBER STATES OF THE EUltOPEAN UNION D01'-"'E AT BRUSSELS ON THE 26th pAY OF MAY, 1997, THE CONVENTION ON COMBATING BRIBERY OF FOR­EIGN PUBLIC OFFICIALS IN r NTERNATIONAL BUSI­NESS TRANSACTIONS DRAWN UP UNDER THE AUS-

15 PICES OF THE ORGANISATION FOR ECON01-flC CO­OPERATION AND DEVELOPMENT AND ADOPTED AT PARIS ON THE 21st DAY OF NOVEMBER 1997, _~1'I,jTI THE CRIMINAL LAW CONVENTION ON CORRUPTIO~ DRAWN UP UNDER THE AUS/'ICES OF THE COT3NCIL

20 OF EUROPE' AND DONE AT STRASBOURG O~ THE 27th DAY OF JANUARY, 1999. AND FOR THAT P'lJR-, POSE TO AMEND CERTAIN r~NACTME1\TS _~"""TI TO PROVIDE FOR RELATED MA'rTERS.

BE IT ENACTED BY THE OIREA CHT AS AS FOLI..O\\'"S:

25 1.-(1) In this Act "the Act of 190(," means the IT;!Ten;:ion. of Interpretation.

Corruption Act, 1906.

(2) References in this Act to an act illclude references :,:) ::.=. OjTl~ sion and references to the doing of an lId include referco""-"'" to the making of an omission.

30 (3) References in this Act to any enactment shall ~ c..--cs=. ,=,-1 Z5

references to that enactment as amenut-d, adapted or :=-;=-re..:i by any subsequent enactment including thj~ Act.

2.-The Act of 1906 is hereby amend~d by the sut>sUo:;'-c 0f L.e Amendment of: following section for section 1: se:::tion 1 of ACt of 19)5.

35 "1.-(1) An agent or any other person who-

(a) corruptly accepts or oblllins, or

(b) corruptly agrees to acccpl or attempts to ~

3

-, :co

-.£

-----_._--_._-------- . ---_._.-_._._ ..... _ ......... __ .-....•..•...... -.- ...... -...•........ -•.... --..•.....• - .............. .

for himself or herself, or for any other person, any gift, consider­ation or advantage as an inducement to, or reward for, or other­wise on account of, the agent doing any act or making any omis­sion in relation to his or her office or position or his or her principal's affairs or business shall be guilty of an offence. 5

(2) A person who-

(a) corruptly gives or agrees to give, or

(b) corruptly offers,

any gift or consideration to an agent or any other person, whether for the benefit of that agent, person or another person, 10 as an inducement to, or reward for, or otherwise on acc(:>u~t of, the agent doing any act or making any omission in relation to his or her office or position or his or her principal's affairs or business shall be gUilty of an offence. : '."- ' ..

~ - .# '. ' ,,-" • .;.

(3) A persoIi .. w.h9,.~!a}bwihgly.:~iv~s to~::aBiep:t;~r*'~n".ag~t .. .-.:i5.~~: .. ,~~-.;:-.;¢::,.,,~;.~~ .. who knowingly uses-with-intent=lo'·deceive his'ut'lfer pri.nciP'aI; .. .-... ~ ... _ .. any receipt, account or other document in respect of which the principal is interested, and which contains any statement which is false or erroneous or defective in any material particular, and which to his or her knowledge is intended to mislead the princi- 20 pal shall be guilty of an offence.

(4) A person guilty of an offence under this section shall be Iiable- '

(a) on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 25 months or to both, or

(b) on conviction on indictment to a fine or to imprison­ment for a term not exceeding 10 years or to·both.

(5) In this Act-

'agent' includes-

(a) any person employed by or acting for another,

(b) (i) an office holder or director (within the meaning,

30

in each case, of the Public Bodies Corrupt Prac­tices Act, 1889, as amended) of, and a person occupying a position of employment in, a public 35 body (within the meaning aforesaid) and a special adviser (within the meaning aforesaid),

(ii) a member of Dail Eireann or Seanad Eireann,

(iii) an Attorney General (who is not a member of Dail Eireann or Seanad Eireann), 40

(iv) the Comptroller and Auditor General,

(v) the Director of Public Prosecutions,

(vi) a judge of a court in the State,

4

• ' •• "'tr «.,' '$ fbl f "S M·rn ...... 1_

-.--.""---~--~------.-----------.------"-.------.. - .. --.--.----.---"-----~.------

5

10

15

20

(vii) any other person employed by or acting on behalf of the public administration of the State, and

(c) (i) a member of the government of any other state,

(ii) a member of a parliament, regional or national, of any other state,

(iii) a member of the European Parliament,

(iv) a member of the Court of Auditors of the Euro­pean Communities,

(v) a member of the Commission of the European Communities,

(vi) a public prosecutor in any other state,

(vii) a judge of a court in any other state,

(viii) a judge of any court established under an inter­national agreement to which the State is a party,

(ix) a member of, or any other person employed by or acting for or on behalf of, any body estab­lished under an international agreement to which the State is a party, and

(x) any other person employed by or acting on behalf of the public administration of any other state;

'consideration' includes valuable consideration of any kind;

'principal' includes an employer.".

3.-A person may be tried in the State for an offence under the 25 Public Bodies Corrupt Practices Act, 1889, or the Act of 1906, if any

of the acts alleged to constitute the offence was committed in the State notwithstanding that other acts constituting the offence were committed outside the State.

4.-(1) Subject to subsection (2) of this section, where a person 30 does outside the State an act that, if done in the State, would consti­

tute an offence under section 1 of the Act of 1906, he or she shall be guilty of an offence and he or she shall be liable on conviction to the penalty to which he or she would have been liable if he or she had done the act in the State.

35 (2) Subsection (1) shall apply only where the person concerned is a person referred to in subsection (5)(b) of the said section 1.

5.-(1) A public official who does any act in relation to his or her office or position for the purpose of corruptly obtaining a gift, consideration or advantage for himself, herself or any other person,

40 shall be guilty of an offence and shall be liable-

(a) on summary conviction, to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both, or

5

Corruption occurring partially in State.

Corruption occurring outside State.

Corruption in office.

)' » WON

~----

°i.

Offences by bodies corporate.

Short title, collective citation and construction.

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 10 years or to both.

(2) In this section-

"consideration" i~cludes valuable consideration of any kind;

"public officiai" means a person referred 'to in subsection (5)(b) of 5 section 1 of the Act of 1906. -

6.-(1) Where an offence under the Prevention of Corruption Acts, 1889 to 2000, has been committed by a body corporate and is proved to have been committed with the Consent or connivance of or to be attributable to' any wilful l1eglect on the part of a person 10 being a director, manager, , secretary or other officer of 'the boqy c~r­porate, or a person who' was purporting to act in any such capacity, that person as well as the body corporate shall be gUilty of an offence and be liable to be ptoce~~ed against and punished as if ~e or, ~be ,,_ ' .,'" were guilty of the first-mentio~ed offeg~e. :, -,', - ," ,;." '.' 1? -r.:C:"

(2) Where the' affai~~-1it~i:,bod~::coq;~rat;~:a~~~~~'Br1ff;w-":'.'-'';,:';;'~;;j;fq~:r,;4'-'~ members, subsection (1) shall apply in relation to the acts' and defaults of a member in connection with his or her functions of man-agement as if he or she were a director or manager of the body corporate.

7.-(1) This Act may be cited as the Prevention of Corruption (Amendment) Act, 2000., .

(2) The Prevention of Corruption Acts, 1889 to 1995, and this Act may be cited together as the Prevention of Corruption Acts, 1889 to

20

2000, and shall be construed together as one. 25

6

AN BILLE UM EILUU A CHOSC (LEASU),2000

BILLE (mar a tionscnaiodh)

da ngairtear

PREVENTION OF CORRUPTION (AMENDMENT) BILL, 2000

BILL (as initiated)

entitled

-Acht do thabhairt eifeacht don Choinbhinsi6n a

tarraingiodh suas ar bhonn Airteagal K 3(2)(c) den Chonradh ar an Aontas Eorpach maidir Ie Comhrac Eillithe ag Oifigigh. de chuid na gComhphobal Eorpach no ag Oifig­igh de chuid Ballstait den Aontas. Eorpac;h:' agus a rinneadh sa Bhruiseil ali 261f.la.:.ae ... Bhealtaine, 1997, don Choinbhins6n maidir Ie Cur i gCoinne Breabaireacht a Dheanamh ar Oifigigh PhoibIf Coigrfche in Idirbhearta Gno Idirnaisi6nta a tarraingfodh suas faoi choimirce na hEagrafochta urn Chomhar agus Forbairt Eacnamafochta agus a glacadh

An Act to give effect to the Convention drawn. up on the basis of Article K 3(2)(c) of the Treaty on European Union on the Fight Against Corruption involving 9fficials of the EuropeanComml:mities or Officials of¥em-

i bParas an 216 la de Shamhain, 1997, agus don Choinbhinsi6n Dlf Choiriuil maidir Ie hEilliu a tarraingfodh. suas faoi choimfrce Chomhairle na hEorpa agus a rinneadh i Strasbourg an 276 la d'Eanair, 1999, agus chun na crfche sin do leasu achtachan airithe agus do dheanamh socru i dtaobh nithe gaolmhara.

An tAire Dli agus Cirt, Camhianannais agus A[hchbirithe Dli a thialaic,

4 Eanair, 2000

BAILE ATHA CLIA TH ARNA FHOILSnJ AG OIFIG AN tSOLATHAIR

Le ccannach direach 6n OIFIG DHioLTA FOILSEACHAN RIALTAIS,

. . tier S.tate~~O~.1.~~'~,~fql?.$~~Q"l.v.!l!<?!! .. d_on.~ .. ~L,<",,~< . ::>Brussels on the. 26th day of, May; 1"991;-the.:,'--

Convention on Combating Bribery of For-eign Public Officials in International Busi-ness Transactions drawn up under the aus­pices of the Organisation for Economic Co­operation and Development and adopted at Paris on the 21st day of November, 1997, and the Criminal Law Convention on Corruption drawn up under the auspices of the Council of Europe and done at Strasbourg on the 27th day of January, 1999, and for that pur-pose to amend certain enactments and to provide for related matters.

Presented by the Minister for Justice, Equality and Law Reform,

4th January, 2000

TEACH SUN ALLIANCE, sRAID THEACH LAIGHEAN, BAILE ATHA CLIATH 2, n6 trid an bpost 6

FOILSEACHAIN RIALTAIS. AN RANN6G POST.TRACHT6:, 4·5 B6THAR FHEARCHAIR. BAILE ATHA CLIATH 2, ~

(Teil: 01 ·6476834135/36137; Fax: 01 - 4752760) n6 tn aon diolt6ir leabhar.

DUBLIN PUBLISHED BY THE STATIONERY OFFICE

To be purchased directly from the GOVERNMENT PUBLICATIONS SALE OFFICE.

SUN ALLIANCE HOUSE, MOLESWORTH STREET. DUBLIN 2. or by mail order [rom

GOVERNMENT PUBLICATIONS. POSTAL TRADE SECTION, 4 - 5 HARCOURT ROAD. DUBLIN 2,

(Tel: 01 ·6476834/35136137; Fax:OI ·4752760) or through any bookseller. .

£1.00 €1.27

WL P50672!B/I. 925. 1100. Cahill. (X4064B). G.30-16.

ISBN 0-7076-7972-9

9

Number 22 oj 1995.

ETHICS IN PUBLIC OFFICE ACT, 1995.

AN ACT TO PROVIDE FOR THE DISCLOSURE OF INTERESTS OF HOLDERS OF CERTAIN

PUBLIC OFFICES (INCLUDING MEMBERS OF THE HOUSES OF THE OIREACHTAS) AND

DESIGNATED DIRECTORS OF AND PERSONS EMPLOYED IN DESIGNATED POSITIONS IN

CERTAIN PUBLIC BODIES, FOR THE APPOINTMENT BY EACH SUCH HOUSE OF A

COMMITTEE, AND FOR THE ESTABLISHMENT OF A COMMISSION, TO INVESTIGATE

CONTRA VENTIONS OF THIS ACT AND TO ESTABLISH GUIDELINES TO ENSURE

COMPLIANCE THEREWITH, TO PROHIBIT THE RETENTION OF VALUABLE GIFTS BY

HOLDERS OF CERTAIN PUBLIC OFFICES, TO AMEND THE PREVENTION OF

CORRUPTION ACTS, 1889 TO 1916, AND TO PROVIDE FOR RELATED MATTERS.

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART I PRELIMINARY AND GENERAL

Short title. commencement, partial cesser and collective citation.

1.-(1) This Act may be cited as the Ethics in Public Office Act, 1995.

[22nd JuZy, 1995]

(2) (a) (i) Subject to subparagraph (ii), this Act shall come into operation on such day as

the Government appoint by order.

(ii) Subparagraph (i) does 110t apply to-

(I) Part ll.

(II) Part III in so far as it relates to the Chairman and Deputy Chairman of

each House, or

(III) Parts V and Vi in so far as they relate to members.

( b ) (i) If either House by resolution so declares-

(I) Part II in so far as it relates to that House and its members and Clerk and

its committees and their members and clerks,

(II) Part III in so far as it relates to the Chairman and Deputy Chairman of

that House, and

(III) Parts V and Vi in so far as they relate to members of that House,

shall come into operation on such day as may be specified in the resolution.

(ii) If each House by resolution so declares, Part 11 shall come into operation on such

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day as may be specified in the resolution in so far as it relates to joint committees

of both Houses and their members and clerks.

( c) (i) If either House by resolution so declares-

(I) ParI II in so far as it relates to that House and its members and Clerk and

its committees and their members and clerks,

(II) ParI III in so far as it relates to the Chairman and Deputy Chairman of

that House, and

(III) Parts Vand V1 in so far as they relate to members of that House,

shall cease to be in operation as on and from such day as may be specified in the

resolution.

(ii) If either House by resolution so declares, ParI II shall cease to be in operation as

on and from such day as may be specified in the resolution in so far as it relates to

joint committees of both Houses and their mem bers and clerks.

(3) The Prevention of Corruption Acts, 1889 to 1916, and section 38 may be cited together as

the Prevention of Corruption Acts, 1889 to 1995.

Interpretation.

2.-(1) In this Act, save where the context otherwise requires-

"act" includes omission or failure to act and a reference to the doing of an act includes a reference to

the making of an omission, and any cognate words shall be construed accordingly;

"actual knowledge" means actual, direct and personal knowledge as distinct fr0111 constructive,

implied or imputed knowledge and includes. in relation to a fact, belief in its exis~ence the grounds

for which are such that a reasonable person \\"ho is aware of them could not doubt or disbelieve that

the fact exists;

"additional interests" has the meaning assigned to it by section 13;

"benefit" includes-

( a ) a right, privilege, office or dignity and any forbearance to demand money or money's

\vorth or a valuable thing,

( b ) any aid, vote, consent or influence or pretended aid, vote, consent or influence,

( c ) any promise or procurement of or agreement or endeavour to procure, or the holding

out of any expectation of, any gift, loan, fee, reward or other thing aforesaid,

or other advantage and the avoidance of a loss, liability, penalty, forfeiture, punishment or other

disadvantage;

"Clerk" means, in relation to members ofDail Eireann, the Clerk of Da.il Eireann and, in relation to

members of Seanad Eireann, the Clerk of Seanad Eireann;

"commercial price", in relation to the supply of property, whether real or personal, or the supply of a

service, and "commercial consideration", in relation to the lending of property, means-

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( a) where the person by whom the property is supplied or lent or the service is supplied

carries on a business consisting wholly or partly of the supply or lending of property or

the supply of a service, the lowest price or consideration charged by him or her for the

supply or lending in the normal course of business of an equivalent amount of property

of the same kind or for the supply of a service of the same kind and to the same extent

(allowance being made for any discount which is normally given by him or her in

respect of the supply or lending of property of the same kind or the supply of a service

of the same kind) at or about the time of the first-mentioned supply or lending of

propelty or the first-mentioned supply of a service, and

( b ) where the person by whom the property is supplied or lent or the service is supplied

does not carryon a business consisting wholly or paltly of the supply or lending of

property or the supply of a service of the same kind, the lowest price or consideration

for which an equivalent amount of property of the same kind may be purchased or

taken on loan or a service of the same kind and to the same extent may be procured in

the normal course of business (allowance being made for any discount which is

normally given in respect of the supply or lending of propelty of the same kind or the

supply of a service of the same kind) at or about the time of the first-mentioned supply

or lending of propelty or the first-mentioned supply of a service from a person who

carries on such a business;

"the Commission" means the commission established by section 21;

"the Committee", in relation to Oail Eireann or members of Oail Eireann, means the Committee on

~1embers' Interests of Oail Eireann appointed under section 8 and, in relation to Seanad Eireann or

members of Seanad Eireann, means the Committee on Members' Interests of Seanad Eireann

appointed under section 8 and "a Committee" means, as the context may require, ·each of those

committees or either of them;

"committee" and "joint committee" include a sub-committee of a committee or, as the case may be,

joint committee;

"company" means any body corporate;

"connected person", in relation to a person, shall be construed in accordance \"ith subsection (2);

"designated directorship", in relation to a public body, means a prescribed directorship of that body;

"designated position", in relation to a public body, means a prescribed position of employment in that

body;

"director" means a director within the meaning of the Companies Acts, 1963 to 1990, but includes, in

the case of a public body that is not a company (within the meaning of the Companies Act, 1963) and

is specified in subparagraph (8), (9), (10), (11) or (12), or stands prescribed for the purposes of

subparagraph (13), ofparagraph 1 of the First Schedule, a person who is a member of it or a

member of any board or other body that controls, manages or administers it, and any cognate words

shall be construed accordingly;

"election" means a presidential election, a European election. a Oail election, a local election (within

the meaning, in each case, of the Electoral Act, 1992), or an election ofa member or members to

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serve in Seanad Eireann, and any cognate words shall be construed accordingly;

"functions" includes powers and duties and references to the performance of functions include, with

respect to powers and duties, references to the exercise of the powers and tl~e carrying out of the

duties and, in relation to an office holder, includes functions conferred on him or her by the

Government or in pursuance of a decision of the Government and functions of the office holder as a

member of the Government;

"gift" means a gift of money or other property;

"House" means House of the Oireachtas and, in relation to a person who is an office holder or

member, means the House of the Oireachtas of which he or she is a member, and any cognate words

shall be construed accordingly;

"interest" means an interest specified "in the Second Schedule;

"lend" includes lease or let and any cognate words shall be construed accordingly;

"member" means a member ofDail Eireann or a member of Sean ad Eireann;

"the Minister" means the Minister for Finance;

"office holder" means-

(a) a person who is a Minister of the Government or a Minister of State,

( b ) a member who holds the office of Attorney General,

( c ) a person who is Chairman or Deputy Chairman of Dail Eireann or Chairman or Deputy

Chairman of Seanad Eireann, and

( d ) a person who holds-

(i) the office of chairman of a committee of either House, being an office that stands

designated for the ti"me being by resolution of that House, or .

(ii) the office of chairman of a joint committee of both Houses, being an office that

stands designated for the time being by resolution of each House;

"prescribed" means prescribed by regulations made by the Minister;

"property" means real or personal property;

"public body" shall be construed in accordance with the First Schedule;

"registrable interest" shall be construed in accordance with the Second Schedule;

"registration date" means-

( a ) in relation to Dail Eireann and its members and Clerk-

(i) the date that is 30 days after the commencement of Part I1 in so far as it relates to

Dail Eireann and its members and Clerk and its committees and their members

and clerks or, if on that date Dail Eireann stands dissolved, the date that is 30 days

after the date of the first meeting of Dail Eireann after the first-mentioned date,

and

(ii) the date of each anniversary of the first registration date or, if on any such date,

Dail Eireann stands dissolved, the date that is 30 days after the date of the first

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meeting of Dail Eireann after the first-mentioned date, and

( b ) in relation to Seanad Eireann and its members and Clerk-

(i) the date that is 30 days after the commencement of Part II in so far as it relates to

Seanad Eireann and its members and Clerk and its committees and their members

and clerks or, if on that date Dail Eireann stands dissolved, the date that is 30 days

after the date of the first meeting of Seanad Eireann after the first general election

for members of Seanad Eireann after that dissolution, and

(ii) the date of each anniversary of the first registration date or, if on any such date,

Da-il Eireann stands dissolved, the date that is 30 days after the date of the first

meeting of Seanad Eireann after the first general election for members of Seanad

Eireann after that dissolution;

"relative", in relation to a person, means a brother, sister, parent or spouse of the person or a child of

the person or of the spouse;

"relevant authority" has the meaning assigned to it by section 18:

"special adviser" has the meaning assigned to it by section 19;

"spouse", in relation to a person, does not include a spouse who is living separately and apart from

the person;

"value", in relation to a gift, means the price \vhich the property the subject of the gift would fetch if

it were sold on the open market on the date on which the gift was given in such manner and subject to

such conditions as might reasonably be calculated to obtain for the vendor the best price for the

property, and any cognate words shall be construed accordingly.

(2) (a) Any question whether a person is connected with another shall be determined in

accordance with the following provisions of this paragraph (any provision that one

person is connected \\-ith another person being taken to mean also that that other

person is connected with the first-mentioned person):

(i) a person is connected with an individual if that person is a relative of the

individual,

(ii) a person, in his or her capacity as a trustee of a trust, is connected with an

individual who or any of whose children or as respects whom any body corporate

which he or she controls is a beneficiary of the trust,

(iii) a person is connected with any person with whom he or she is in partnership,

(iv) a company is connected with another person if that person has control of it or if

that person and persons connected with that person together have control of it,

(v) any two or more persons acting together to secure or exercise control of a

company shall be treated in relation to that company as connected with one

another and with any person acting on the directions of any of them to secure or

exercise control of the company.

(b) Inparagraph (a) "control" has the meaning assigned to it by section 157 of the

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Corporation Tax Act. 1976, and any cognate words shall be construed accordingly.

(3) For the purposes of this Act. a person or a connected person has a material interest in a

matter if the consequence or effect-

(a) of the performance by the person ofa function of his or her office, directorship,

designated position. or position as a special adviser, as the case may be, or

( b) of any decision made in relation to or in the course or as a result of the performance of

such a function by the person,

concerning that matter may be to confer on or withhold from the person or the connected person a

significant benefit without also conferring it on or withholding it from persons in general or a class of

persons \\'hich is of significant size having regard to all the circumstances and of which the person or

the connected person is a member.

(4) For the purposes of this Act. a person shall be deemed to have an interest in property if the

person would be regarded as having. for the purposes of the Capital Acquisitions Tax Act, 1976, the

power to make a disposition of that interest.

(5) In this Act-

( a ) a reference to a Part, section or Schedule is a reference to a Part or section of, or a

Schedule to, this Act unless it is indicated that reference to some other provision is

intended, and

( b ) a reference to a subsection, paragraph, subparagraph, clause or subclause is a reference

to a subsection, paragraph, subparagraph, clause or subclause of the provision in which

the reference occurs. unless it is indicated that reference to some other provision is

intended. and

( c ) a reference to any enactment shall be construed as a reference to that enactment as

amended, adapted or extended by or under any subsequent enactment.

Regulations.

3.-( 1) Subject to subsection (3), the ;--'1inister may-

( a) by regulations provide for any matter referred to in this Act as prescribed or to be

prescribed, and

( b ) make regulations generally for the purpose of gi\'ing effect to this Act and, if in any

respect any difficulty arises during the period of two years after the commencement of

this section in bringing into operation this Act, by regulations do anything which

appears to be necessary or expedient for bringing this Act into operation.

(2) Regulations under this section may contain such incidental, supplementary and consequential

provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(3) The Minister may prescribe-

( a ) for the purposes of the definition of "designated directorship" in section 2, a

directorship of a public body, or

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(b) for the purposes of the definition of "designated position" in section 2, a position of

employment in a public body,

if, but only if, he or she considers that it is necessary in the public interest to do so in order to ensure,

in a case in which, in the opinion of the Minister, a conflict could arise between an interest referred to

in section 17 or, as the case may be, section 18 and the public interest in the performance ofa

function of such a directorship or position, that the function will not be performed without the

disclosure of the first-mentioned interest.

(4) Before making regulations in relation to a matter referred to in subsection (3), the Minister

shall consult with such other Ministers of the Government (ifany) as he or she considers appropriate.

(5) (a) The Minister may, by regulations under this section, vary, having regard to any change

in the value of money occurring after the passing of this Act, any monetary amount

specified in this Act (other than sections 37 and 38).

( b ) If, on any amendment of the law relating to elections, it appears to the Minister to be

expedient-

(i) to amend section 20) for the purpose of assimilating "commercial price" to any

definition of "commercial price" in that law, or

(ii) to amend section 15 (7) for the purpose of assimilating the definition of

"donation" to any definition of "donation" in that law,

the Minister may for those purposes by regulations amend the definition mentioned

first in subparagraph (i) or, as may be appropriate, the definition mentioned first in

subparagraph (ii).

( c ) Where regulations under this subsection are proposed to be made, a draft of the

regulations shall be laid before each House and the regulations shall not be made until

a resolution approving of the draft has been passed by each House.

(6) Every regulation under this Act (other than subsection (5)) shall be laid before each House as

soon as may be after it is made and. if a resolution annulling the regulation is passed by either House

within the next 21 days on which that House has sat after the regulation is laid before it, the

regulation shall be annulled accordingly, but without prejudice to the validity of anything previously

done th~reunder.

Expenses.

4.-Any expenses incurred by the Minister in the administration ofthis Act and, to such extent as

may be sanctioned by the Minister, any other expenses incurred in the administration of this Act shall

be paid out of moneys provided by the Oireachtas.

PART II MEMBERS

Statements of members' registrable interests for Clerks.

5.--(1) Subject to subsection (3), a person who is a member on a registration date shall, not later than

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30 days after that date, prepare and furnish to the Clerk a statement in writing, in such form as may

be determined by the Clerk after consultation with the Committee and the Commission or in a form

to the like effect, of his or her registrable interests and containing appropriate information in relation

to such matters (if any) respecting those interests as may be specified in the first-mentioned form,

being registrable interests of the member-

( a) if the person is a member on the first registration date, at any time during the period

from the passing of this Act to that date, and

( b ) if the person is a member on a subsequent registration date, at any time when he or she

was a member during the period between that registration date and the last previous

registration date.

(2) \Vhere a person who is a menlber on a registration date did not have a registrable interest at

any time during the appropriate period specified in subsection (1), he or she shall, not later than 30

days after that date, prepare and furnish to the Clerk a statement in writing of that fact.

(3) It shall not be necessary to specify in a statement under this section the amount or monetary

value of any interest or the remuneration of any trade, profession, employment, vocation or other

occupation included in the statement.

The Register.

6.-(1) As soon as may be after a registration date, each Clerk shall, as respects that date, establish a

register (which shall be known as the Register of Interests of Members of Dail Eireann or the

Register ofInterests of Members of Seanad Eireann, as may be appropriate, followed, in each case,

by a reference to the year in which the registration date concerned occurs).

(2) When a statement is furnished to a Clerk under subsection (1) or (2) of section 5-

( a ) he or she shall, within 60 days after the registration date to which it r-elates or as soon

as may be thereafter. enter it or a copy of it in the register established as respects that

date by that Clerk under subsection (1), and

( b ) if the statement is that of a Minister of the Government or a Minister of State, furnish a

copy of it to the Taoiseach, as soon as may be.

(3) Each Clerk shall, within 60 days after each registration date or as soon as may be thereafter,

furnish to the Commission and cause to be laid before Dail Eireann or Seanad Eireann, as may be

appropriate, and published in Iris Oifigiitil a copy of the register established by him or her under

subsection (1) in relation to that registration date.

(4) (a) Each Clerk may correct errors in the register established by that Clerk or amend such a

register to take account of statements furnished to him or her under section 29 (1) in so

far as they relate to registrable interests.

( b ) A Clerk shall, as soon as may be after the correction of an error under paragraph (a)

or the receipt by him or her of a statement referred to in paragraph (a)-

(i) cause a statement of the correction or a copy of the statement referred to in

paragraph (a), as the case may be, to be laid before the House and published in

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Iris Oijigizlil, and

(ii) if either of those statements relates to a Minister or Minister of State, furnish a

copy of it to the Taoiseach.

Declarations of interest by members in Oireachtas proceedings.

7.--(1) This section applies to proceedings in each House, a committee of either House or ajoint

committee of both Houses.

(2) A member who proposes to speak or vote in proceedings to which this section applies and

who has qctual knowledge that he or she or a connected person has a material interest in the subject

matter of the proceedings shaIJ-

( a ) if he or she proposes to speak in the proceed ings, make a declaration of the fact

aforesaid in the proceedings before or during his or her speech, and

( b ) if he or she proposes to vote, but does not speak, in the proceedings, make the

declaration aforesaid in writing and furnish it before voting to the Clerk, or the clerk to

the committee. concerned, as may be appropriate.

(3) For the purposes of subsection (2), a person (being a member or a connected person) has a

material interest in the subject matter of proceedings if the consequence or effect of any decision by

the House or the committee or joint committee concerned, or by the Government or an office holder,

concerning that matter may be to confer on or \vithhold from the person a significant benefit without

also conferring it on or withholding it from persons in general or a class of persons which is of

significant size having regard to all the circumstances and of\\"hich the person is a member.

(4) Subsection (2) does not apply to an interest of a mem ber that is included in a statement

which or a copy ofwhich has been laid before the House under seC/ion 6.

(5) A declaration under subsection (2) shall-

( a ) in case an official report of the proceedings concerned is published. be included in the

repOIi, and

( b ) in case such a repOli is not published, be published in such manner as the Clerk, or the

clerk to the committee, concerned may direct.

Appointment of: and complaints to, Committees.

8.--(1) Each House shall as soon as may be after the commencement of this section and, thereafter,

as soon as may be after the first meeting of that House subsequent to a general election for members

of that House appoint a select committee which shall be known-

(a) in the case of the committee appointed by Dciil Eireann as the Committee on Members'

Interests of Dail Eireann, and

( b ) in the case of the committee appointed by Seanad Eireann, as the Committee on

Members' Interests of Seanad Eireann,

to perform the functions conferred on it by this Act.

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(2) A person (other than a member) who considers that a member (other than a member who is

or, at the relevant time, was an office holder) may have contravened section 5 or 7 may make a

complaint in writing in relation to the matter to the Clerk and, subject to subsectiun (3), the Clerk

shall refer the matter to the Committee and shall furnish a copy of the complaint to the Committee.

(3) The Clerk concerned shall consider a complaint under subsection (2) and, if the Clerk is of

opinion that it is frivolous or vexatious, he or she-

( a ) shall not refer it to the Committee, and

( b ) shall prepare a statement in writing of the reasons for his or her opinion and furnish a

copy of it to-

(i) the person who made the complaint,

(ii) the member concerned, and

(iii) the Committee.

(4) A member who considers that a member (other than a member who is or, at the relevant

time, v .. as an office holder) may have contravened section 5 or 7 may make a complaint in writing in

relation to the matter to the Committee of that House.

(5) A complaint may not be made under this section in respect of a person who has ceased to be

a member.

Investigations by Comminees.

9.-(1) Where a complaint is referred or made to a Committee under section 8, or a Committee

considers it appropriate to do so in the case of a member (other than a member who is or, at the

relevant time, was an office holder). it shall carry out an investigation to determine whether the

member concerned has contravened section 5 or 7, as the case Jllay be.

(2) Where a Committee, either during or at the conclusion oran investigation under this section,

becomes of opinion that the member the subject of the investigation has not contravened the section

of this Act to which the investigation relates, being either sectio11 5 or 7, but may have contravened

the other of those sections, it may carry out an investigation under this section to determine whether

the person has contravened that other section.

(3) Where-

then-

( a ) a complaint is referred or made to a Committee under section 8, or the Committee is

carrying out an investigation under this section whether following such a complaint or

otherwise, and

( b ) at any time before the Committee has complied with section lOin relation thereto, the

person the subject of the complaint or investigation ceases to be a member,

(i) the Committee shall take no steps or no further steps in relation to the matter

unless the person requests the Committee in writing to carry out an investigation

of the matter under subsection (1) or, as the case may be, complete such an

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---_._-._._._._ ..

investigation, and

(ii) if the Committee is so requested as aforesaid. it shall, subject to section 31,

comply with the request.

(4) Subject to subsection (3), a Committee shall not carry out an investigation under this section

in relation to-

e a) a person who has ceased to be a member, or

( b ) a person who is or, at the relevant time, was an office holder.

(5) Where-

( a ) in relation to a person who is a member but is not an office holder, a complaint had

been, or been deemed to be, referred or made to a Committee, or a matter that a

Committee had considered it appropriate to investigate had been, or been deemed to

be, otherwise before it,

( b ) following a dissolution of Dail Eireann, the Committee has ceased to exist, and

( c ) the Committee had neither-

(i) complied with seclion10 in relation to the complaint or matter, nor

(ii) discontinued the investigation of the complaint pursuant to section 31,

the complaint or matter shall be deemed, for the purposes of this section, to have been referred or

made under section 8 to, or, as the case may be, to be before. the Committee of the House of which

the person is a member, and this section shall apply and have effect accordingly in relation to the

complaint or matter.

Reports by Committees.

10.-( 1) Subject to section 31, where a Committee carries out an investigation under section 9, it

shall prepare a report in writing of the results of the investigation, and-

( a) shall furnish a copy of the report to the member concerned and, if the investigation

follmved a complaint under section 8, the person who made the complaint, and

(b) ifit determines that the member has contravened section 5 or 7, it shall cause a copy of

the rep0I1 to be laid before the House.

(2) A report under subsection (1) shall set out the findings of the Committee concerned together

with its determination in relation to the follo\,iing matters, namely-

e a ) \vhether there has been a contravention of secTion 5 or 7 by the member concerned and

whether the contravention is continuing,

( b ) in case the determination is that there has not been a contravention of section 5 or 7 by

the member, whether the Committee is of opinion that the complaint \\'as frivolous or

vexatious or that there were no reasonable grounds for it, and

( c ) in case the determination is that there has been a contravention of section 5 or 7 by the

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member-

(i) if the determination is that the contravention is continuing, the steps required to

be taken by him or her to secpre compliance by him or her with section 5 or 7, as

the case may be, and the period oftime within which such steps should be taken,

(ii) whether the contravention was committed inadvel1ently, negligently, recklessly or

i ntenti onal Iy,

(iii) whether the contravention was, in all the circumstances, a seriolls or a minor

contravention, and

(iv) whether the member acted in good faith and in the belief that his or her action was

in accordance with guidelines published or advice given in writing by a

Comm ittee under section J 2,

and may refer to such other matters, if any, as the Committee considers appropriate.

(3) \\There a Committee adjourns or postpones proceedings in relation to an investigation under

section 9, it may, if it considers it appropriate to do so, prepare an interim report in writing in relation

to the investigation and furnish a copy thereof to the persons specified in subsection (1) (a).

A ward of costs by Comminees.

11.-( 1) ( a) \\There, following an investigation by a Comm ittee under section 9 of a complaint

referred or made to it under section 8, the Committee determines that the complaint

was frivolous or vexatious or that there has not been a contravention of section 5 or 7

and that there \vere no reasonable grounds for the complaint, it may order that such

amount (not exceeding £ 1,500) as it considers appropriate, having regard to all the

circumstances, in respect ofthe reasonable costs and expenses incurred by any person

before it (including costs and expenses in respect of legal representation) in relation to

the investigation shall be paid to that person by the person who made the complaint.

( b ) Where. in relation to an investigation under secTion 9, amounts are ordered to be paid

under paragraph (a) to more than one person, the aggregate of those amounts shall not

exceed £1,500.

(2) For the purposes of subsection (1), a Committee may measure the costs and expenses

aforesaid.

(3) Any costs or expenses ordered by a Committee under subsection (1) to be paid by a person

may be recovered from that person by the person to whom they are ordered to be paid as a simple

contract debt in any court of competent jurisdiction.

Guidelines and advice from Committees.

12.-(1) A Committee-

( a ) shall, after consultation with the Commission and the other Committee, from time to

time draw up and publish to members guidelines concerning the steps to be taken by

members to ensure compliance by them with this Act generally and, in particular, with

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sections 5 and 7, and

( b ) may, at the request of a member, give advice to the member in relation to any

provision of this Act or as to the application, in relation to any particular case, of

section 5 or 7.

(2) When a request is made under subsection (1) (b) in relation to a particular case, the section

concerned of this Act shall not, as respects the member who made the request, apply in relation to

that case during the period from the making of the request to the time when advice is given by a

Committee in relation to the case or it declines to give such advice.

(3) A Committee shall, within 21 days of the receipt by it of a request for advice under

subsection (1) (b), furnish the advice to the member concerned or notify him or her of its decision to

decline to do so.

(4) A person shall act in accordance with guidelines and advice published or given to the person

under this section unless, by so doing. the act concerned would constitute a contravention of another

provision of this Act.

(5) In this section "member" does not include a member \\"ho is an office holder.

PART III OFFICE HOLDERS

Statements of office holders' additional interests for Clerks.

13.--(1) A person who is an office holder on a registration date shall prepare a statement in writing,

in such form as may be determined by the Minister or in a form to the like effect, of his or her

additional interests (if any) and containing appropriate information in relation to such matters (if any)

respecting those interests as may be specified in the first-mentioned form, being additional interests

of the person-

( a) if the person is an office holder on the first registration date, at any time during the

period from the passing of this Act to that date. and

( b ) if the person is an office holder on a subsequent registration date, at any time when he

was an office holder during the period between that registration date and the last

previous registration date.

(2) It shall not be necessary to specify in a statement under subsection (1) the amount or

monetary value of any additional interest or the remuneration of any trade, profession, employment,

vocation or other occupation included in the statement.

(3) The Clerk shall, as soon as may be after the receipt by him or her of a statement under

subsection (1), furnish a copy thereof to the Commission and (if it is a statement of a Minister of the

Government or a Minister of State) the Taoiseach.

(4) A statement under this section of a person who is an office holder on any registration date

shall be furnished by the person to the Clerk not later than 30 days after that date.

(5) In this section "additional interest", in relation to an office holder, means any interest

specified in the Second Schedule of which the office holder has actual knowledge of-

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( a ) the spouse of the office holder, or

( b ) a child of the office holder or of his or her spouse.

which could materially influence the office holder in or in relation to the performance of the

functions of his or her office by reason of the fact that such performance could so affect those

interests as to confer on or withhold from the office holder or the spouse or child a substantial

benefit.

Statements of interest by office holders in relation to the performance of certain functions.

14.-(1) An office holder who proposes to perform a function of his or her office and who has actual

knowledge that-

( a ) he or she or a connected person or another office holder, or

( b ) a person who is specified in a statement under subsection (2) furnished to the office

holder by another office holder and who is, in relation to that other office holder, a

connected person,

has a material interest in a matter to which the function relates shall, before or, if that is not

reasonably practicable, as soon as may be after such performance, prepare and furnish-

(i) in the case of the Taoiseach, to the chairman of the Commission,

(ii) in the case of any other Minister of the Government or a Minister of State, to the

Taoiseach and the Commission, and

(iii) in the case of any other office holder, to the Commission, a statement in writing

of those facts and of the nature of the interest.

(2) Where an office holder or a person acting on behalf of an office holder proposes to make a

request to another office holder ("the second holder") in relation to the performance of a function by

the second holder and the office holder by or on whose behalf the request is made ("the first holder")

has actual knowledge that he or she or a connected person has a material interest in a matter to which

the function relates, the first holder shall, before or at the time of the making of the request, furnish to

the second holder a statement in writing of those facts and of the nature of the interest.

(3) Where the knowledge or belief of an office holder that-

( a ) another office holder who is a member of the Government, or

( b ) a person who in relation to that other officer is a connected person,

has a material interest in a matter to which a function of the Government relates derives solely from

information in a statement made by that other office holder at or for the purposes of a meeting of the

Government, subsection (1) shall not, as respects that interest, apply to the first-mentioned office

holder, but the Taoiseach shall, before or as soon as may be after the performance of the function,

cause a statement in writing in relation to that interest to be prepared and furnished to the

Commission.

(4) References in this section to the performance ofa function of the office of an office holder

are references to the performance of the function by the office holder personally or by another person

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in pursuance of a direction given to the person, in relation to the pmiicular matter concerned, by the

office holder personally or a person acting on behalf of and with the personal knowledge of the office

holder.

Gifts to office holders.

15.--(1) Subject to the provisions of this section, where a gift the value of which exceeds £500 is

given to an office holder by virtue of his or her office-

( a) the property the subject of the gift shall be deemed to be a gift given to the State and

shall vest in the Minister,

( b ) the office holder shall, as soon as may be, inform the Secretary to the Government of

the gift and shall retain custody of the property on behalf of the State until

arrangements are made in relation thereto under paragraph (c) and the office holder

shall dispose of the propelty in accordance with those arrangements when so directed

by the Secretary to the Government, and

( c ) the Secretary to the Government shall arrange, in accordance with the general

directions of the Government, for-

(i) custody of the property by or on behalf of the State (including the giving of it on

loan to a person). or

(ii) its disposal, \\Ohether by sale or gift,

and shall dispose, in accordance with those general directions, of any proceeds of such

a loan or sale (including by their payment into the Exchequer or disposal for charitable

purposes)

(2) For the purposes of subsection (J), a gift given to­

( a ) an office holder,

( b ) the spOLlse of an office holder. or

(c) a child of an office holder or of his or her spOLlse.

is given to the office holder by vil1ue of his or her office unless the gift is given­

(i) as a donation, or

(ii) by a friend or relative of the recipient and for personal reasons only, or

(iii) by virtue of an office (other than that by reference to which a person is an office

holder) or position held or the status enjoyed by the recipient.

(3) The Secretary to the Government shall, in accordance with the general directions of the

Government-

( a ) determine, for the purposes of subsection (1), the value of property the subject of a gift

given to an office holder by virtue of his or her office, and

( b ) determine, for the purposes of subsections (1) and (2), the question whether a gift is

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given to an office holder by virtue of his or her office,

if there is a doubt in relation to the value aforesaid or, as the case may be, the question aforesaid.

(4) (a) Subject to paragraphs (Q) and (c), the Government shall draw up and publish to office

holders guidelines concerning the steps to be taken by an office holder if-

(i) he or she, or

(ii) the spouse of the office holder, or

(iii) a child of the office holder or of his or her spouse,

is offered or supplied with;-

(I) property or a service at a price that is less than the commercial price of

the property or service, as the case may be,

(II) a loan of property free of charge or for a consideration that is less than the

commercial consideration for the loan, or

(III) a service free of charge.

( b ) Paragraph (a) does not apply to propert);, a loan of property or a service-

(i) offered or supplied-

(1) as a donation,

(II) by a friend or relative of the person to whom the offer or supply is made

and for personal reasons only,

(III) by virtue of an office (other than one by reference to which a person is an

office holder) or position held or status enjoyed by the person to \\'hom it

is offered or supplied,

or

(ii) the offer or supply of which is not intended or calculated to confer, and does not

confer, directly or indirectly, a benefit on the office holder concerned.

( c ) The Government shall cause a draft of any proposed guidelines under paragraph (a) to

be given to the Commission and shall, before drawing up the guidelines, consider any

submissions made to them by the Commission in relation to the draft.

( d) Office holders shall act in accordance with guidelines published to them under this

subsection.

(5) Where, for any reason, the Secretary to the Government is unable to perform his or her

functions under this section or the position of Secretary to the Government is vacant, those functions

may be performed by such other person as the Taoiseach may determine.

(6) Section 19 (2) of the State Property Act, 1954, shall not apply to a gift to which this section

applies but where land vests in the Minister by virtue of subsection (1), the land shall become and be

State land for the purposes of that Act and may be dealt with accordingly.

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(7) In this section. "donation" means a contribution for political purposes.

PART IV THE PUBLIC SERVICE

Statements by Attorney General.

16.--( 1) A person who holds or held the office of Attorney General-

( a ) shall, subject to seclion 20 (3), in each year during any part of which he holds or held

that office prepare and furnish to the Taoiseach and the Commission a statement in

writing of-

(i) the interests of the person, and

(ii) the interests of which he or she has actual knowledge of his or her spouse or a

child of the person or of his or her spouse,

during the appropriate period specified in section 20 (1) which could materially

influence the person in or in relation to the performance of the functions of that office

by reason of the fact that such performance could so affect those interests as to confer

on or withhold from the person or the spouse or child a substantial benefit, and

( b ) in any case where such a function falls to be performed and he or she has actual

knowledge that he or she or a connected person has a material interest in a matter to

which the function relates shall, before or as soon as may be after such performance,

prepare and furnish to the Taoiseach and the Commission a statement in writing of

those facts and of the nature of the interest.

(2) (a) Section 20 shall apply to a statement under subseclion (1) (a) as if the references in

that section to sections 17 (1) (a), 18 (2) (a) and 19 (3) (a) (i) included references to

subsection 0) (a) and with any other necessary adaptations.

( b ) Subsection (2) of section 29 shall apply to the interests specified in subsection (1) (a)

and to a person who holds the office of Attorney General as if the references in that

subsection to sections 17 (1) (a), 18 (2) (a) and 19 (3) (a) 0) included references to

subsection 0) (a) and with any other necessary adaptations.

(3) References in this section to the performance ofa function of the office of Attorney General

are references to the performance of the function by the holder of that office personally or by another

person in pursuance of a direction gi\'en to the person, in relation to the particular matter concerned,

by such holder personally or a person acting on behalf of and with the personal knowledge of such

holder.

(4) Where a person who holds the office of Attorney General is a member-

( a) paragraph (a) of subsection (1) shall not apply to the person as respects the interests,

during the period of the person's membership, of the persons specified in that

paragraph, and

( b ) paragraph (b) of that subsection shall not apply to the person during the period of the

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person's membership.

Designated directorships.

17.-(1) A person who holds or held a designated directorship of a public body specified in

suhparagraphs (8) to (2), or standing prescribed under subparagraph (13), of paragraph J of the

First Schedule-

( a ) shall, subject to section 20 (3), in each year during any part of which he or she holds or

held the directorship, prepare and furnish to the Commission and to such officer of the

body as may be determined by the Minister a statement in writing of-

(i) the interests of the person, and

(ii) the interests of which he or she has actual knowledge of his or her spouse or a

child of the person or of his or her spouse,

during the appropriate period specified in section 20 (1) which could materially

influence the person in or in relation to the performance of the functions of the

directorship by reason of the fact that such performance could so affect those interests

as to confer on or withhold from the person or the spouse or child a substantial benefit,

and

( b ) in any case where such a function, or a function of any other office or position held by

the person in that public body, falls to be performed and he or she has actual

knowledge that he or she or a connected person has a material interest in a matter to

which the function relates-

(i) shall, as soon as may be, prepare and furnish to the other directors of the body a

statement in writing of those facts,

(ii) shall not perform the function unless there are compelling reasons requiring him

or her to do so. and

(iii) shall, ifhe or she proposes to perform the function, prepare and furnish to the

other directors of the body and to the Commission, before or, if that is not

reasonably practicable, as soon as may be after such performance, a statement in

writing of the compelling reasons aforesaid.

(2) There shall be deemed to be included in the terms on which a person holds a designated

directorship referred to in subsection 0) a term that the person shall comply with that subsection.

Designated positions of employment.

18.-(1) In this section "relevant authority", in relation to a person ,\'ho occupies or occupied a

designated position in a public body, means such person or persons as may stand determined for the

time being by the Minister in relation to the position.

(2) A person who occupies or occupied a designated position in a public body-

(a) shall, subject to section 20 (3), in each year during any part of which he or she

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occupies or occupied the position, prepare and furnish to the relevant authority for the

position a statement in writing of-

(i) the interests of the person, and

(ii) the interests of which he or she has actual knowledge of his or her spouse or a

child of the person or of his or her spouse,

during the appropriate period specified in section 20 (1) which could materially

influence the person in or in relation to the performance of the functions of the

position by reason of the fact that such performance could so affect those interests as

to confer on or withhold from the person or the spouse or child a substantial benefit,

and

( b ) in any case where such a function falls to be performed and he or she has actual

kno\vledge that he or she or a connected person has a material interest in a matter to

which the function relates-

(i) shall, as soon as may be, prepare and furnish to the relevant authority a statement

in writing of those facts,

(ii) shall not perform the function unless there are compelling reasons requiring him

or her to do so, and

(iii) shall, ifhe or she proposes to perform the function, prepare and furnish to the

relevant authority, before or, if that is not reasonably practicable, as soon as may

be after such performance, a statement in writing of the compelling reasons

aforesaid.

(3) (a) A person who, during any period, holds or held or occupies or occupied an office or

position specified in paragraph (b) shall be deemed for the purposes of this Act to be a

person who, during that period, occupies or occupied a designated position in a public

body.

( b ) The offices and positions referred to in paragraph (a) are­

(i) the office ofComptrolIer and Auditor General,

(ii) the office of Ombudsman,

(iii) the office of Data Protection Commissioner.

(iv) the office of Director of Consumer Affairs. and

(v) such other (if any) offices or positions (other than the office of judge of any court)

established by or under statute as may (if, but only if, the Minister considers it

necessary in the public interest to do so) be prescribed.

( c ) Subsection (.:/) shall not apply to a person who holds or held an office specified in

subparagraphs (i) to (ir) of paragraph (b).

(4) There shall be deemed to be included in the terms of the employment of a person in a

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designated position referred to in subsection (2) a term that the person shal1 comply with that

subsection.

Special advisers.

19.--(1) In this section "special adviser" means a person who-

(a) occupies or occupied an excluded position (within the meaning of the Civil Service

Commissioners Act, 1956), having been selected for appointment to that position by

an office holder personal1y otherwise than by means of a competitive procedure, or

( b ) is or was employed under a contract for services by an office holder, having been

selected for the award of the contract by an office holder personal1y otherwise than by

means of a competitiv.e procedure,

and whose function or principal function as such a person is or was to provide advice or other

assistance to or for the office holder.

(2) The period for which a person acting as a special adviser occupies the excluded position

concerned or is employed under the contract for services concerned shal1 end not later than the date

on which the office holder to whom he or she is acting as a special adviser ceases to hold the office

by reference to which he or she is an office holder.

(3) (a) If the remuneration of a person as a special adviser exceeds a prescribed amount,

then-

(i) subject to section 20 (3), in each year during any part of which the person is a

special adviser, he or she shal1 prepare and furnish to the office holder concerned

and the Commission a statement in writing of-

(I) the interests of the person, and

(II) the interests of which he or she has actual knowledge of his or her spouse

or a child of the person or of his or her spouse,

during the appropriate period specified in section 20 (1) which could material1y

influence the person in or in relation to the performance of his or her functions as

a special adviser by reason of the fact that such performance could so affect those

interests as to confer on or withhold from the person or the spouse or child a

substantial benefit,

(ii) in any case where such a function falls to be performed and he or she has

knowledge that he or she or a connected person has a material interest in a matter

to which the function relates, he or she-

(1) shall, as soon as may be, prepare and furnish to the office holder and to

the Commission a statement in writing of those facts,

(II) shal1 not perform the function unless there are compel1ing reasons

requiring him or her to do so, and

(III) shall, if he or she proposes to perform the function, prepare and furnish to

Irish Statute Book 1922 - 1998 © Irish Government 1999

and

the office holder and the Commission, before or, if that is not reasonably

possible, as soon as may be after such performance, a statement in writing

of the compelling reasons aforesaid,

(iii) the person shall undertake not to engage in any trade, profession, vocation or

other occupation, whether remunerated or otherwise, which might reasonably be

seen to be capable of interfering or being incompatible with the performance by

the person of his or her functions as a special adviser.

( b ) Different amounts may be prescribed under paragraph (a) in relation to different

categories of special adviser.

(4) An office holder shall, in respect of a person who acts or acted as a special adviser to him or

her, lay the following documents before each House of the Oireachtas, that is to say-

( a ) a copy of the contract. or a statement in writing of the terms and conditions, under

which the person acts or acted as a special adviser,

( b ) a copy of any statement under subsection (3) (a) (i) of the interests of the person

furnished to the office holder,

( c ) a statement as to whether the person is a relative of the office holder, and

( d) if subsection (3) applies to the person, a statement of the qualifications of the person

relevant to his or her functions as a special adviser.

(5) Section 13 (3) of the Civil Sel"\'ice Commissioners Act. 1956, does not apply to the

appointment to an established position (within the meaning of that Act) ofa person who acts or has

acted as special adviser.

(6) There shall be deemed to be included in the terms on \\"hich a person who is acting as a

special adviser to an office holder occupies the excluded position concerned or is employed under the

contract for services concerned-

( a ) a term that the period for which the person occupies the excluded position or is

employed under the contract for services shall end not later than the date on which the

office holder ceases to hold the office by reference to which he or she is an office

holder, and

( b ) if subsection (3) applies to the person, a term that he or she shall comply with that

subsection.

Provisions relating to statements under sections 17 to 19.

20.--(1) A statement ("the current statement") furnished by a person under section 17 (1) (a), 18 (2) (a) or 19 (3) (a) (i) shall-

( a ) in case, as may be appropriate, the person was appointed to the directorship, position

or special adyisership concerned before the date of the passing of this Act and the

statement is the first such statement so furnished by the person since that date, be in

Irish Statute Book 1922 - 1998 © Irish Government 1999

respect of the period from that date to the date of the statement,

( b ) in case the person was so appointed on or after the date of such passing and the

statement is the first such statement so furnished by the person since such

appointment, be in respect of the period from the date of such appointment to the date

of the statement, and

( c ) in any other case, be in respect of the period from the date of the last previous such

statement so furnished by the person to-

(i) the date of the current statement, or

(ii) the date on which the appointment concerned ended,

whichever is the earlier.

(2) A statement under section 17 (1) (a), 18 (2) (a), 19 (3) (a) (i) or 29 (2) shall be made in such

form as, subject to the provisions of this Act, may be determined by the Minister or a form to the like

effect and shall contain appropriate information in relation to such matters (if any) respecting the

interests declared in the statement as may be specified in the first-mentioned form.

(3) The first statement ofa person under section 17 (1) (a), 18 (2) (aJ or 19 (3) (a) (i) after his or

her appointment to the directorship, position or special advisership concerned shall be furnished by

the person to the person or persons concerned not later than-

( a ) such time in the year concerned, or

( b) if the appointment is made after the commencement of the provision aforesaid and

after the I st day of October in any year, such time in the next following year,

as the Minister may determine and any subsequent such statement of the person shall be so furnished

by the person not later than 30 days after the anniversary of the day on which the last previous such

statement \\"as so furnish.ed by him or her.

(4) It shall not be necessary to specify in a statement under section 17 (1) (a), 18 (2) (a), 19 (3)

(a) (i) or 19 (2) the amount or monetary value of any interest or the remuneration of any trade,

profession, employment. vocation or other occupation included in the statement.

PART V THE COMMISSIO~

Establishment, membership and functions of Commission.

21.--{1) On the commencement of this section, there shall stand established a commission (which

shall be known as the Public Offices Commission and is referred to in this Act as "the Commission")

to perform the functions conferred on it by this Act.

(2) The Commission shall consist of the following members:

( a ) the Comptroller and Auditor General,

( b ) the Ombudsman,

( c) the Chairman ofDail Eireann,

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( d ) the Clerk of D:iil Eireann,

( e ) the Clerk of Seanad Eireann.

(3) (a) Subject to paragraph (b), \vhere a member of the Commission notifies the Minister

that he or she is for any reason (other than the operation of subsection (4)) temporarily

unable to act as such member or any of the officcs aforesaid is vacant, the Minister

shall appoint-

(i) in the case of the Comptroller and Auditor General, the Secretary and Director of

Audit of the Office of the Comptroller and Auditor General,

(ii) in the case oftheOnlbudsman, the Director of the Office of the Ombudsman,

(iii) in the case of the Chairman ofDail Eireann, the Deputy Chairman ofDail

Eireann,

(iv) in the case of the Clerk ofDail Eireann, the Clerk Assistant ofDail Eireann, and

(v) in the case of the Clerk of Seanad Eireann, the Clerk Assistant of Seanad Eireann,

to be a member of the Commission for the duration of such inability or vacancy.

( b ) If a person falling, pursuant to paragraph (a), to be appointed to be a member of the

Commission cannot be so appointed or the Commission consider that it would not be

appropriate so to appoint that person, the Minister shalI appoint such other person as

the Commission may nominate for the purpose to be such a member for the duration of

the inability or vacancy concerned.

( c ) Upon the appointment of a person pursuant to paragraph (a) or (b) to be a member of

the Commission for the duration of an inability_ the member of the Commission who is

temporarily unable to act as such member shall be deemed for such 'duration not to be

a member of the Commission.

( d) If a member of the Commission ceases to hold the office by viliue of which he or she

became a member of the Commission, he or she shall thereupon cease to be a member

of the Commission.

(4) (a) The Comptroller and Auditor General and the Secretary and Director of Audit of the

Office of the Comptroller and Auditor General shall not take part in any proceedings

of the Commission relating to the Comptroller and Auditor General or a member of the

staff of the Office of the Comptroller and Auditor General.

( b ) The Ombudsman and the Director of the Office ofthe Ombudsman shall not take part

in any proceedings of the Commission relating to the Ombudsman or a member of the

staff of the Office of the Ombudsman.

( c ) The Chairman of Dail Eireann, the Deputy Chairman of Dail Eireann, the Clerk of

Dail Eireann, the Clerk Assistant of Dail Eireann, the Clerk of Seanad Eireann and the

Clerk Assistant of Seanad Eireann shaH not take part in any proceedings of the

Commission relating to the Chairman or Deputy Chairman of either House or to a

Irish Statute Book 1922 - 1998 © Irish Government 1999

member of the staff of the Houses.

(d) Where a member of the Commission is, by virtue of paragraph (a), (b) or (c) unable to

take part in proceedings of the Commission, subsection (3) shall not apply in relation

to such inability, and the Minister shall appoint such person as he or she may

determine to be a member of the Commission for the purpose of taking part in those

proceedings but for no other purpose and the first-mentioned member shall be deemed,

in relation to those proceedings, not to be a member of the Commission.

(5) The quorum for a meeting of the Commission shall be three or such other number (being not

less than three).as may be determined from time to time by the Commission.

(6) (a) The Commission shall appoint one of its members to be chairman of the Commission

and the member so appointed shall hold the office of chairman for such period as may

be determined by the Commission.

( b ) If the chairman of the Commission ceases during his or her term of office as such

chairman to be a member of the Commission, he or she shall also cease to be the

chairman of the Commission.

(7) At a meeting of the Commission-

( a) the chairman of the Commission shall, if present. be chairman of the meeting,

(b) ifand for so long as the chairman of the Commission is not present or if the office of

chairman is vacant. the members of the Commission who are present shall choose one

of their number to be chairman of the meeting.

(8) A decision at a meeting of the Commission (other than a meeting held for the purposes of an

investigation under section 23) may be that of a majority of the members present and voting on the

question and, in the case of an equal division of votes, the chairman of the meeting shall have a

second or casting vote.

(9) The Commission may act (otherwise than in relation to an investigation under section 23)

notwithstanding one or more vacancies among its members.

(10) Such functions of the Commission (other than functions under section 23) as may be

specified by it may be performed, under the supervision and subject to the general direction of the

Commission, by members of the staff of the Commission duly authorised in that behalf by the

Commission.

(11) Subject to the provisions of this Act, the Commission shall determine, by standing orders or

otherwise, the procedure and business of the Commission.

(12) The Minister shall make available to the Commission such reasonable facilities and

services (including clerical, secretarial and executive services) as the Minister, after consultation with

the Commission, may determine.

(13) Subject to such conditions as the Minister may determine, there shall be paid to the

Commission out of moneys provided by the Oireachtas such amounts as the Minister may, after

consultation with the Commission. determine in respect ofthe reasonable expenses of the

Commission and its members.

Irish Statute Book 1922 - 1998 ~. Irish Government 1999

Complaints to Commission.

22.-( 1) A person (other than a mem ber) who considers that-

( a ) a person may have contravened Parlll, III or IV at a time when he or she was an office

holder, or

( b ) that a person who is an office holder may have contravened Part JJ before becoming

an office holder,

may make a complaint in writing in relation to the matter to the Clerk and, subject to subsection (2),

the Clerk shall refer the matter to the Commission and shall furnish a copy of the complaint to the

Commission.

(2) The Clerk shall consider a complaint under subsection (1) and, if the Clerk is of opinion that

it is frivolous or vexatious, he or she-

( a ) shall not refer it to the Comm ission, and

( b ) shall prepare a statement in writing of the reasons for his or her opinion and furnish it

to-

(i) the person who made the complaint,

(ii) the person concerned, and

(iii) the Commission.

(3) A member who considers that-

( a ) a person may have contravened Part IV,

( b )a person may have contravened Parrll, III or If! at a time when he or she was an office

holder. or

( c ) that a person who is an office holder may have contravened Part JJ before becoming

an office holder,

may make a complaint in writing in relation to the matter to the Commission.

(4) (a) Where the Minister considers that a person, other than an office holder, may have

contravened Part IV. he or she may make a complaint in writing in relation to the

matter to the Commission.

( b )(i) Where a Minister of the Government considers that a person to whom this

subparagraph applies may have contravened Part IV, he or she may, with the

consent ofthe Minister, make a complaint in writing in relation to the matter to

the Commission.

(ii) Subparagraph (i) applies to the following persons:

(I) a person who occupies or occupied a designated position in a Department

of State or office of which the Minister of the Government by whom the

complaint concerned is made has charge,

Irish Statute Book 1922 - 1998 © Irish Government 1999

(II) a person who holds or held a designated directorship of, or occupies or

occupied a designated position in, a public body specified in

subparagraphs (8) to (12) of paragraph 1 of the First Schedule or

standing prescribed for the time being under subparagraph (13) of the

said paragraph 1 in relation to which functions stand conferred on the

Minister of the Government by whom the complaint concerned is made,

and

(III) a person who is or was a special adviser assigned to the Minister of the

Government by whom the complaint concerned is made or to a Minister

of State at the Department of State administered by that Minister of the

Government.

(c) Where a public body specified in subparagraphs (8) to (12) of the said paragraph 1 or

standing prescribed for the time being under subparagraph (13) of the said paragraph

1 considers that a person who-

(i) holds or held a designated directorship of the body, or

(ii) occupies or occupied a designated position in the body,

may have contravened Part IV, it may make a complaint in writing in relation to the

matter to the Commission.

(d) Where the appropriate authority (within the meaning of the Civil Service Regulation

Act, 1956, but excluding a Minister of the Government) in relation to a civil servant

(within the meaning aforesaid) considers that the civil servant may have contravened

Part IV, the authority may make a complaint in writing in relation to the matter to the

Comm ission.

Inyestigations by Commission.

23.--(1) Subjectto subseclion (2), where-

( a) a complaint is referred or made to the Commission under section 22, or

( b ) the Commission considers in the case of-

(i) a person who may have contravened Part 11, III or IV at a time when he or she

was an office holder,

(ii) a person who is an office holder and who may have contravened Part 11 before

becoming an office holder, or

(iii) a person to whom section 22 (4) (b) (i) applies and who may have contravened

Part IV-

that it is appropriate to do so, it shall carry out an investigation to determine, whether,

as may be appropriate-

(I) the person referred to in subparagraph (i) contravened Part 11, III or IV at

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a time when he or she was an office holder,

(II) the person referred to in subparagraph (ii) contravened Part IJ before

becoming an office holder, or :

(III) the person referred to in subparagraph (iii) contravened Part IV.

(2) Before the Commission decides whether to carry out under subsection (J) an investigation of

a matter that-

( a ) relates to a person who holds or held a designated directorship of, or occupies or

occupied a designated position in, a public body, and

( b ) was not the subject of a complaint referred or made to it under section 22,

the Commission shall-

(i) consult with any Minister of the Government on whom a function in relation to

the body stands conferred, and

(ii) give to any such Minister of the Government as aforesaid and to the body a

statement in writing of the reasons why it considers it appropriate that the

investigation should be carried out,

and it shall decide not to carry out the investigation unless, having considered any representations

made to it by that Minister of the GO\'ernment or the body, it is satisfied that it is appropriate to carry

it out and that an adequate investigation cannot or will not be carried out by or on behalf of that

Minister of the Government or the body or any other authority.

(3) Where the Commission, either during or at the conclusion of an investigation under this

section, becomes of opinion that the person the subject of the investigation has not contravened the

provision of this Act to which the investigation relates but may have contravened another provision

of Part IJ. III or IV, it may carry out an investigation under this section to determine whether the

person has contravened that other pro\'ision, but subsection (2) shall not apply in relation to the

investigation.

Reports by Commission.

24.-( 1) Subject to subsection (2) and section 3 J, where the Commission carries out an investigation

under section 23, it shall prepare a repOIi in writing of the result of the investigation and shalI furnish

a copy of the repOIi to-

e a ) the person the subject of the investigation,

( b ) if the investigation followed a complaint under section 22, the person who made the

complaint, and

( c ) (i) in case the person the subject of the investigation is or was an office holder and

the Commission has determined that he or she has contravened Part IJ, IIJ or IV,

the Committee. and

(ii) in any other case-

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(I) the Minister, or

(II) if, at the time of the alleged contravention concerned, the person occupied

a position in a Department of State or office administered by a Minister

of the Government other than the Minister, that Minister of the

Government.

(2) Where the Commission, either during or at the conclusion of an investigation under section

23, is of opinion that the person the subject of the investigation may have committed an offence

relating to the performance of his or her functions as an office holder, a holder of a designated

dire~torship of, or occupier of a designated position in, a public body or special adviser, as the case

may be or that the person may have cOI)travened Part II before becoming an office holder-

( a ) it shall prepare a report in writing in relation to the matter and furnish it together with

any relevant document or other thing in its possession to the Director of Public

Prosecutions who shall notify the Commission as to whether he or she has taken

proceedings for an offence in respect of any matter mentioned in the report or has

decided not to take any such proceedings and of the final outcome of any such

proceedings (including any appeal, whether by way of case stated or otherwise,

rehearing or retrial), and

( b ) it shall add to its repOli under subsection (1) a copy of its report under paragraph (a)

and a statement of the notification or notifications aforesaid.

(3) A report under subsection (1) shall set out the findings of the Commission together with its

determinations in relation to the following matters, namely-

( a ) whether there has been a contravention of Par! 11. III or IV by the person concerned

and whether the contravention is continuing,

( b ) in case the determination is that there has not been a contravention of Part 11,111 or IV,

by the person, whether the Commission is of opinion that the complaint was frivolous

or vexatious or that there were no reasonable grounds for it, and

( c ) in case the determination is that there has been a contravention of Par! ll, III or IV by

the person-

(i) if the determ ination is that the contravention is continuing, the steps required to

be taken by him or her to secure compliance by him or her with Part ll, III or IV,

as the case may be, and the period oftime within which such steps should be

taken,

(ii) whether the contravention was committed inadvertently, negligently, recklessly or

intentionally,

(iii) whether the contravention was, in all the circumstances, a serious or a minor

matter, and

(i\') whether the person acted in good faith and in the belief that his or her action was

in accordance with guidelines published or advice given in writing by a

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Committee under section 12 or the Commission under section 25,

and may refer to such other matters (if any) as the Commission considers appropriate.

(4) Where at any time a repOli under subsection (1) is furnished to a Committee, the Committee

shall cause a copy of the report to be laid before the House concerned.

(5) Where a report under subsection (1) is furnished to a Minister of the Government and the

repOli includes determinations that there has been a contravention of Part IV and that the

contravention was a serious matter, he or she shall cause a copy of the report to be laid before each

House.

(6) Where the Commission-

( a) adjourns or postpones proceedings in relation to an investigation under section 23, or

( b ) during such an investigation, furnishes a repoIi to the Director of Public Prosecutions

under subsection (2) (a) and the Director of Public Prosecutions notifies the

Commission under subsection (2) (a) that he or she has taken proceedings for an

offence in respect of a matter mentioned in the repOIi,

the Commission may, if it considers it appropriate to do so, prepare an interim report in writing in

relation to the investigation and furnish copies thereof to such of the persons specified in subsection

(1) as it thinks fit.

Guidelines and advice from Commission.

25.-(1) The Commission-

( a ) shall, after consultation \\-ith the Committees, from time to time draw up and publish

to persons (other than members who are not office holders) to whom a provision of

Part ll, III or IV applies guidelines concerning the steps to be taken.by such persons to

ensure compliance by them with this Act generally and, in particular, with the

proyisions of those Pans. and

( b ) may, at the request of a person (other than a member who is not an office holder) to

whom a provision of Part 11, III or IV applies, give advice to the person in relation to

any provision of this Act or as to the application. in any particular case, of any such

prOVIsion.

(2) When a request is made under subsection (1) (b) in relation to a particular case, the provision

concerned of Part 11, III or IV shall not. as respects the person who made the request, apply in

relation to that case during the period from the making of the request to the time when advice is

given by the Commission in relation to the case or it declines to give such advice.

(3) The Commission shall, within 21 days of the receipt by it of a request for advice under

subsection (1) (b), furnish the advice to the person concerned or notify him or her of its decision to

decline to do so.

(4) A person shall act in accordance with guidelines or advice published or given to the person

under this section unless. by so doing, the act concerned would constitute a contravention of another

provision of this Act.

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Award of costs by Commission.

26.-(1) (a) Where, following an investigation by the Commission under section 23 of a

complaint referred or made to it under sectio17 22 (other than subsection (4)), the

Commission determines that the complaint was frivolous or vexatious or that

there has not been a contravention of Part 1l, III or IV and that there were no

reasonable grounds for the complaint, it may order that such amounts (not

exceeding £ 1,500) as it considers appropriate, having regard to all the

circumstances, in respect of the reasonable costs and expenses incurred by any

person before it (including costs and expenses incurred by such a person in

respect of legal representation) in relation to the investigation shall be paid to that

person by the persoil who made the complaint.

( b) Where, in relation to an investigation under section 23, amounts are ordered to be

paid under paragraph (a) to more than one person, the aggregate ofthose

amounts shall not exceed £ 1,500.

(2) For the purposes of subsectio17 (1), the Commission may measure the costs and expenses

aforesaid.

(3) Any costs or expenses ordered by the Commission under subsection (1) to be paid by a

person may be recovered from that person by the person to whom they are ordered to be paid as a

simple contract debt in any cOUli of competent jurisdiction.

Annual and special repOJis by Commission.

27.-(1) The Commission-

( a ) shall, not later than 6 months after the end of each year, prepare a repOIi on its

activities in that year. and

( b ) may prepare such other reports for the Minister as it considers appropriate.

(2) (a) The Commission shall furnish a copy of a report under subsection (1) (a) to the

Minister not later than 6 months after the end of the year to which it relates and the

Minister shall, not later than two months after the receipt of the report, cause a copy

thereof to be laid before each House.

(b) The Minister may, ifhe or she considers it appropriate to do so, cause a copy ofa

report under subsection (1) (b) to be laid before each House.

(3) In this section "report" does not include a report under section 24.

PART VI MISCELLANEOUS

Action by Houses \vhere reports laid before them.

28.-(1) Where a copy of a repOIi of a Committee or a copy of a report of the Commission furnished

to a Committee is laid before either House, the Committee may, if it considers it appropriate, having

Irish Statute Book 1922 - 1998 © Irish Government 1999

regard to all the circumstances of the case, to do so, cause a motion to be moved in that House for a

resolution that such action or actions specified in subsection (2) as may be specified in the resolution

and is or are reasonable in all the circumstances be taken by that House in relation to the matter.

(2) The actions referred to in subsection (1) are-

( a ) the taking note by the House concerned of the report of the Committee, or the report of

the Comm ission, concerned,

( b ) the censuring of the office holder or other member concerned by the House,

( c ) the suspension of the office holder or other member concerned from the service of the

House-

(i) for such period not-exceeding 30 days on which the House shall have sat as may

be specified in the resolution concerned, and

(ii) in addition, if the report aforesaid includes a determination that the office holder

or other member is continuing to contravene this Act and the Committee is

satisfied that the contravention has continued up to the date of the motion for the

resolution concerned under subsection (1), until such time (if any) after the

expiration of the period specified pursuant to subparagraph (i) in the resolution

as he or she takes the steps specified in the resolution (being the steps specified in

the report) to secure compliance by him or her with this Act.

(3) \\There a repOIt referred to in subsection (1), a copy of which has been laid before either

House, includes a determination that the office holder or other member concerned acted in good faith

and in the belief that his or her action was in accordance with guidelines published or advice given in

writing under section 12 or, as the case may be, section 25, a Committee shall not recommend that

the action specified in paragraph (b) or (c) of subsection (2) be taken by the Hous~.

(4) The action referred to in subsection (2) (c) shall not affecteither the amount of or the

payment of any allowance or annual or other sum to which the office holder or other member

concerned would, but for such action, be entitled under the Oireachtas (Allowances to Members) Act,

1938, PaIt III of the Ministerial and Parliamentary Offices Act, 1938, or section 3 of the Oireachtas

(Allowances to Members) and Ministerial and Parliamentary Offices (Amendment) Act, 1992.

Statements of interests outside periods specified in sections 5. 13 and 20.

29.--{1) (a )Where the registrable interests or the additional interests ofa person change, the person

may at any time furnish a statement in writing of the changes to the Clerk.

( b) Where a person fails to comply with section 5 or 13, the person may at any time

furnish to the Clerk a statement in writing of the registrable interest or additional

interest concerned.

( c) \\There a person is advised under section 12 or 25 or it appears from guidelines

published under either of those sections that an interest of the person is a

registrable interest or an additional interest. the person shall, as soon as may be

after the receipt of the advice or, as the case may be, the publication of the

Irish Statute Book 1922 - 1998 © Irish Government 1999

guidelines, prepare and furnish to the Clerk a statement in writing of the

additional interest or registrable interest.

( d) Where a person becomes a member or an office holder after a registration date, he

may, at any time before the next registration date, furnish to the Clerk a statement

in writing of his or her registrable interests and, (in the case of an office holder)

his or her additional interests.

( e) When the Clerk receives a statement under paragraph (a), (b), (c) or (e), he or she

shall if it relates to an additional interest, furnish a copy of it to the Commission

and (if it is a statement of a Minister of the Government or a Minister of State)

the Taoiseach.

(2) (a) Where the interests specified in section 170) (a), 18 (2) (a) or 19 (3) (a) (i) of a

person to whom that section applies or of the spouse of such a person or ofa child

either of such a person or of the spouse of such a person change the person may at

any time furnish a statement in writing of the change to the person or persons to

whom statements under that provision are required to be furnished.

( b) Where a person fails to comply with sec/ion 17 (1) (a), 18 (2) (a) or 19 (3) (a) (i),

the person may at any time furnish a statement in writing of the interests

concerned to the person or persons to whom statements under that provision are

required to be furnished.

(c) Where a person to whom section 17 (1) (a). 18 (2) (a) or 19 (3) (a) (i) applies is

advised under section 25 or it appears from guidelines published under section 25

that an interest of the person or an interest of his or her spouse or a child of the

person or of his or her spouse is an interest to which section 17 (1) (a), 18 (2) (a)

or 19 (3) (a) (i). as the case may be, applies. the person shall, as soon as may be

after the receipt of the advice or, as the case may be, the publication of the

guidelines, prepare and furnish to the person or persons to whom statements

under that provision are required to be furnished a statement of the interest.

(3) A statement under this section (other than a statement indicating the cesser or disposal of an

interest) shall be in a form determined under section 5 (1),130) or 20 (2), as may be appropriate, or

in a form to the like effect and shall contain appropriate information in relation to such matters (if

any) respecting the interest concerned as may be specified in the appropriate form determined as

aforesaid.

(4) Section 6 (4) (b) and subseCTion (3) sha11 apply to a statement of a registrable interest

furnished to a Clerk in pursuance of a determination of a Comm ittee or the Commission under

section 10 (2) (c) or 24 (3) (c) and subsection (1) (e) and subseclion (3) shall apply to a statement of

an additional interest furnished to a Clerk in pursuance ofa determination of the Commission under

section 24 (3) (c).

Voluntary statements.

30.-Where a person to whom seclion 5,13,16,17,18 or 19 applies has an interest that is not

Irish Statute Book 1922 - 1998 © Irish Government 1999

specified in the Second Schedule or a person to whom section 13, 16, 17, 18 or 19 applies has actual

knowledge that his or her spouse or a child of the person or of his or her spouse has such an interest,

the person may at any time prepare a statement under that section of the interest and furnish it to the

person or persons to whom such a statement is required by the section to be furnished and, where

such a statement is so furnished, this Act shall apply and have effect as if the interest was an interest

specified in that Schedule.

Discontinuance of investigations.

31.--(1) A Committee may at any time discontinue an investigation under section 9 of a complaint

referred or made to it under section 8 if it becomes of opinion that the complaint concerned is

frivolous or vexatious.

(2) The Commission may at any time discontinue an investigation under section 23 of a

complaint referred or made to it under section 22 (other than subsection (4) thereof) if it becomes of

opinion that the complaint concerned is frivolous or vexatious.

(3) If a Committee decides to discontinue an investigation under section 9, or the Commission

decides to discontinue an investigation under section 23, it shall prepare and furnish to-

( a ) the person who made the complaint concerned, and

( b ) the person to whom it related,

a statement in writing of the reasons for its decision and, in the case of such a decision by a

Committee, it shall, in addition, prepare and furnish such a statement to the Clerk.

(4) Section 11 shall apply with any necessary modifications in relation to a case where an

investigation is discontinued under subsection (1) and section 26 shall apply with any necessary

modifications in relation to a case \vhere an investigation is discontinued under subsection (2).

Pcnvers of Committees and Commission.

32.--{l) A Committee and the Commission shall hold sittings for the purpose of an investigation by

it under this Act and at the sittings may receive submissions and such evidence as it thinks fit.

(2) The chairman of a Committee may for the purposes of the functions of the Committee and

the chairman of the Commission may for the purposes of the functions of the Commission-

( a) direct in writing the person the subject of the investigation concerned to attend before

the Committee or the Commission, as the case may be, on a date and at a time and

place specified in the direction,

( b ) direct in writing any other person whose evidence is required by the Committee or the

Commission, as the case may be, to attend before the Committee or the Commission,

as the case may be, on a date and at a time and place specified in the direction and

there to give evidence and to produce any document or thing in his or her possession

or power specified in the direction,

(c) direct any person (other than a person referred to in paragraph (a) in attendance

before the Committee or the Commission, as the case may be, to produce to the

Commission or the Committee, as the case may be, any document or thing in his or her

Irish Statute Book 1922 - 1998 © Irish Government 1999

possession or power specified in the direction,

( d ) direct in writing any person (other than a person referred to in paragraph (a)) to send

to the Committee or the Commission, as the case may be, any document or tl1ing in his

or her possession or power specified in the direction, and

( e ) give any other directions for the purpose of the proceedings concerned that appear to

him or her to be reasonable and just.

(3) The reasonable expenses of witnesses directed under subsection (2) (b) to attend before a

Committee or the Commission shall, subject to sections II and 26, be paid out of moneys provided

by the Oireachtas.

(4) A person who-

( a ) having been directed under subsection (2) to attend before a Committee or the

Commission and, in the case ofa person so directed under paragraph (b) of that

subsection, having had tendered to him or her any sum in respect of the expenses of

his or her attendance which a witness summoned to attend before the High Court

would be entitled to have tendered to him or her. without just cause or excuse disobeys

the direction,

( b ) being in attendance before a Committee or the Commission pursuant to a direction

under the said paragraph (b), refuses to take the oath on being required by the

Committee or the Commission, as the case may be, to do so or refuses to answer any

question to which the Committee or the Commission, as the case may be, may legally

require an answer or to produce any document or thing in his or her possession or

power legally required by the Committee or the Commission, as the case may be, to be

produced by the person,

( c ) fails or refuses to send to the Committee or the Commission, as the case may be, any

document or thing legally required by the Committee or the Commission, as the case

may be, under paragraph (d) of subsection (2) to be sent to it by the person or without

just cause or excuse disobeys a direction under paragraph (d) of subsection (2), or

( d) does any other thing in relation to the proceedings before the Committee or the

Commission, as the case may be, which, if done in relation to proceedings before a

court by a witness in the court, would be contempt of that court,

shall be guilty of an offence.

(5) If a person gives false evidence before a Committee or the Commission in such

circumstances that, if he or she had given the evidence before a court, he or she would be guilty of

perjury, he or she shall be guilty of that offence.

(6) The procedure of a Committee or the Commission in relation to an investigation by it under

this Act shall, subject to the provisions of this Act, be such as shall be determined by the Committee

or the Commission, as the case may be, and the Committee or the Commission, as the case may be,

shall, without prejudice to the generality of the foregoing, make provision for-

( a ) notifying the complainant, in the case of a complaint under section 8 or 22, and

Irish Statute Book 1922 - 1998 © Irish Government 1999

notifying the person the subject of the investigation of the date, time and place of the

relevant sitting ofthe Committee or the Commission, as the case may be,

( b ) giving the person the sU,bject of the investigation a statement of the contravention of

this Act alleged, the names of the witnesses whom it is proposed to call to give

evidence before the Committee or the Commission, as the case may be, relating to

such contravention, a copy of each statement intended to be used at the Committee or

the Commission, as the case may be, and an indication in writing of the nature and

source of any information relating to the matter which has come to notice in the course

of the investigation of the alleged contravention which may be favourable to the

person aforesaid and of which he or she may be unaware,

( c ) enabling the person the subject of the investigation and, in the case of a complaint, the

complainant or a person representing the complainant to be present at the relevant

sitting of the Committee or the Commission, as the case may be, and enabling the

person the subject of the investigation to present his or her case to the Committee or

the Commission, as the case may be, in person or through a legal or other

representative,

( d ) enabling written statements to be admissible as evidence by the Committee or the

Commission, as the case may be, with the consent of the person the subject of the

investigation,

( e ) enabling any signature appearing on a document produced before the Committee or the

Commission, as the case may be, to be taken, in the absence of evidence to the

contrary, to be that of the person whose signature it purports to be,

(f) the examination by or on behalf of the Committee or the Commission, as the case may

be, and the cross-examination by or on behalf of the person the subject of the

investigation concerned (on oath or otherwise as it may determine) of witnesses before

the Committee or the Commission, as the case may be, called by it,

(g) the examination by or on behalf of the person the subject of the investigation and the

cross-examination by or on behalf of the Committee or the Commission, as the case

may be (on oath or otherwise as the Committee or the Commission, as the case may

be, may determ ine), of \\'itnesses before the Comm ittee or the C0111m ission, as the case

may be. called by the person the subject of the investigation,

( h ) the determination by the Committee or the Commission, as the case may be, whether

evidence at the Committee or the Commission, as the case may be, should be given on

oath,

( i) the administration by the chairman of the Committee or the chairman of the

Commission, as the case may be, of the oath to witnesses before the Committee or the

Commission, as the case may be, and

(j) the making of a sufficient record of the proceedings of the Committee or the

Commission, as the case may be.

Irish Statute Book 1922 - 1998 © Irish Government 1999

(7) A decision of a Committee or the Commission in relation to an investigation by it under this

Act or any question arising in the course of such an investigation may be that of a majority of its

members.

(8) A witness whose evidence has been, is being or is to be given before the Committee or the

Commission, as the case may be, in proceedings under this Act shall be entitled to the same

privileges and immunities as a witness in a court.

(9) Sittings of a Committee or the Commission for the purposes of an investigation by it under

this Act may be held in private.

(10) A Committee or the Commission may adjourn or postpone proceedings in relation to an

investigation under section 9 or 23, as the case may be.

(11) The following shall be abso'lutely privileged:

( a ) documents of the Commission, and documents of its members connected with the

Commission or its functions, wherever published,

( b ) repOlts of the Commission, wherever published,

( c) statements made in any form at meetings or sittings of the Commission by its members

or officials and such statements \vherever published subsequently.

Independence of Commission.

33.-The Commission and its members shall be independent in the performance of their functions

under this Act.

Retention of statements and matters conceming legal or medical services.

34.-(1) A statement furnished under section 13, 14, 16, 17, 1fl.19 or 29 and a record of any

information given to the Secretary to the Government pursuant to section 15 or guidelines under that

section shall be retained for a period of 15 years from the date on which it was so furnished or given

and, whenever so requested by the Commission during that period. it or a copy of it shall be

furnished to the Commission.

(2) Notwithstanding anything in this Act a statement prepared and furnished by a person

pursuant to section 5,13.16.17.18,19 or 29 of an interest specified in paragraph I (5) (b) of the

Second Schedule and relating to legal services or medical services (including psychiatric or

psychological services) shall specify only that legal services or medical services, as the case may be,

were supplied to the person or to another person (who shall not be identified in the statement) as

respects whom the first-mentioned person is required by the section to furnish a statement; and the

form of the statement detem1ined under this Act shall be such as to facilitate compliance with the

foregoing provision.

Prohibition of disclosure of information.

35.-(1) A person shalI not disclose information obtained by him or her under this Act or by being

present at a sitting of a Committee or Commission held in private. $~ . .,,;t ..

(2) Subsection (1) does not apply to-

Irish Statute Book 1922 - 1998 © Irish Government 1999

( a) the disclosure of information in the public interest by a Minister of the Government,

( b ) the disclosure of information contained in-

(i) a statement under section 13 or 14 (1) or a statement under section 29 (2) in

relation to an interest specified in section 13,

(ii) a statement under section 17 or 18 or a statement under section 29 (2) in relation

to an interest specified in section 17 or 18, or

(iii) a statement under section 19 or a statement under section 29 (2) in relation to an

interest specified in section 19,

by a person to whom the statement is furnished under this Act (lithe first-mentioned

person ") to--

(1) in the case of a statement referred to in subparagraph (i), such Minister

of the Government,

(II) in the case of a statement referred to in subparagraph (ii), such directors

of, or persons occupying positions of employment in, the public body

concerned, and

(III) in the case of a statement referred to in subparagraph (iii), such persons,

as the first mentioned person considers appropriate in a case where that person is of

opinion that the information is such as to show that there may exist a conflict between

an interest specified in the statement, or an undisclosed interest, of the person by

whom the statement is furnished as aforesaid and the public interest,

( c ) the disclosure of information by a person-

(i) in the performance of his or her functions, or

(ii) in the public interest, to a Minister of the Government, the Secretary to the

Government, a Committee, the Commission or a person standing determined for

the time being under section 18 as a relevant authority, or

(iii) pursuant to an order of a court for the purpose of proceedings in that court,

or

( d ) the disclosure. by or with the consent of the person to whom the information relates, of

information contained in a report of a Committee under section 10 or the Commission

under section 24 that has not been laid before either House.

(3) A person who contravenes subsection (1) shall be guilty ?f an offence.

Obligation to comply with determinations of Committees and Commission.

36.-Where a report of a Committee under section 10 or a report of the Commission under section

24 includes a determination that specified steps be taken by a person to secure compliance by the

person with this Act, the person shall take those steps within the period specified therefor in the

Irish Statute Book 1922 - 1998 © Irish Government 1999

report.

Provisions in relation to offences.

37.-(1) A person guilty of an offence under this Act shall be liable-

( a ) on summary conviction, to a fine not exceeding £ 1,000 or to imprisollment for a term not exceeding 6 months or to both, or

( b ) on conviction on indictment, to a fine not exceeding £20,000 or to imprisonment for a

term not exceeding 3 years or to both.

(2) Where an offence under this Act is committed by a body corporate and is proved to have

been so committed with the consent or connivance of or to be attributable to any neglect on the part

of any person, being a director, manager, secretary or other officer of the body corporate, or a person

who was purporting to act in any such capacity, that person, as well as the body corporate, shall be

guilty of an offence and shall be liable to be proceeded against and punished as ifhe or she were

guilty of the first-mentioned offence.

Amendment of Prevention of Corruption Acts, 1889 to 1916.

38.-The Prevention of Corruption Acts, 1889 to 1916, shall be amended as follows:

( a) in the Public Bodies Corrupt Practices Act, 1889-

(i) in section 1-

(1) by the substitution for "any member, officer or servant of', in each place

where it occurs in subsection (1) and (2), of "an office holder or his or her

special adviser or a director of, or occupier of a position of employment

in,", and

(II) the substitution for "public body", where it secondly occurs in subsection

(1) and (2), of "office holder or public body",

and

(ii) in section 2, by the substitution of the following paragraph for paragraph (a):

"( a) (i) if the conviction is a summary conviction, be liable to a fine not

exceeding £ 1 ,000 or to imprisonment for a term not exceeding 12 months

or to both, or

(ii) if the conviction is on indictment, be liable to a fine not exceeding

£50,000 or to imprisonment for a term not exceeding 7 years or to both,

and paragraphs (b)to (e) of this subsection shall apply only if the conviction is

on indictment: and",

and

(iii) in section 7, by the substitution of the following definitions for the definitions of

"public body" and "public office";

Irish Statute Book 1922 - 1998 © Irish Government 1999

'''public office' means any office or employment of a person as an office

holder or special adviser or as a director of, or occupier of a position of

employment in, a public body;

'director', 'office holder', 'public body' and 'special adviser' have the

meanings assigned to them by the Ethics in Public Office Act, J 995:",

( b ) in section 1 of the Prevention of Corruption Act, 1906-

(i) in subsection (I), by the substitution for the words from "and shall be liable" to

the end of the subsection, of "and shall be liable-

(I) on summary conviction, to a fine not exceeding £ 1,000 or to

imprisonment for a term not exceeding 12 months or to both, or

(II) on conviction on indictment, to a fine not exceeding £50,000 or to

imprisonment for a term not exceed ing 7 years or to both. ",

and

(ii) by the substitution of the following subsection for subsection (3):

and

"(3) In this Act 'agent' also includes an office holder or a director (within the

meaning, in each case, of the Public Bodies Corrupt Practices Act, 1889, as

amended) of, and a person occupying a position of employment in, a public

body (within the meaning aforesaid) and a special adviser (within the meaning

aforesaid). ",

( c ) in the Prevention of Corruption Act, 1916-

(i) by the deletion of section 1,

(ii) by the substitution of the following section for section 2:

"2.-Where in any proceedings against a person for an offence under the

Prevention of Corruption Act, 1906, as amended, or the Public Bodies Corrupt

Practices Act, 1889, as amended, it is proved that any money, gift or other

consideration has been paid or given to or received by an office holder or

special adviser or a director of, or occupier of a position of employment in, a

public body by or from a person or agent of a person holding or seeking to

obtain a contract from a Minister of the Government or a public body, the

money, gift or consideration shaH be deemed to have been paid or given and

received corruptly as such inducement or reward as is mentioned in such Act

unless the contrary is proved.", and

(iii) in section 4, by the substitution of the following subsection for subsections (2)

and (3):

"(2) In this Act 'director', 'office holder', 'special adviser' and 'public body' have

Irish Statute Book 1922 - 1998 © Irish Government 1999

the meanings assigned to them by the Public Bodies Corrupt Practices Act,

1889, as amended, and 'agent' and 'consideration' have the meanings assigned to

them by the Prevention of Corruption Act, 1906, as amended. ",

and the said section 1, as amended by this section, of the Public Bodies Corrupt Practices Act, 1889,

is set out in the Table to this section.

TABLE

I. (I) Every person who shall by himself or by or in conjunction with any other person, corruptly solicit

or receive, or agree to receive, for himself, or for any other person, any gift, loan, fee, reward, or advantage

whatever as an inducement to, or reward for, or otherwise on account of an office holder or his or her special

adviser or a director of, or occupier of a position of employment in, a public body as in this Act defined, doing

or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which the

said office holder or public body is concerned, shall be guilty of a misdemeanour.

(2) Every person who shall by himself or by or in conjunction with any other person corruptly give,

promise, or offer any gift, loan, fee, re\\·ard. or advantage whatsoever to any person, whether for the benefit of

that person or of another person, as an inducement to or reward for or otherwise on account of an office older or

his or her special adviser or a director of. or occupier of a position of employment in, any public body as in this

Act defined, doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or

proposed, in which such office holder or public body as aforesaid is concerned, shall be guilty of a

misdemeanour.

Section 2.

FIRST SCHEDULE

PUBLIC BODIES

1. Each of the following shall be a public body for the purposes of this Act:

(1) a Department of State (including, as respects any particular Department of State, any office

or body not otherwise standing specified in or under this Schedule in relation to which functions are

vested in the Minister of the Government having charge of that Department of State),

(2) the Office of the President,

(3) the Office of the Timaiste.

(4) the Office of the Attorney General,

(S) the Office of the Comptroller and Auditor General,

(6) the Office of the Ombudsman,

(7) the Office of the Houses of the Oireachtas,

(8) a local authority (within the meaning of the Local Government Act, 1941),

(9) a health board,

(10) a body, organisation or group established-

( a) by or under any enactment (other than the Companies Acts, 1963 to 1990), or

( b ) under the Companies Acts, 1963 to 1990, in pursuance of powers conferred by or

under another enactment. and financed wholly or partly by means of moneys provided,

Irish Statute Book 1922 - 1998 © Irish Government 1999

or loans made or guaranteed, by a Minister of the Government or the issue of shares

held by or on behalf of a Minister of the Government,

(11) a company (within the meaning of the Companies Act. 1963) a majority of the shares in

which are held by or on behalf of a Minister of the Government.

(12) any other body, organisation or group appointed by the Government or a Minister of the

Government, (13) any other body, organisation or group financed wholly or partly out of moneys provided by

the Oireachtas that stands prescribed for the time being (being a body, organisation or group that, in

the opinion of the Minister, ought, in the public interest and having regard to the provisions and spirit

of this Act, to be prescribed).

2. (1) In paragraph I "Office", in relation to a person, means the offices in which the

administration and business relating to the functions of the person are carried on.

(2) There shall be deemed to be included in subparagraphs (8) to (I2) of paragraph I any

subsidiary (within the meaning of the Companies Act, 1963) of a public body specified in those

subparagraphs.

Section 2.

SECOND SCHEDULE

REGISTRABLE INTERESTS

1. Each of the following interests shall be a registrable interest for the purposes of this Act:

(1) a remunerated trade, profession, employment, vocation or other occupation of the person

concerned (other than that of office holder or member or an occupation to which Part IV applies) at

any time during the appropriate period, in relation to that person, specified in section 5 (1) or 20 the

remuneration from which to the person concerned during that period exceeded £2.000,

(2) a holding by the person concerned of shares in, or bonds or debentures of, or other like

investments in, a particular company or other enterprise or undertaking if the aggregate value of the

holding exceeded £ 10,000 at any time during the appropriate period aforesaid,

(3) a directorship or shadow directorship of any company held by the person concerned at any

time during the appropriate period aforesaid,

(4) any interest in land ofthe person concerned, being an interest the value of which exceeded

£ 10,000 at any time during the appropriate period aforesaid, including-

( a ) the interest of the person in any contract entered into by him or her for the purchase of

land, whether or not a deposit or part payment has been made under the contract, and

( b ) the interest of the person in-

(i) any option held by him or her to purchase land, whether or not any consideration

has been paid in respect thereof, or

(ii) land in respect of which such an option has been exercised by the person but

wh ich has not yet been conveyed to the person,

Irish Statute Book 1922 - 1998 © Irish Government 1999

but excluding any interest in land consisting of any private home of the person or of his or her

spouse, that is to say, a building or part of a building that is occupied by the person or his or her

spouse or a child of the person or of the spouse as a separate dwelling and any garden or other land

usually occupied with the dwelling, being land that is subsidiary or ancillary to it, is required for its

amenity or convenience and is not being used or developed primarily for commercial purposes,

(5) (a) a gift given to the person concerned during the appropriate period aforesaid, but

excluding-

(i) a gift given to the person by a relative or friend of the person or of his or her

spouse or of a child of the person or his or her spou?e for purely personal reasons

only, unless the acceptance of the gift by the person could have materially

influenced him or her in the performance of his or her functions as a member,

office holder, Attorney General, holder of a designated directorship, occupier of a

designated position or special adviser, and

(ii) a gift given to the person, or gifts given to the person by the same person, during

the period aforesaid, as respects which the value, or the aggregate value, of the

property the subject of the gift or gifts did not exceed £500 at any time during the

period aforesaid,

( b ) (i) property supplied or lent or a service supplied to the person, once or more than

once by the same person during the period aforesaid, for a consideration or

considerations or at a price or prices less than the commercial consideration or

considerations or the commercial price or prices by more than £500, and

(ii) property lent or a service supplied to the person, once or more than once by the

same person during the period aforesaid, free of charge if the commercial

consideration or considerations or the commercial price or pri~es was or were

more than £500.

other than property supplied or lent or a service supplied to a person by a relative or

friend of the person or of his or her spouse or ofa child of the person or of his or her

spouse where such supply or loan was in the nature of a gift to the person and for

personal reasons only unless the acceptance of the property or loan or the service by

the person could have materially influenced him or her in the performance of his or her

functions as a member, office holder, Attorney General, holder of a designated

directorship, occupier of a designated position, or special adviser,

(6) travel facilities, living accommodation, meals or entertainment supplied during the

appropriate period aforesaid to the person concerned free of charge or at a price that was less than the

commercial price or prices, but excluding-

(a) travel facilities, living accommodation, meals or entertainment provided-

(i) within the State, or

(ii) in the course and for the purpose of-

Irish Statute Book 1922 - 1998 © Irish Government 1999

(I) the performance of the functions of the person as a m em ber, office

holder, holder of a designated directorship, occupier of a designated

position or special adviser, or

(II) the trade, profession, employment, vocation or other occupation (other

than an occupation specified in subclause (I)) of the person,

or

(iii) in the case of a member, by the Inter Parliamentary Union (or such other (if any)

similar bodies as may be specified by the Committee in guidelines published by it

under section 12) or any organisation of states or governments of which the State

or the Government is a member or a body of or associated with any such body or

organisation,

( b ) travel facilities, living accommodation, meals or entertainment supplied to the person

by a relative or friend of the person or of his or her spouse or ofa child of the person

or his or her spouse where such supply was in the nature of a gift given to the person

for personal reasons only, unless the acceptance by the person of such facilities,

accommodation, meals or entertainment might reasonably be seen to have been

capable of influencing him or her in the performance of his or her functions as a

member, office holder, Attorney General, holder of a designated directorship, occupier

of a designated position or special adviser,

( c ) travel facilities, living accommodation, meals or entertainment supplied to the person,

once or more than once by the same person during the period aforesaid, free of charge

if the commercial price, or the aggregate of the commercial prices, of the facilities,

accommodation, meals or enteliainment did not exceed £500, or

( d) travel facilities, living accommodation, meals or enteliainment supplied to the person,

once or more than once by the same person during the period aforesaid, at a price or

prices less than the commercial price or prices by not more than £500.

(7) a remunerated position held by the person concerned as a political or public affairs lobbyist,

consultant or adviser during the appropriate period aforesaid,

(8) any contract to which the person concerned was a party or was in any other way, directly or

indirectly, interested for the supply of goods or services to a Minister of the Government or a public

body during the appropriate period aforesaid if the value of the goods or services supplied during the

period aforesaid exceeded £5,000 or, in case other goods or services \",ere supplied under such a

contract as aforesaid to a Minister of the Government or a publ ic body during the period aforesaid, if

the aggregate of their value and the value aforesaid exceeded £5,000.

2. (1) In paragraph 1 (2), "holding" does not include money in a current, deposit or other similar

account \\"ith a financial institution.

(1) In paragraph 1 (3), "shadow directorship" means the position held by a person who is a

shadow d:rector within the meaning of the Companies Acts, 1963 to 1990, or, in the case of a public

body that is not a company (within the meaning ofthe Companies Act, 1963) and is specified in

Irish Statute Book 1922 - 1998 © Irish Government 1999

f .~

subparagraph (8), (9), (10), (IJ) or (12), or stands prescribed for the purposes of subparagraph (13),

of paragraph J of the Firs! Schedule, the position held by a person in accordance with whose

instructions or directions the members of the body or the members of the board or other body that

controls, manages or administers that body are accustomed to act.

ACTS REFERRED TO

Capital Acquisitions Tax Act, 1976

Civil Service Commissioners Act, 1956

Civil Service Regulation Acts, 1956 and 1958

Companies Acts, 1963 to 1990

Companies Act, 1963

Corporation Tax Act, 1976

Electoral Act, 1992

Local Government Act, 1941

Oireachtas (Allowances to Members) Act, 1938

Oireachtas (Allowances to Members) and Ministerial

and Parliamentary Offices (Amendment) Act, 1992

Public Bodies Corrupt Practices Act, 1889

Prevention of Corruption Act, 1906

Prevention of Corruption Act, 1916

Prevention of Corruption Acts, 1889 to 1916

State Property Act, 1954

1976, No.7

1956, No. 45

1963, No. 33

1976, No.7

1992, No. 23

1941, No. 23

1938, No. 34

1992, No.3

1889,c.69

1906.c.34

1916. c. 64

1954, No. 25

Irish Statute Book 1922 - 1998 © Irish Government 1999

202 Cn. 63, 64. D"jence of the Realm (Acquisition

oj Land) _4.ct, 1916.

become or mi~ht become forfeited or liable to forfeiture, the compensation ~halJ be determined as if 110 such forfeiture or liability to forfeiture had. arisen or might arise.

. 10. The Lord Chancellor may m!l.ke rules fixing a sca.le of costs to applicable on an arbitration under this Act, and the arbitration may, notwir.hstanding anything in the Lands Clauses Acts, de amount of costs, alld shall have power to disallow as costs in the tion the costs of any witness whom thcy cOllsider to have beell' unnece:ssnrily, nnd any other costs which they consider to have l)eeu caused or incurred unnecessarily, and, if they think the circumstances such as to justify them in so doing, to order that each of the parties ehall bear their own co"ts.

11. Tllere may be contained in the nward of the arbitration tribunal a finding that the' claimant, after having heen request.ed in writing by the department by WllOID the land or iuterest therein is to be acquired so to do, has failed to ueliver to such department within a reasonable timi! a statement in writing of the amount claimed, together with any informa_ tion in his posses:<ion which may-be reasonably required to enable such

. depar~mellt to make a proper offer, and, where such a finding is contained in the award, the provisions of rhe Lands Clauses Acts as to costs of arbitra~jons shall apply as if such department had offered the same sum' or a greater. sum than that found to be due by the award:

Proyided tbat this provision shall not a}lply unless the written request for information contaiued a notice of the effect of this provision.

12. The provisions of this .schedule shall apply to Scotland subject to the following modific:nions :_

(a) For the reference to mesne' profits there shall 'be substituted a.' reference to profits:

(&) For the reference to sections se,enty-:se;-en to eighty-fh'e of tle Raih,ays Clauses Consolidation Act, 1845, there shall be sub­stituted a reference to !:>ections se,enty to seventy-eight of the Railways Clauses Consolidation (Scotland) Act, 1845, and for the reference to section seyeDi:y-eight of the former Act there shall be substituted a reference t.o section sevent,-one of laner Act: •

'(c) "Tee Court of Ses!!ion" and" Act of Sederunt ".shal1 be sub­stituted for ., the .Lord Chan.celior" and" rules" respectively.

'13. The pro,isions of this Schedule shall apply to rreland "'ith the . • SUbstitution of a reference to the Lord Chancellor of Irela.nd for the

::eference to. the .Lord Chancellor. p

. ,

CHAPTER 640; .till Act to amend the Law relating to the Prevention. of

. Corruption, .' [22nd De'cembe! 1916.J

'BE it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and ..

Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:" I ".

Prevention oj Con'uption A.ct, 1916. Ca. 64. '203

1. A person convicted on indictment of a misdemeanour Increase of er the Prevention of Corruption ~906, or the Public mlU.il~u:n

Bodies Corrupt Practices Act, 18&Y,S'hall, where the matter or ~:~~i! ~e5. transaction in relation to wb.lcl(the offence "as committed was 6 Etw• 7. . contract or a proposaHOr a contract "ith His :Majesty or any ~2 3&;'53 Vict. }o,reI·IUlo.ellt Depart.tlrent or any public body or a sub-contract c.69.

execute a~rk comprised in such a qontract, be liable penal §,ervitude for a term not exceeding seven nor less ~~~~:' . .

Provided that nothing i rus section shall prevent the LUJ..U" ... ·.V.LL in addition to _ nal servitude of. such punishment

under the abo,e- tioned Acts may be inilicted in addition imprisonment,/6r prevent the infliction in lieu 'of penal

of)l-rly punishment which may be inflicted under the Acts.

2. Where in any proceedings against a person for an offence Presumption the Pre,ention of Oorruption Act, 1906, or the Public ?f corrnption

.JJ<)'cu\:;::> Corrupt Practices Act, 1889, it is proved that any money, ~~~l.D. tJ . • Ct.-d. or other.consideration has been p8:id or.given to or received ~Ku-r-:

a person mthe employm~nt of His MaJesty. or any Gove111- / ~iI...s· '-;" ment Department' or a pubhc body by or from a person, or '"V-"" -~ . Frl~ agent of a person, holding or seeking to obtain acontract from f~''- v~ ffis Majesty or any Go,emment Department or public body, oAc.J::- \,qc.. J

the money, gi.it, or consideration sgaU1?Sl. d~.em_ed to have been. p.!iid_or giv_en and received cornlptlyas such Inducement or reward as is mentioned in such Act unless the contrary is proved.

:. - 3. Notwithstandr;g anything in the Summary Jurisdiction Time fOl

Acts nroceedings under the Prevention of Corruption Act, 1906, t .. kipg pro­insti~ted mth a vie\\" to obtaining a summary conviction for ceemngs.

an offence- thereunder n:lz.y be commenced at any time before the expiration of sis: months after the first disco,err of the offence7 by the prosecutor. •

4.-(1) This Act may be cited as the Prevention of Cor- Sbort titie . nrption Act, 1916, and the 'Public Bodies Oorrupt Practices a,nd interpreta­Act, 1889, the Prevention' of Corruption Act, Hl06, and this Act t10n.

may be cited together as the 'Prevention of Corruption Acts, 1889 to 1916. . . . ,

. (2) In this Act and in the"Public Bodies OorrUpt Practices Act, 1889, the expression" public body '.' includes, in addition

the bodies mentioned in the last-mentioned Act, local and blic authorities of all descriptions. (3) A· person ser,ing under any ~u~,;public ·hody is·.an.

agent within the meaning of .the .Preve!l.ti~n.:-,.0f. Corru:ption')\:Ct, 1906, and the expressions" agent" and·}' cons;deratit>nI'j~J.his Act have the- same m.eaning as in the Pre"'entiOn cii£O'l.:m:zPtiim Act, 1906, as amended by this ·Act.· : .. ~ ':":;:i";; :;<.:;.. .... ; \.':

, ;

! I 96 OE. 33, 34. Local A.utll07·ities (T7'easury POlCerS) A.ct, 1006.

6 Em\. ,.

(-4:) Subsections (1) and (5) of section eighly-Seyen of the ~l ~;. .:2 net. Loc~ll Go,-en:.ment _-ict, 1SSS (-rrhich relates to local inquiries \ c. n. shall apply ior the pm-pose of the carrying out liY the Locd

Goyermnenr Board of any of the pO"\lers tmnsierred to them ~1.!lder this _-\.C~.

5~o~~ title, 2. This ) ... Ct may be cited as the Local _-\.ULho2"i~ies (TreastU·y

~!;e:::s.

?o\iers) _-ict, 1906.

OR..:i.PTER 34. _~ ~ _.:1.ct for the l)etter Pre,-ention of CornlDtion.

[4th _-\.ugl.lst 1906.J

B 1"""1 • cl 1 ' -.. ....,. '1 ""\ - . , 1 .G It enac-;:e' )y me rung s most .t.:xcel ent ..Jla.iest:." Dyane,

"\lith che adyice and. c'on~ent or the L?rds S:pirirual, an(l Tempor:::,l, and, Co~mo;:s" III th1s present Parl!amem asseml)lecl. 2.:lQ bT tlle 2.~ll!102~lt3· or Tlle same, <lS £0110'\\s:

1.-:.,1) r; r:.:J.y ag'ent corruptly accepts or ol)I.ai:1s; or agrees to accept or 2.t"Lempts to obtain, from any person, :fo:' hi~::::el£ OT :for D.i1:' other ~pe:-.son~ an}- gifL 0:: eOllsic1e:·atio}~ 2.S ::.n i~1c1l1cemellt 01' Te"\lard ror doing 0:' io}·be.aring to (10, c·:- .:Ear l'l.a;-iI~g arter me passing or l ~l ~ s -=\.Ct done 01"

iOr;)O:-lle to do, rrny act in I·elation to his principal's a:E~i:-5 or l)llSilless, or for s110rring or Io:rbe;}!"irlg to sho" ia1-0l:J.- or disfa'~\ol1r to G.~Y· P=TSOll ill ~:elatior!. to 11is 1)xinclnal-s ai'fail·s or l)uslness; or - 1£ i"ny person ,corruptly gi,-es or azrees to giye or

.-- -,.. . , .. .. OITe:::-s :my 2."11:t or conSlUe:ranon i:O an, agent as an 111-

dllCe:nel;t or re"ard for doing or forbearing to do, or ior h:l"\ing after the pass;'" g or ills Act done or iorl)orne to do, :lny act in relation to his principal's affairs or l)usiness, or ror sho"\Ting or forbearing to sho"\T Iayom'

j or clisray01U' to any perSO:::l in :relation to his principal's ! afairs or business; or i If :llly person knomngly gi,-es to any agent, or if I any agent kuo"\Tingly uses mth intent to decei,e his l principal, any receipt, account, or othe:· document in

!i l'espect of "\Thicn che principal is interested, and "\Thicn ! comains ani'" statement "\Thich is :false or erroneous or I rleiecti,e i;; any material pall.icular, and "\Thicn to his 1. ! kno"\\ledge is intended to mislead the principal;

I' ; ~~e shall be zuilt, of a misdemeanour, and shall he liable on

J ~ cf \'1J' co:n:Dction 0; indictme~ imprisonm nt, mth or mtbout hard

I. S~' \ DeD ..l; v ~ r labotild' for" a teh:m Jnodt ceedding trr0b~ e:rs, ~r ~o a. :fine no'"

~ \l cY. J("d' e:s:cee 1 g nye 'UllCtre p' n 5, or to OL SUCD. ImprISOnment . f-Jf\.& cPO and sucn "ne, or on SlUTmla conuction to prisonment, mth

·1 \~ t:.O I 6' or "\Titbout Td lal)ollI, lor a ."ill not e:s:ceed1ng rom months,

..

...... : .. ;- .. ---.

e , 1 l ~ : 1 . I I

I t I i ~

I i I

8.: t

expression "collsi-ya}uablc cO!lsideratioll of any ]6n:.1; the includes allY persml employed by or ~ctillg tlle expression "prill(;ipal" 5nclUlles an

_~c..-. ~ Il. ~-v--""HI1Jn;U ~ --(, ~~ ~""1~c..(b

2.-:)) .:i.. proseetl::ioll for un offence tLnde:r this _4.C1 shall not fruse::l:tion of Ov... . . d' h" .., "I " .. O::::L!:!Il~es....-\". ~ be 1rlStltUIe ,\ylt 'out l.!.le COllse::t, 111 I --;:0"''--''-' ;.)~ • .ut:: ':l.LI.vlney-

Ge'''':':!'':'~ :-: . .sv::\..: . .:...:· -::::.:_.~.~L [::.::J in helan:.1 of :Le ",i..ttorney-- 1 s;;'" ~ ,~~, 1 g(J ~CQ rc-v-t ~lr; (3enerD..:...,??:· ;;;.:.::t~:.~: L.~::c:J.~.l .LV;. . t::.L,-dlC.. 1_. ~ C:::::>10. c.. ~£/\..~.

::!) llle "\ exatlG1.:S JndICtments _'i.Ct, 1;::"J0, as m!~e;laed by ::!:'! ,'~ ;;3 Yict. anY sU:)SeCIUen t e;:ac::::nent. s1::::1 8.p,uh- to oi:'ence:; u!}c1er this c. 1; .

., .. ... - .. ,. . -"-'.--- . _4.ct DS l': tIle:, \,-ere l:::lcluaed a::::lOl1g the 'J::::enees :!:;e;l:lOned 1n section O:::le of that _-\Ct.

{3) EYer,- inio::-:~~'jO!l 10::: 2.::~ offenee ~::l·jer t"h~s ..:~Ct s11nll be l1DOll 'O,::Ul. •

(4} Tlle expellees or ~11}- p~c.'5ecl1tiol1 0::1 i~ldjct~!1E-~:: ~::lllel· this A(:t ,,1:211 be defrayed as in C8."e" of jncEc::::1::!lt fm' :: 2~':m:.-.

:.5.1 ..:\. COUlt of cl"um'Lel~ 5e~,5i0~S 511[111 :10'L na'\-e j~:=!~dlcrion to jnclllll'e of: 11enr .. D.lld aete:rDJ.l!:-2 IJrosec"C.tiCl~5 on i1~'..~icln:.e!lts 101· OnEDe-2S 1111c1er t.his .:\.c-t..

_G,! -:1.1Jy perso:'l 2.g~·ieyea. ~'=' a s~::::.J.:2.:~y COl:".-:(:~i011 l1nael· :hi:: .=~c: ~ll[1y o.ppe2.1 1.0 a COTl.::: -:'£ Clua:·:e~ 5essions.

3. TIlls .. Act sl'lC!.ll e:s:telld :~ Sc:otl2.n'~~= ::~i:)jeC:t :0 :.::e :.l;oL1if:'':~L}Oll.s :-

l' Sec!.ie'll t;y.J .s~t!ll llot e:::encl :0 Sc:c,"tL::u c1

"...... . ~C:lJ.O'YI11g

.. 1. III SC'OT.l~l1tl ~ll OrrellC23 \~·hicl1 ~~'e 1,)1~11ish~!}~2 ·t:~lCeJ: tll~5 ~'c~ 0'" '::::'-''''''~''''1~' (''''''''--;''-;011 ",'te.," 1-", U-r .;;;;::..·.--7"(' '0::--7 .... ,·::-__ L :- __ '-:.:.:_ ...... "'" j ....,_' .. \".-w _1o,oo.!.J.. .J .... _.,.1.. ...... __ ·_l.l ...... J.. ...... -. ......... .....

tbe slle:rl:: in rr:a~~t'r p:royided by' ~e Sri.:JJm2.:~ J ll.;:isc.ic:i CJ:l ~ .. ScQtlz.~:2) ,;l.cts.

4:.-(1) TIlls _~C:~ :JJ.a3" be c::ed as the ?:·-='~-e.nLio:! :~: CO:7'"J.Dtion _-\(:1. 1906.

(:?) Th~s ..:-i.et s~2.11 ,come i~to ope::-auoll on ill:: a;:'st day of J 2.n:'.2.:·Y lllneteen .t.c::.nared 2.:l.J. se'\-en.

s=:== C~P~5~, .An _"i.ct to ameIl:d~ l:' L~Ld AcclClents Inqru....-y (;:;cotland)

_-1.ct, lS95, and to make IUl't.ner 'Dl'oYlsio:l io1' Inquiry i::to Sudden rrnd. SUSpi~01:1S Death~ in Scotland.

- ~ [4th ~'lm'-'" 190D"-1 ~ - --'-b\.":::'u .~

BE it enacted by the fu:::lg's most ~1J.ent }Iajesty, by and with me ach-ice and consent or ilie h.ords Snirimru and

Te!:!lp oral , and Co::n.mons, 1:2 Lhis present Par'na..r:ne:l't asseT'" bled: . and. by the autho:ity of the s::l.'ll.e, as iollo'\is:

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-." .

dp!)lici~jon to 5c:,)'~,l::::lc..

~bc!': 'Lhle ~r:d <:c=~c:!ce-­

l::l~!lt.

...... ,'. " ", . .. :. ':.: .. . '.

;i .. ::

"

; . i

}356

\".~ .. -

C3:. G9 .

CH_I\.PTER 69. ;.

~u .2..ct for :ne more effectual Pre\'fmtion and Punishment of Bribery and Corruption of and. by )Iembers, Officers 0::- Ser,\2.!lts of Corporations, Councils, J3oards, ComInis: sions, or oT.ber Public Bodies. [30th August 1889.]

\TTHEREAS it is expedient more effectually to provide for the y, preven-::lOD. and punishment of bribery n.nd corruption of and L>\' I:lem bel's, c-=~er::, or seryants of corporation!;, councils, boards' cO!JJ.:::lissions, a:ld other public bodies : ~

:Be it therefo::-e enacted by the Queen's most Excellent MajestY. L.y a!ld wi:h ,"":le ad,ice ana consent of the Lords Spil-itual and Te::::?oral, an':: Commc.IJ.S, in this present Parliament :l.s:embled, c~:Ju ·;:13" T.ne 2..L::20~ty· of the same, as follo\\·s : ~

.--.~--- ...

3 "'J

.­.. ~: :-j' -,

:.:

~:lSS9. PuUic Bodies Co?-l'1~pt Pmcticcs Act, lS·S9.

CH.69.

E:1ector. cr yotinr: at a.n election either of members to seT\"e in P<lrJja~ent or (.{ members of any public body, and the enact­ments for preyenting the yoting and :-egistration of persons declared by re:lSon of corrupt practict:s to be incapable of .-oting sha.ll ar>ply to a person adjudged. in pursuance of this section to be incapable of yot.ing; arid

Cc) if such :rersGn is an officer or servant in the employ of any public body upon sl1ch com-idion he shall, nt the discretion vi the court, be liable tn forfeit his right and claim to any compensation 0;- pen~ion to which he would otherwise have t.een entitled. '

3.-(1.) ,\Yhere a::l ouence under this _;'c.t is also punishahle S2TIngs. under any other enactment, or at commO!l Jaw, such offence may be prosecuted and punished either unde:- :his Act, or under the other enactment, or at common law, but so :bat no pe:-son shall be punished t,,-ice for the same offence.

(~,) A p~rson sll;l11 not be e::s:empt rroru punishment under this Act [,:-- reason of iheim-ulidity or the app0::l~ment or election of a person to a public office.

4.-( 1.) A pros'2cution for a.u onence 't:.:J.da this Act sball not Restriction 00.

be instituted eXCR7.lt bv or with the co::sent of the .:Uto:-ney proseclltion. General ."

(2.) In t'his section th-, ::,:s:pression :' Att.orney GeDeral" means the. Atiornei~r Solicitor ,~eneral fOl~::Jdand, :md as resnects ~co:la.nd me;ns ~. ~?rd Ad\,,-~c,.'1.t:, a!ld c..~espect-; Ireland ~ea.ns t.he A !'wc·ney ur ::'OllcltOr General 101' lrel~nd':(

5. The e::s:per:ses of the ';)ro2ec.ution of an on",nce against this :£:<:pens:$ of to,,~ "'.'n"ll 'D'" Qi er-""ea1 l'n li1-o-"""'~nnCor ,,- ;.,., -~.o C"'O or a -';:elon"-· D!'oseCUtlon. ~\,..J,.. _.to. (.J.. ..... ..."" G,'_, _4..r-~ ~(l. ..... L ... ~._ .... ....J..... ""~ko' .. . J. .) ..

6. A court of general or q,;urter ses:;}c:s snaIl in England 1-1a.-e J~risaictiOll j'~L:scliction to inouire oI, hea.~ .. and dete:r:::5ne an offence uncle:- th~s O! q;tcter ~ , _. SeSS10:lS.

_'"l.C~.

7. In ihis Act-The e::s:pre~i()n_" pu~~ic bod," mea"'/anv council or a coun~T

or coum.- or a ClL;, or tov.~n, council of a municipal borough: also any b~a:::-a, commissio;e..-s, select vestry, or other b ' .. , . - /' J. ' d" -, .. Day W.tllen nas power w aCIi unae:::- an lOr 't.1e purpose.." OJ.

any Act relating to ~.l government, or the public health, or to pClor law o;r/&'h-e~wise to acminister monev raised bv rates in pursuance of any public general Act~ b~t does n;t include any public bodv as above defined e::s::istinCT' elsewhere -., ;::,

than in the "G'niLa .,-:~~: ~G..c sv-.a t... £i~ ....... " The ex~s~ion" ~ ~ce " mea!'~ny office or employment

of a -re~n~ a memoer,. officer, or ~yant of such public body: ./

The ei:pression "person" includes a booy of persons, corporate or unIDCOl"p0::-ate :

Illte'!l!'e:stioll_

The expression" advan:tage "incluaes any omce or dignity, and any forbearance to demand any money or money's worth or valuable thing, and includes any 8.id, vote, consent, or

·P~t;c. eff;C4" H~ OJ~, OU-.1;'L Qe..- ~.~c.. ~ ~ w- e'J~ v~ or ,~~.fiij~Oe.A o!-c:S6 c.... ~~ q-.~ \r"~ ~ Co- P'-~~&- er ~ ~ ~---) 4- ~"'t-~

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. . ~ " ",' ... ~ ! I:,' ; -. :.!(

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." 358 <'" t

A ," • __ ~DllCatl0n 0: _~c: to Sco!-

50 £; 51 'Vic:. c. 20. not to 2.pp}y to t:-=.:!l 1::lo.e: _~c:.

She=: title.

I.ss::e of £18,';38,592 ot:.: 0: the Co::soliG.3.tec :E'=c..

?OVE:!' for the T::-ezsn..'j to bo:::-o~.

CEo 69,70. Public Bodies COi'1'V,pt PnLcticcs .Act, 1889.

infiuence, or pretended aid, vote, cO:lsent, or infiuence, and also includes any promise or procuremeDt of or agreement or endeavour to procure, or the holding out of any expectation of any gift, loan, fee, reward, or ad\'ant:tge, as before defined..

8. Iu the application of this Act to Scotland the sheriff and sheriff substitute shall ha,e jurisdiction to try any offence under this Act; and

The expression" misdemeanor" sha'!l mean" crime and offence;" and

The expressio!l "municipal borough" shall mean any "burrrh." . - . ~

~. Th;: p:o:-isi0:r;-s of th~ Crimi~~l Law, an~, Proced~e (Ire~and) Act, ISS" soaJ no" apply i:.O any "nal unaer tlle pronslOns Ot this Act .... J

10. This Act !!lay be e:ited as the Public Bodies Corrupt PracticeS .! ct, 1889.

CHAPTER 70. b Act to 2:::)";)1'V a sum out of the Consolidated F'und to

"the sernce~ o:f~ the year ending on the thll'~rfu'st day of "\of arch o~e thousand eight hundred. and nihety, and -to approT.ll':ate the SUD'Plies £'ra~ted in this Session of Pa:rliame~t. ...... ~ [30th August 1889.J

'liost G=2.~ious So~e.!e:2'n, ._.

W, E. -r our y; aiestv's most -cutiful a:1d loyal subjects, the CoIil.­, r:oODS of ~be t-:-nited "kingdom ci Great Britain and Ireland.

;..., :?a.:-liament assembled, towards makiDg good the supply w~ch "e la'Ve chee . ..':clly granted to Your Majesty in this se:.sion <?f :?2"1:ame!lt, ha.e resoh'ed to grant :.mto Your ::Jajf'.sty the sum;,­herein-afte:- me::ltionec.; a.nd do the:refore most hUIllbly beseeCh T ou.:- Majesty t1!at it may be enacted; and be it enacted by t~e­Quee::l's most :G::c~llent Majesty, by and with the ad'rice and sent of the Lor2..s Spiritual and Temporal, and Commons, in. present Pp.rliame!lt assembled, and by the authority of the same, follows: .

Grant O'lLt oj Consolidated Fund. 1. The COl:n .. "'Dissioners of Rer :M:ajesty's Treasury for the

beiIlg may issue out of the Consolidated Fund of the United oU-'o,~"'~~'­of Great B=ita~"" and Ireland, and apply towards ml'l-ing sup?ly gTllntea. to Rer Majesty for the sernce of the year c,u.\.U.o"'So

on the thi.-t-v-5::st da. of March one thousand eight hundred ""';"'e'iT, the ;um of Ei~hteen million four hundred and "-Lo.,rrrll<

thouS-and :five hl:ndred and ninety-two pound!':.

2. The Con::Icissioners of Her lfajesty's Treasury '::"om time to tDne, on the credit of the said sum .,,-,;1i ion,four n:u.:l.cred and thirty-eight thousand :five

.. '. ' ..... .

NATIONAL REPORT

FOR

HUNGARY

By Sandor DUSIK, Expert Adviser in the Hungarian Ministry of Interior, delegate in the Council of Europe's PC-R-EVand GRECO committee

1. The organisation of the fight against corruption on the national level

a. General policy

a.1. What general policy does your country have towards corruption (is it an issue or not; focus on repression and/or prevention, ........ )?

Draft Government Decree on legislative tasks and other measures aimed to improve the efficiency of fighting corruption:

"By adopting the principles and recommendations set forth in the relevant documents of United Nations, the Council of Europe as well as the European Union on curbing corruption the Government wishes to make definite steps to establish a new set of operating principles for governmental bodies to make it more transparent and facilitate accountability, thus improving the transparency of public life while also fulfilling the expectations of the Hungarian society and meeting international commitments. In order to reach the aforementioned goals the Government hereby issues the following decree:

1. The Government deems it highly undesirable that the undertaking of business functions by organizations and individuals performing public duties and services influence public decisions. Therefore, the Government hereby orders the relevant ministers to review the conflict-of-interest regulations pertaining to organizations and employees thereof directed or supervised by them that perform public services with special respect to the representatives of local governments, mayors, law enforcement agencies and officers and public servants. The operating principles and regulates should strictly separate public and private life and the set of rules enabling the employer to weigh possible conflicts of interests shall be narrowed down.

2. The regulations regarding the financing of political parties - with special respect to donations from individuals - shall be revised to enable tighter control of the sources of the assets and financial support of political parties. The current regulations shall be revised in such a manner that would eliminate any possibility to circumvent the regulations regarding political donations and proper registration thereof. The Government deems it undesirable to have political parties operating fully or in part on financial support of shady origin. Therefore new regulations shall be established to make sure that the political parties can only accept donations from individuals that are able to disclose or prove the legal nature of the origin of donated funds. The regulations enabling the verifiability of the origin of donations shall be integrated in the audit process aimed to supervise the finances of political parties.

1

3. In order to maintain the transparency of public life the Government wishes to establish an auditing system which on the one hand makes it mandatory to disclose the personal wealth and assets of the representatives [of the House], judges and state attorneys as well as individuals holding positions that require the highest level of national security clearance publicly whereas on the other hand makes the general public aware of not only the personal wealth of the individuals in question but also the increment thereof along with its origin. In order to enforce the principles set forth above the regulations to be implemented shall widen the circle of individuals obliged to report on personal assets and enable the public to verify the origin of any increment in the assets reported by such individuals. It shall be considered what groups of public servants should also fall under the obligation of reporting on present personal assets and the origin of increments, if any, in order to decrease the criminal risk of corruption. The Government deems it desirable to have the report on personal assets as well as the contribution of the individual in question to reporting on the origin of the increment(s) ofhislher personal assets on a regular basis as a prerequisite to employ such individual in any public service position involving increased exposure to corruption.

4. Under the auspices of fight against organized crime, organized corporate crime and corruption the Government dedicates special attention to criminal accusations and subsequent legal proceedings against individuals protected by immunity on the basis of holding public service position of high importance. The Government believes, that - in order to protect public peace of the democratic society - in high-profile cases that may jeopardize public trust in public service institutions it is unjustifiable to provide legal options that may hinder full-scale investigation of such cases. Therefore, to maintain public trust in individuals holding positions of high importance, the Government wishes to: a) implement rules that limit immunity in case of high-profile cases involving organized

crime, organized corporate crime or corruption and as a result the accountability of such persons can be decided upon within the framework of criminal proceedings;

b) consider, what types of crimes should be classified into the categories mentioned above;

c) weigh in the course of the codification process, whether the new regulation dealing with the categories set forth above should exclude or mandatorily suspend immunity or merely set such a short deadline [to decide on immunity] that serves the purposes of crime investigation;

d) implement a legal framework that makes it possible for the individual entitled to suspend or uphold immunity to get informed on the criminal proceedings or the facts of the underlying case before the beginning of the criminal proceedings, the latest.

5. The Government deems it important that - before making governmental decisions as well as during preparation and codification phase of legal statutes, in addition to interests defined within the framework of governmental operations - the exercisability of the interests of the civil society as well as those of the economic players be provided by a legal framework. The Government strives to make the process of preparing and codifying legal statutes fully transparent in order to reveal the interests and adverse interests as defined by governmental bodies and various social or economic players as well as the results of reconciling such interests that eventually lead to the final wording of such statutes. In order to enforce the Government's intention the regulations regarding existing reconciliation mechanisms shall be revised and it is justifiable to legislate a "lobby act" that would make sure that:

2

a) the relationships between the participants of the decision-making process, that is governmental bodies responsible for preparation and codification of legal statutes as well as registered organizations entitled to represent interests and adverse interests as defined by social or economic players are predictable and in order from a legal point of view;

b) the public can be aware of all parties participating in preparatory work.

6. Within the framework of the fight against organized crime, organized corporate crime and corruption the Government wishes to underline the importance of providing regular and exhaustive media coverage of relevant high-profile cases. To provide such coverage the Government reckons on the active contribution of the media players (with special attention to the media institutions providing public services) and the same time calls governmental bodies to put a strong emphasis on helping the representatives of media to perform such tasks. The ethical and responsible coverage of crimes that may erode public trust is of the utmost importance. As a consequence, the Government wishes to put forward the following principles: a) The media coverage - acting for public interest - must also playa role in preventing

crimes of this nature in order to increase the ability of the society to defend itself against the same. This makes it necessary to work out regulations and policies regulating the activities ofthe press and the media in general to ensure that -in addition to factual reports on the crimes - the coverage of such crimes also reveal the causes and environmental factors leading to such crimes.

b) It is unjustifiable to carry on the current media policy of not disclosing the true identity of the person(s) being accused of crime(s) in media reports due to the obligation to protect privacy and uphold presumption of innocence. New media policies must be introduced for informing the public that put the emphasis on protecting the interests of juveniles and those in danger as well as those of the criminal investigations while upholding the rights to privacy of those involved. On the other hand all such media coverage must solely be based on the facts at hand with regard to both the person(s) being accused and the institution(s) that can be connected to such person(s).

c) The need to ensure that media coverages are based on facts only shall not lead to creation and distributionlbroadcasting ofunresponsible rumours. In order to avoid this, the relevant minister shall revise the Act 2. of 1986 on the press as well as the Act 1. of 1996 on radio and television broadcasting to evaluate whether the regulations enacted to define and enforce legal responsibilities of individuals falling under the jurisdiction of the fore-mentioned Acts are sufficient or not [to enforce law-abiding behaviour] .

d) In the course of proper media coverage of crimes undermining public trust the crime investigation and other governmental bodies shall increasingly guard crime investigation interests. In order to achieve this goal, the relevant ministers shall review and, if needed, propose amendments to current regulations (by also considering the rules of criminal proceedings) to make sure that any public communication on behalf of the authorities do not affect the interests of criminal investigation adversely.

7. The Government orders the relevant ministers to review their former anti-corruption activities, evaluate the results and experiences and - in order to fight this phenomenon in a more effective way - work out action plans to implement tighter control of the activities performed by the authorities and employees thereof falling under their jurisdiction as well

3

as provide education and training for such employees for crime prevention purposes. The action plans shall be based on the principles as follows: a) It is very important to specify tasks aimed to make decisions more transparent and

auditable. To achieve this, an internal controlling mechanism shall be implemented that make the decisions made by the particular authority along with their causes obvious and accountable for those performing the audit.

b) The process of making decisions by an authority shall be complemented by work organization solutions that may reduce the risk of corruption associated with such decisions. In order to achieve this it is advisable to work out rules and regulations that - by also meeting the requirements of relevant legal statutes - force collective efforts in preparation and making of decisions specially prone to corruption. These requirements shall be enforced in regard to public administration proceedings directly affecting citizens as well as to the decision making process carried out by officials having direct contact with the members of the general public.

c) The action plans shall put an emphasis on the education of those taking part in the preparation and making of decisions exposed to corruption in order to make such individuals aware of the nature, possible causes and consequences of corruption. Such education shall take into account the peculiarities of the particular workplaces and jurisdictions, that is, the subject matters, form and organizational framework of the education shall be specified. The Government deems it desirable to organize corruption-prevention courses on a regular basis that could be attended by both the individuals working in public administration and the employees of the supervising organizations.

d) The Government wishes to grant anti-corruption experts the ability to obtain and advance their knowledge of the subject matter on organized workplace tours and education sessions abroad. Within the framework of this, the exchange of experts is highly desirable. In order to achieve this goal the relevant organizations shall strive to make full use of the assistance and scholarships to be offered by the European Union as well as other opportunities readily available through international cooperation and further extend international cooperation.

e) In order to make high profile decisions that have a higher risk of corruption associated with them transparent and auditable, they shall be given great pUblicity. The general public shall be enabled to get a clear insight into the process of preparing and making the decisions, the decisions themselves, the individuals involved in the process as well as the causes and reasoning of the decisions. Therefore the action plans shall put special emphasis on the communication activities of the organizations concerned as well as their relationship to the media, especially on how to provide the basis for a factual information supply that can be docurpented by the media. The Government deems it desirable that - in addition to considering the aforementioned principles - the authorities in question inform the media on a regular basis on high profile decisions and the causes thereof.

8. The Government hereby orders the body governing judicial institutions and the Attorney General's Office to review their former activities aimed to prevent corruption jeopardizing the operation of judicial organizations as well as those of the state attorneys and check control mechanisms used to supervise judicial work of courts and state attorneys. In order to fight the phenomenon more efficiently - and based on their previous experiences - they shall prepare an action plan to implement tighter control of the activities performed by the employees of courts and state attorney's offices as well as provide education and training for such employees for crime prevention purposes.

4

9. The Government wishes the put an emphasis on the fulfillment of obligations undertaken in international treaties for fighting against corruption as well as on the complexity of fight against corruption and especially on the concordance of actions and measures planned. Therefore, it orders the Minister of Justice and the Minister of the Interior to a) review legal statues in effect to establish whether they meet the requirements as

stipulated in international treaties along with the ones required by the legal harmonization process between Hungary and the European Union, and as a result, specify codification directives aimed to interpret the requirements of international treaties in a consistent way and - based on such interpretations - implement domestic regulations that are able to meet international expectations in a complex manner;

b) ensure the concordance of measures concentrated mainly in the field of law enforcement that are necessary for the codification and the operation and co-operation of governmental bodies commissioned to investigate and curb corruption in order to fight corruption in a more efficient way;

10. The Government hereby urges the development and introduction of educational programs in public schools to facilitate the development of behavioural patterns to refuse corruption. It is justifiable to teach - adjusted to meet the educational standards of various school types within the framework ofthe National Core Curriculum - the basics of how to realize the risk of corruption and how to rebut or avoid it as well as the Hungarian legal regulations regarding corruption. Such education shall serve - partly through intensified education of divinity and ethics - the moral development of students in such a manner that the refusal of corruption and the striving to achieve corruption-free social relationships would become a definite goal for the next generation. The relevant governmental, clerical and other social organizations shall also contribute to the enlightenment of those participating in low, middle or high level education.

11. The Government deems it desirable, that the professions and occupations particularly exposed to risk of criminal interference - especially corruption - compile a professional Code of Conduct to define basic ethical requirements for those pursuing such profession or occupation that would even be able to meet the ethical requirements ofthe society in cases beyond reach of legal statutes or other legislative efforts. Such Codes shall serve as a basis and norm to take steps against unethical conduct or behaviour. The Government therefore deems it necessary to adopt the following measures: a) It shall be reviewed whether such professions or occupations do have a Code of

Conduct and if they do, are they really up to today's requirements. The Government wishes to make sure that such codes of professional conduct define in-depth regulations concerning professional ethics rather than simply echoing the requirements as stipulated in relevant legal statutes.

b) In case of insufficiency or lack of rules regulating professional conduct, a Code of Conduct shall be compiled based on the range of expectations to be met by also taking into account the traditions of the particular profession as well as the expectations of the general public.

12. It shall be reviewed - by also considering the constitutional requirement ofthe availability of information of public interest - whether the circle of information classified by relevant statutes as business secrets can be narrowed. Within the framework of this review it shall be weighed whether the tender documentation as well as contracts or other agreements made with the winner(s) of public tenders for concessions, public procurement, sale of

5

• state assets as well as distribution of subsidies be made public - in its entirety - or not. Upon reviewing the above, a proposal shall be made for necessary amendment(s) to relevant statutes.

13. The Government deems it necessary to have the National Trade Commission routinely analyze the unit price figures for procured goods and services as publicized in the reports on public procurement tenders and inititiate an investigation ifthere is a suspicion of illegal price fixing or other unethical business conduct.

In concordance with the fulfillment oftasks undertaken within the framework ofthe legal harmonization process the Government deems it necessary to re-codify the Act on public procurement. In the course of this legislative work, further steps shall be taken to ensure the transparency of public procurement processes. The review of the Act on public procurement shall be done based on the following: a) the rules of obligation to provide information regarding the fulfillment of contracts

signed in association with public procurement tenders as well as the legal consequences of possible unjustifiable amendments of such contracts affecting the result of the base process adversely from a budgetary point of view shall be worked out and a proposal shall be prepared to establish an organization enforcing the aforementioned rules;

b) it shall be considered whether the option to set the lower limit of fines that may be imposed in legal proceedings based on the severity of the violation of law Act can be incorporated in the Act on public procurement or not.

14. The legal options enacted in certain member states ofthe Union that classify certain payments (such as commission fees, brokerage and referral fees, etc.) made in international business transactions under various titles tax-deductible shall be reviewed in order to make a legislative decision whether such model would be adequate to mitigate the risks of international and domestic corruption and fight it effectively with special respect to the ability to reveal and punish the corruption interweaving business operations. If the experiences at hand show that the introduction of such model makes the fight against corruption more effective then appropriate steps shall be taken to prepare the legislation thereof.

15. In order to curb frequent abuses in the distribution of goods subject to excise tax such as liqueurs and tobacco the relevant regulation shall be reviewed to consider whether it is advisable to uphold the present situation characterized by the coexistence of the range of goods subject to excise tax and another range of goods of similar [usage] value that is either not subject to excise tax or falls into another tax bracket or subject to another tax payment method. If it is justifiable to uphold such duality, then solutions shall be proposed that would result in reduced risk of abuses with special respect to the usage of gas products burned as fuel. The measures to be adopted shall strive to synchronize the operations and actions of the police, the customs and financial authorities as well as those ofthe consumer protection authorities that are going to be performed to curb the abuses committed in distribution and usage of the range of goods in question. It shall be analyzed what kind of role do the limited distribution options of such goods play in abuses. If the experiences indicate a correlation between the limited supply and the violations oflaw, then in order to eliminate such adverse effect a solution shall be proposed to adopt measures that would result in a healthier balance of supply and demand.

6

16. The Government deems it desirable that the officials fulfill their obligation to report on corruption and bribery attempts and contribute to the investigation of corruption cases they have become aware in a more consistent way. In order to achieve this goal, the Government deems it necessary to establish legal accountability so that officials who may become aware of corruption but fail to report it can be tried.

17. The Government regards the fight against corruption as a collective effort therefore it wishes to provide more effective ways for the cooperation between authorities obliged to act against corruption and the citizens ready to contribute to such efforts. In order to facilitate such cooperation the citizens shall be given the opportunity to report corruption cases to relevant authorities over the Internet and consult them, if necessary. Further technical option of such interaction with the citizens shall also be considered.

18. It is justifiable to revise the current criminal statistics system in order to get a more realistic picture of the nature and prevalence of corruption crimes that have become known. Therefore it is advisable to also analyze the corruption-related crimes presently being found in the criminal statistics system such as crimes against the order of elections (public referendum or initiative), abuse of power, connivance and certain cases thereof.

19. Of corruption-related crimes, the passive bribery is regarded by the Government as the most dangerous one. Likewise, such crimes committed against public service officials pose the greatest risk in terms ofthe perpetrators. The Government strives to give such crimes a harsher judgement and wishes to enable law enforcement agencies to enforce legal accountability of such crimes for a period longer than it is applied today. Therefore the Government deems the following measures necessary: a) The punishment of such crimes that can be imposed by the courts shall be revised to

make the criminal sanctions stricter therefore signifying the increased risk such crimes pose to the society.

b) The increased risks of passive bribery committed by the players of the economy shall also be taken into account. The imposable punishments that convey the intentions of the criminal law regarding business-related bribery shall also reflect this stricter judgment. In the course of revising punishments an effort shall be made to differentiate between the legal consequences based on the level of risk a particular corruption crime may pose to the society.

c) Considering the fact, that corruption and crimes of similar nature are hard to fully investigate and generally take longer to become known, a longer period of time shall be granted to the authorities performing the investigation to enforce the law. In the course of revising the punishments as stipulated by law the upper limit of criminal punishments shall be specified in order to extend the term of limitation, without touching the regulations regarding such terms.

d) In order to step up the effectiveness of measures against individuals committing passive bribery a legal option shall be established that would allow the the briber to evade criminal responsibility by [first] reporting the bribery to the authority and make it possible to identify the official that has been bribed. It shall be considered, whether it is advisable to grant immunity to the bribed individual- in exceptional cases, with regard to the nature and significance ofthe case, provided that the identification of the briber is of high importance to the investigating authority and the money or other form of monetary advantage taken as a bribe is simultaneously surrendered to the same authority. The legal option to be introduced shall ensure that the person who has been granted

7

immunity is questioned by the authority as a witness. On the other hand such person(s) shall not have the right to refuse confession on the grounds that he/she would thus accuse himselflherself of committing a crime.

20. The Government wishes to act against legal entities (business organizations) the operation of which can be linked to crimes committed by a natural person - who generally plays a decisive role in decision mechanisms of such legal entity - in a more efficient and consistent way.

As a consequence the Government deems it justifiable to introduce the legal option of applying restraining sanction(s) against such legal entities in accordance with the relevant recommendations of the UN, the Council of Europe and the European Union and to enforce regulations originating from the legal harmonization process in particular. It shall be weighed whether this goal Gan be achieved the most efficient way through amending civil law, public administration law or criminal law.

21. The Government hereby expresses its belief that any authorized person committing corruption or any similar crime in the course ofhislher professional conduct becomes unworthy to pursue such profession or occupation. Therefore - within the framework of reviewing relevant regulations - a solution shall be worked out that would make it mandatory for the courts to bar such persons committing corruption or any similar crime from pursuing their profession due to having become unworthy to do so.

22. In order to ensure factual coverage and protect the presumption of innocence that the suspect( s) are entitled to have, the Government deems it advisable to publicize the the content of final court decisions made in criminal trials of corruption or similar cases. The groups of corruption or similar crimes for which the courts decisions are to be made public as well as the content of such public reports shall be thoroughly considered and defined. In the course of formulating the rules of publication the following principles shall be considered: a) The Government deems it unnecessary to publicize the court decision in its entirety,

therefore any report made public shall eventually summarize the content of the decision in plain language.

b) The report summarizing the content ofthe court decision shall contain the name of the defendant, the legal description of the crime in case of conviction or the legal description of the charges in case of acquittal and the legal consequences to be suffered by the defendant. In addition, the public report shall also incorporate the most important facts of the case as established in the court, the reasons provided by the court and the circumstances relevant to making the decision to punish, as the case may be.

c) The summary of the court decision shall be made public in the official bulletin Magyar K6zlOny within a short period of time of the decision taking effect.

d) The Government deems is advisable to make the court - the decision of which is going to take effect - also responsible for the publication of the decision. As a consequence, the Government hereby calls upon the body governing the courts to participate in the codification work of the regulations regarding such publication.

23. It shall be considered what other legal options are available to restrain illegal profit-taking from corruption. The codification work shall focus on working out regulations that can effectively block mala fide property transfers and establish a legal procedure to enforce

8

such regulations. Within this framework it shall be considered to provide a legal option for the relevant authority to presume the illegal nature of any increment in personal wealth in exceptional cases where the corruption or similar crime has ties to organized crime. On the other hand, by verifying the legal nature of such increment the accused person shall be able to refute such presumption.

24. In order to fight corruption and similar crimes in a concerted and more efficient way the Government deems it desirable to concentrate the investigation of all corruption cases within the organization of the state attorney's offices. Therefore the Government calls upon the State Attorney to make a proposal- by considering the above - for a solution that would involve the transformation of the organization within his jurisdiction and incur the least possible expenses.

25. The Government wishes to introduce regulations that would allow the relevant authorities to make use of the assets confiscated in corruption cases (or cases involving similar crimes) directly and purposefully to fight corruption. In the course of reviewing regulations it is advisable to strive for establishing a central monetary fund that would enable the authorities fighting against corruption to make use such funds directly in order to improve their operations. This option shall also be made available (through public tenders) to civil organizations participating in the fight against corruption.

26. The Government puts special emphasis on the coordination and supervision of the anti­corruption codification process and other relevant measures as well as on regular and periodic analysis of the impacts thereof and expresses its will to inform the public continuously.

In order to achieve the goals specified above the Government calls upon the Minister of Justice to coordinate the anti-corruption strategy of the Government in conjunction with the Minister ofthe Interior. He shall supervise the tasks to be carried out by the governmental bodies and report to the Government on the progress six months after passing the present degree and on a yearly basis thereafter.

The Government proposes to establish an Anti-Corruption Board to advance the enforcement of the governmental anti-corruption strategy, monitor and analyze the results of public polls and other relevant studies and - based on this information -prepare the necessary decisions to be made by the Government. The Government hereby orders the Minister of Justice to appoint the candidates to the membership of the Anti-Corruption Board and work out the organizational and operating rules of the same in concert with the Minister of the Interior within 30 days of the passing of the present decree.

When appointing the candidates, due efforts shall be made to make sure that the Anti­Corruption Board is going to consist of well-respected members of international organizations as well as the country's public and business life and the membership of the Board shall not exceed 15 individuals. In order to strengthen the control of the society over the fight against corruption the Government deems it desirable to exclude individuals presently holding governmental positions or being employed by governmental bodies. These latter individuals would only contribute to preparatory

a.2. Do you consider this policy satisfactory or not? If not, in your opinion what are the main deficiencies?

9

Yes, it is satisfactory

b. Statistics

b.t. To what extent and from which sources are statistical data available concer:ning: corruption international co-operation in corruption cases the link between corruption and organised crime the link between corruption and money laundering?

• The database which provide for these specific infonnation is under construction at the Chief Prosecutor's Office.

• The source of statistical data on criminal cases is the monthly issued criminal statistics journal.

b.2. Can you provide these data? If they are not available, can you make an estimation?

c. Repressive legislation

c.l. Which types of behaviour can be sanctioned as forms of corruption (bribery, trading · . fl ?) In In uence, ....

• bribery, bribery in international relations • trading (trafficking) in influence • profiteering with influence in international relations

Active and/or passive corruption? In the public and lor the private sector?

• Active and passive corruption, public and private sector can be sanctioned alike.

c.2. Are those legal provisions only applicable if nationals are corrupted or is their scope of application more extensive (foreigners, members of international organisations, ... )?

• active bribery of domestic public officials • passive bribery of domestic public officials • bribery of members of domestic public assemblies • bribery of foreign public officials • bribery of foreign public assemblies • active bribery in the private sector

10

•

•

• passive bribery in the private sector • bribery of officials of international organisations • bribery of members of international parliamentary assemblies • bribery of judges and officials of international courts • trading in influence • profiteering with influence in international relations

c.3. Which sanctions can be imposed (imprisonment, fine, confiscation measures, deprivation of rights, administrative sanctions, blacklisting ... )?

• imprisonment

• fine • labour in the public interest • at this time administrative sanctions are not available for the offence of bribing a foreign

public official • The only administrative penalties currently available in relation to legal persons are

imposed pursuant to various statutes for the violation of those statutes. The most comprehensive example is Act CXL V of 1997 on the Registration of Companies, Public Company Information and Court Registration Proceedings. Penalties are imposed under this act where, for instance, a company enters unlawful data in the Register of Companies. The penalties include a fine between 50,000 and 500,000 HUF, suspension ofthe company's resolution for a specific period or a declaration that such resolution is null and void.

c.4. To whom are these legal provisions applicable (physical persons and/or legal persons)?

• Physical persons

c.S. What is the territorial scope of application of the provisions?

• Corruption committed in Hungary and abroad alike.

c.6. Does the law contain particular provisions relating to the burden of proof in corruption cases (reversal, division, protection of whistle blowers, .•. )?

• The sanction is more severe in case of perpetrator is an official person of senior position, or competent to take measures in important affaires or official in an important affair and if one violates his official duty for the favour, exceeds his competence or otherwise abuses his official position or ifhe commits the act as part of a criminal conspiracy or in a business-like manner

• The perpetrator shall not be punishable ifhe gave or promised the favour upon the initiative of the official person because he could fear unlawful disadvantage in case of his reluctance

11

. )

t)

c.7. Do you consider this legislative framework satisfactory? Unot, in your opinion what are the main problems?

• No, because the Hungarian legal system, does not provide for either criminal or non­criminal liability of legal persons for bribery. The Hungarian authorities are aware of the problem and are studying the introduction of appropriate solutions.

d. Preventive measures

d.l. What kind of prev~ntative measures exist in your country (auditing standards, financial disclosure obligations, codes of conduct, ... )?

• Act XVIII of 1991 on Accounting contains reporting and bookkeeping obligations, as well as disclosure, publication and audit requirements. Its aim is to provide an authentic and true overall picture in respect of the income producing capability, the development of the assets, the financial situation and the future plans of the entities falling under the effect of the Act.

Subsection 15(2) of the Act on Accounting states that an "economic organisation" shall enter into its books all the economic events of the year and the effect these events have on its assets and liabilities. An "entrepreneur" (entrepreneurs are defined as all legal entities and economic organisations without legal entity that perform on their own behalf and at their own risk business-like activities for the purpose of making a profit. These include credit institutions, financial enterprises, investment enterprises and insurance companies.) is required to keep double-entry books and ensure that the books reflect economic events that become know after the end of the accounting year but before the preparation of the balance-sheet.

Subsection 15(3) requires economic organisations to comply with the principle of authenticity, which requires that items entered in the books are verifiable.

Pursuant to subsection 15(13) economic organisations are obliged to follow the principle of content over form, and, therefore, must ensure that the recordings of transactions reflect their true nature.

Additionally, pursuant to subsection 83(1) a certificate must be prepared in relation to all economic transactions that change inventory or the composition of assets, or the sources thereof and the data on the certificate must be entered into the bookkeeping register.

Pursuant to Act CX! of 1996 on the Offering of Securities, Investment Services and on the Stock Exchange, companies whose shares are traded on the Stock Exchange have a more detailed and frequent information providing obligation. Companies that issue bonds or other securities are also subject to more onerous data providing obligations.

The tax provisions contain detailed regulations concerning accounting, verification and registration of incomes and losses of enterprises. The Act on Corporate Tax and Dividend Tax contains accounting regulations that are much stricter than those under the Act on Accounting.

12

• The penalties of deprivation of liberty for the foreign bribery offence are sufficient to enable mutual legal assistance. There is no limit concerning imprisonment in either Act XXXVIII on International Legal Assistance in Criminal Matters or in the Council of Europe Convention

• Pursuant to subsection 11(2) of Act XXXVIII of 1996 on International Legal Assistance in Criminal Matters, extradition is permitted in respect of offences that are punishable by "at least 1 year" imprisonment under the laws of Hungary and the requesting state

• The NEBEK (International Law Enforcement Centre) has the competence to authorise certain forms of legal assistance even without a previous authorisation from judicial authorities. This accelerates and provide uniform standards for international cooperation between police authorities.

• Does not require participation by officers of hungarian or foreign authorities in an official process abroad.

a.2. Who should the applicant apply to (which authority, person in charge at this instant, address, phone and fax number)? On which conditions and in which form?

• According to the general rules of procedure the applicant can tum to any authority which are all obliged to forward it to the competent authority.

a.3. Which particularities should the applicant be aware of when requesting co­operation from your country?

• The differencies between the rules of procedure, language.

a.4. Which (legal and factual) obstacles do, in your opinion, hamper an efficient co­operation in practice (bank secrecy, double incrimination, language, policy priorities, ... )? Which practical remedies can you suggest?

• The language because it takes time to have a certified translation.

b. Demand

b.l. What are your expectations when you request co-operation from another country in a corruption case?

• Quick, flexible procedure

b.2. To what extent are these expectations met?

• Mostly but it depends on specific cases and individuals. To have a personal contact is always useful.

It b.3. Which are the main problems and how can these be solved? I

14

• The language because it takes time to have a certified translation. • To set up a special unit for certified translation especially for these cases.

15

NATIONAL REPORT

FOR

GERMANY

By Claus-Peter HOLZ, Bundeskriminalamt, Kriminaldirektor, Korruptionskriminalitat

1. The organisation of the fight against corruption on the national level

a. General policy

a.l What general policy does your country have towards corruption?

Since the middle of the nineties the public show a growing interest in regards to corruption crime. The public debate on the issue of corruption has also caused politics and therefore legislation to consider new methods. Since 1997 various regulations and modifications to the law have been made on the preventive as well as on the suppressive level in order to fight corruption crime. The answers below will give more details on individual measures, programmes and concepts to fight corruption crime.

a.2. Do you consider this policy satisfactory or not? If not, in your opinion what are the main deficiencies?

The measures taken by the legislators so far definitely contribute to an improvement of the possibilities to fight corruption. Despite all new measures, new ways that lead to an increase in efficiency must be found again and again. This also represents a challenge to legislation. The answers below will indicate the individual demands.

b. Statistics

b.l. To what extent and from which sources are statistical data available concerning:

- corruption - international co-operation in corruption cases - the link between corruption and organised crime - the link between corruption and money laundering?

The corruption cases registered by the police are recorded by the annual Police Crime statistics. Since 1994 the Federal Office of Criminal Investigation has annually prepared a 'Situation Report on Corruption in the Federal Republic of Germany' (see enclosure no. 1) as well. Said report lists a variety of statistics (such as the number of crimes, the number of suspects, the aims of the corruption cases, the duration of corruptive connections, kind and amount of ,e benefits received) on all police investigations into corruption conducted within Germany in

1

the year in question. So-called state situation reports prepared by each State Office of Criminal Investigation provide the data basis of that report. Subsequently the Federal Office of Criminal Investigation evaluates all 16 state reports on corruption and prepares the federal report on corruption from that data. Detailed statistical data are depicted under Item b.2.

There are no statistics available on the connection between offences of corruption and money laundering.

b.2. Corruption

All existing statistical data concerning crimes of corruption are comprised in the Annual Report on Corruption in the Federal Republic of Germany. The following statistical data shall be depicted here as samples:

- number of investigative proceedings on corruption - number of uncovered crimes of corruption - number of suspects

A total of 1,034 investigative proceedings on corruption, i.e. proceedings based on corruption crime were registered in the year of 1999.

The development of the number of proceedings from 1994 to 1999 is depicted in the chart below:

1200 1.072

1.034

1

1994 1995 1996 1997 1998 1999

The 1,034 investigative proceedings revealed a total of6,743 individual corruption crimes. The chart below depicts the development of the number oflegal offences from 1994 to 1999:

2

15.968

1994 1995 1996 1997 1999

A total of2,535 suspects were detennined in 1999, who are distributed as follows:

Takers (corruptees): 1,299 Givers (corruptors): 1,181 Others: 55

The chart below depicts a survey of the years from 1994 to 1999:

15.968 1o_u.~u ....

14.0()OJ.-t----

1994 1995 1996 1997 1998

3

1999

The link between corruption and organised crime

The percentage of investigative proceedings concerning corruption with acknoledged links to organised crime amounts to 1.1 % for 1999, (11 ofthe 1,034 proceedings).

Development oflinks to organised crime since 1994:

1994: 33 investigations (12.8 %) 1995: 29 investigations (10.0 %) 1996: 11 investigations (2.7 %) 1997: 18 investigations ( 1.8 %) 1998: 7 investigations (0.7 %) 1999: 11 investigations ( 1.1 %)

International co-operation in corruption cases

The judicial assistance is handled by the court authorities. Each year the Federal Office of Criminal Investigation handles the international police information exchange in approximately 50 to 70 proceedings based on corruption crimes. These concern requests from German authorities as well as requests from foreign authorities. See Item 2 for more details.

The Link between corruption and money laundering

There is no statistical data available. However, it must be assumed that money laundering also plays an important role in corruption crime, since the subjects have to cover up and attempt to legalise the profits they achieved illegally.

c. Repressive legislation

c.l. Which types of behavior can be sanctioned as forms of corruption? Active and/or passive corruption? In the public and/or the private sector?

The German Criminal Code penalises corruption in the private sector (§§299 and 300, German Criminal Code) as well as in the public sector (§§331-335, German Criminal Code). While §299 of the German Criminal Code contains active as well as passive corruption, it is differentiated between active corruption (§333 and §334 of the German Criminal Code) and passive corruption (§331 and §332, German Criminal Code) for the public sector. In the public sector German criminal law diferentiates between acceptance of benefits/granting of benefits (§§331 and 333, German Criminal Code) and bribery/receiving a bribe (§§332 and 334, German Criminal Code). The difference is that in regards to the facts of bribery/receiving a bribe (§§332 and 334, German Criminal Code) an illegal act must have been committed by the takerlbribed person.

Furthermore the bribe of a member of Parliament, i.e. the purchase or sale of a vote for an election, is illegal according to § 1 08e.

4

The legal text of the crimes summarised in Gennany under the tenn of 'corruption crimes' is enclosed (enclosure no. 2).

c.2. Are those legal provisions only applicable if nationals are corrupted or is their scope of application more extensive?

With publication of the 'Act on the protocol of 27 September 1996 on the agreement on the protection of financial interests of the European Communities, ED-Corruption Act' (see enclosure no. 5) and the 'Act on the agreement of 17 December 1997 on the fight against bribery of foreign officials in international transactions' (Act on the Fight Against International Bribery; see enclosure no. 4) in the Federal Law Gazette of 1998 Part II No. 37, issued on 21 Sep 1998, foreign officials are treated the same as domestic officials. Therefore according to the ED-Corruption Act the corresponding Gennan Criminal law is applicable to active as well as passive corruption of foreign .

c.3. Which sanction can be imposed?

The criminal law implies the following penalties (see enclosure no. 2):

§ 108 e, Gennan Criminal Code: Confinement up to 5 years or fine § 299, Gennan Criminal Code: Confinement up to three years or fine § 300, Gennan Criminal Code: Confinement of three months to five years §§ 331 and 333, Gennan Criminal Code: Confinement up to three years or fine § 332, Gennan Criminal Code: Confinement of six months to five years, for judges up to 10 years § 334, Gennan Criminal Code: Confinement of six months to five years § 335 Gennan Criminal Code: Confinement of 1 year to 10 years

Besides confinement and pecuniary penalties § 73 and the following sections of the Gennan Criminal Code also provide for the possibility of forfeiture and confiscation. According to stipulations of the Gennan Code of Criminal Procedure it is possible to confiscate the pecuniary benefit gained from an illegal act; the court may then order forfeiture in subsequent proceedings.

Besides criminal sanctions there is also the possibility of disciplinary proceedings for officials in civil service. According to the severity of the offence the disciplinary law provides for disciplinary measures such as reprimandes, fines, cuts in salary, blocked promotions and in extreme cases tennination of employment.

Should pecuniary damages occur due to corrupt acts or such by the civil service or a damaged finn, recompensation can be claimed in accordance with civil law.

Some Gennan states have introduced corruption registers on state level, so-called 'black lists'. Finns (legal persons) that were convicted of corruption are entered into said registers and are excluded from public tendering for a certain period oftime (tender disqualification).

5

c.4. To whom are these legal provisions applicable?

The criminal sanctions mentioned in c.3. are only applicable to physical persons. The possibility of disciplinary proceedings additionally exists for suspects (officials) in public servIce. Legal persons can merely be punished by being entered into a corruption register (only possible in a few German states).

c.S. What is the territorial scope of application of the provisions?

Principally German criminal law applies to acts committed in-country. Exceptions are covered by § 5 of the German Criminal Code No. 12-14 a (see enclosure no. 2). According to the International Corruption Act and the EU-Corruption Act, §§332, 334-335 of the German Criminal Code also apply to acts committed abroad (see enclosure no. 4 and 5).

c.6. Does the law contain particular provisions relating to the burden of proof in corruption cases?

There is no reversal of burden of proof for corruption crimes which is a basic rule of German criminal law .

There are no special legal provisions for the protection of 'whistle blowers'. If there is a concrete danger to the life of a witness, protective measures can be taken.

c.7. Do you consider this legislative framework satisfactory? If not, in your opinion what are the main problems?

Overall the legal provisions to fight corruption are sufficient.

The creation of a federal corruption register ('black list'), listing firms prosecuted for corruption and excluding them from public tendering (tender disqualification) for a certain period of time, would be advantageous to a more effective punishment of legal persons. So far such registers only exist in individual German states. Frist considerations on federal level have already been started.

Legal provisions on the protection of potential witnesses from financial or professional disadvantages are also required. The fact that persons who provide the prosecuting authorities with information regarding corruptive connections in their firms or public offices may incriminate themselves, respectively have to consider the termination of their employment does not particularly promote their willingness to make a statement.

There are no legal provisions for telephone monitoring in corruption cases and also no "crown witness provisions". Which both might be useful for purposes of criminal prosecution.

6

d. Preventive measures

d.l. What kind of preventive measures exist in your country?

The Federal Republic of Gennany consists of 16 Gennan states that each have their own administration. The Federal Office of Criminal Investigation is therefore unable to make a concluding statement on the efforts to fight corruption in the whole Federal Republic of Gennany. Initiatives on state level can only be mentioned selectively.

On the federal level the 'Guideline of the Federal Government on the Prevention of Corruption in the Federal Administration' was published on 17 June 1998. The guideline contains 20 rules for the prevention of corruption and is mandatory for all offices of the Federal Administration. See enclosure no. 3 for the contents of said guideline.

Guidelines of similar content were also set in each state and are authoritative for the individual state administration. Furthennore particularly the larger authorities (such as the Federal Office of Criminal Investigation) publish their own infonnation and guidelines on the prevention of corruption for their employees.

Within the framework of corruption prevention the collaboration with other authorities whose tasks include the prevention of corruption is sought in several Gennan states. For instance in the State of Baden-Wurttemberg there is a 'coordinating group for the fighting of corruption' , in which a variety of authorities such as the Chief Public Prosecution, the State Audit Office, the State Cartel Authority, the City Convention, the Municipal Examination Institute and others are involved. It is the goal of that coordinating group to improve the coordination of measures through the cooperation of all authorities involved in the prevention and fighting of corruption.

A unifonn code of conduct for officials of public service is provided by the Gennan civil service law. The conduct expected in accordance with the civil service law, however, is only of an abstract nature. Concrete codes of conduct (such as a regulation on the acceptance of gifts etc.) are usually issued within the individual authorities.

For the private sector the code of conduct how to fight corruption in business issued by the International Chamber of Commerce (ICC) have become significant to a certain extent.

d.2. Do you consider this legislative framework satisfactory? If not, in your opinion what are the main deficiencies?

Principally the guidelines on the prevention of corruption issued on the federal and state levels and the measures contained therein are to be considered as being sufficient. What is merely lacking at times is a consequent realisation of the measures required in the guidelines, such as more training and additional training, a consequent use of administrative and departmental supervision, rotation etc.

In addition to the guidelines on the prevention of corruption the following items would be helpful for an improved prevention of corruption:

- a national corruption register ('black list')

7

Firms prosecuted for corruption should be listed in such a register and shall be excluded from public tendering for a limited period. Such corruption registers only exist in some German states without being connected to each other.

- central contacting and consultation offices

The demands furthermore include the establishment of central contacting and consultation offices at the police authorities or prosecutors' offices, providing competent points-of-contact in cases of suspected corruption (also for anonymous information).

- the duty to report suspected corruption

There is no legal duty for authorities and public service offices to report suspected corruption to the criminal prosecution authorities, but it is authorised by current law. If administrative or disciplinary investigations have revealed a well-founded suspicion of corruption, the criminal prosecution authorities should be informed accordingly.

The prevention and fighting of corruption falls within the responsibilities of a variety of authorities and institutions. In order to avoid duplicate work and to collect the existing information, collaboration based on individual requirements between the different institutions such as the audit offices, cartel offices, internal revenue services, non-governmental organisations such as Transparency International etc. is needed. Until now collaboration between the different authorities and institutions has only taken place selectively; however, it should become a constant establishment in the fight against corruption.

e. Structures

e.l. Has your country established specialised services, specifically assigned with the combat against corruption? If so, what are the institutional context, the composition, the functions and the powers of these services?

Here we must differentiate between the federal and the state fight against corruption. Due to the federal system of the Federal Republic of Germany the police and the prosecution are the responsibility of each individual state. (Art. 30 German basic law: Holding state authority and performing state duties are federal states affairs, ... ) All 16 states have their own state police force (security as well as criminal investigation) and their own prosecution. For that reason neither the police nor the prosecution in Germany have a central special services center that would be responsible Germany-wide concerning crimes of corruption.

Federal fight against corruption:

In the field of corruption the Federal Office of Criminal Investigation holds the position of the central function office for the state offices.

procurement and evaluation of information (open and undercover)

8

reparation of infonnation exchange within that specific area of criminal investigations (national/international) coordination and accompanying evaluation of own investigations and those of other authorities development/optimization of concepts to fight corruption

The Federal Office of Criminal Investigation has no original responsibility for investigation in the field of corruption crime, i.e. investigative proceedings can only be carried out upon request or on instructions.

Fight against corruption in each state (police):

The fight against corruption (repression and prevention) IS regulated differently In each Gennan state.

1. Non-central processing

Nonnally, the investigative proceedings in the states are undertaken non-centrally by the locally competent offices of criminal investigation. The fight against corruption is usually assigned to the field of white-collar crime.

2. Central processing

Some Gennan states have a central corruption processing office. That office usually is in the State Office of Criminal Investigation, where a special organisational unit has been installed to fight corruption. Those offices have original jurisdiction for all crimes of corruption in their state.

Fight against corruption in each state (prosecution):

The state prosecutors' offices are in the process of establishing more and more specialised prosecutors' offices competent for all corruption crimes either within their area of jurisdiction or within the whole state. That makes it easier for the police to work in the field of corruption crimes, since they now have constant and competent points-of-contact in the prosecutors' offices.

No infonnation can be given on the structure and manpower of the individual special offices, as they differ from state to state.

e.2. Do you consider this structural framework satisfactory? If not, in your opinion what are the main problems?

Due to the federal system central processing of corruption crimes does not exist in Gennany, neither by the police nor by the prosecution.

The fight against corruption is handled very differently within the individual states. An effective and consequent pursuit of corruption crime

9

is possible in those states that have central processing of corruption crimes by special police or prosecutor's offices. Offensive investigations are carried out in those offices, that means that they do not limit themselves to known cases of corruption but also 'search for' new cases, which reflects in the statistics as a high number of investigations. That modle has turned out to be useful.

2. International co-operation regarding corruption

a. Supply

a.1. To what extent can your country offer international co-operation in corruption cases (exchange of police information, mutual assistance in criminal matters, extradition ... ) ?

In Germany the Federal Office of Criminal Investigation (BKA) is the central office in its function as Interpol and is the point of contact for international co-operation in police affairs. Requests from other Interpol-countries are processed at the BKA. If the the BKA does not have the desired information, the request is forwarded to the competent state office. The exchange of mutual assistance with foreign countries is based on the law providing for international mutual assistance in criminal matters. That law becomes applicable if there is no special agreement with the country in question (i.e. the Convention applying the Schengen Agreement or bilateral agreements). Principally the correspondence with foreign states is reserved to the federal administration. According to § 59 of the international mutual assistance in criminal matters, in connection with No. 123 of the Guidelines on Correspondence with Foreign Services, any police correspondence with foreign countries is to be forwarded to the Federal Office of Criminal Investigation (§ 3 BKAG; see enclosure no. 6). Thus the requests from foreign police stations are processed according to the above regulations and the desired measures, such as warrants for arrest, searches for wanted persons, establishment of identity, information provided by public registers as well as information provided by criminal police files. Within the scope of police co-operation no measures for criminal proceedings, such as interrrogations or searches, may be carried out for other countries. This requires a request for judicial assistance which cannot be transmitted via Interpol.

An exception can only be found in the European Agreement on Mutual Assistance. The request for judicial assistance needs several formal requirements that are set down in the European Agreement on Mutual Assistance and the Guidelines on Correspondence with Foreign Services. For instance it must be put in by the prosecution of the requesting country and is to be forwarded through the Ministry of Justice of the Federal Republic of Germany to the competent prosecutor's office or the competent judge.

Sections 2-58 (see enclosure no. 7) of the International Mutual Assistance Act regulate the extradition, transit and execution of foreign information such as searches and confiscation, insofar as no more specialised regulation in relation to the requesting country applies.

10

Police requests for judicial assistance can only be put in via Interpol by the Gennan Federal Office of Criminal Investigation to those countries where an international agreement justifies the duty that requests for judicial assistance put in by police authorities must be processed (agreements such as with Israel, the Netherlands, Austria, Switzerland and Italy).

a.2. Who should the applicant apply to (which authority, person in charge at this instant, address, phone and fax number)? On which conditions and in which form?

For requests within the range of police co-operation the applicant can apply to the National Central Office of Interpol at the Federal Office of Criminal Investigation in Wiesbaden.

If the application concerns a request for carrying out measures for criminal proceedings within Gennany, a request for judicial assistance must be forwarded by the competent prosecutor's office via the country's Ministry of Justice to the Gennan Ministry of Justice.

In accordance with No. 1231125 of the Guidelines on the Correspondence with Foreign Services the police application should contain certain data on the investigative proceedings. These are infonnation on the investigative authority, infonnation on the accused and on the crime he or she is charged with. Other than that the request requires no special fonnat. The request may be sent infonnally via Interpol to the Interpol Central Office.

a.3. Which particularities should the applicant be aware of when requesting co­operation from your country?

Within the scope of international exchange of police infonnation the applicant should pay attention to the guidelines set down in the Guidelines on the Correspondence with Foreign Services as mentioned above. The request must contain the general data in accordance with No. 125 of said guidelines.

Extradition is only possible if there is an agreement for extradition with the requesting country and if there is a warrant for arrest or a judgement against the wanted person. Furthennore the crime must be punishable by Gennan law and limitation of time has not yet become effective. Extradition is excluded concerning Gennan citizens. However, there is an intention to modify the Gennan Basic Law to the effect that Gennan citizens can be extradited within the European Union or to international law courts. If the wanted person risks capital punishment or if the extradition contradicts essential principles of Gennan law (such as the threat of torture), the request will be denied.

a.4. Which (legal and factual) obstacles do, in your opinion, hamper an efficient co­operation in practice (bank secrecy, double incrimination, language, policy priorities ... )? Which practical remedies can you suggest?

Problems are encountered when putting in requests of judicial assistance to certain countries (such as Switzerland). When an appeal is filed, the documents are retained for up to two years or their release is even refused completely. In such cases legal assistance is first refused with the argument that the documents or money supposedly are not connected to the given facts in

11

Germany. In addition to that the trustee or attorneys frequently gear the case to a tax offence, making judicial assistance no longer possible.

b. Demand

b.1. What are your expectations when you request co-operation from another country in a corruption case?

When submitting a request to another country, observing the principle of equality, we expect to receive from the country we apply to police information or judicial assistance to the same extent as we ourselves have already granted to the country in question. In addition to that it is important that the country applied to responds quickly to the request.

b.2. To what extent are these expectations met?

In general those expectations are met and the country applied to responds in a timely manner and by providing all required information. However, sometimes it also happens that the country applied to fails to respond even after repeated requests without giving any explanation, and that we must do without the required information. The utilisation of gained information in court requires the permission of the country applied to and is therefore difficult for the proceedings in Germany if said permission is withheld.

b.3. Which are the main problems and how can these be solved?

As in other crime fields the different legal provisions and opinions are an obstacle to international cooperation. A first step of importance would mean harmonization of legislation on EU-Ievel.

12

BUNDESKRIMINALAMT

LAGEBILD KORRUPTION

BUNDESREPUBLIK DEUTSCHLAND

1999

(KURZFASSUNG)

Bundeslagebild Korruption 1999 (Kurzfassung)

1 VORBEMERKUNGEN

Mit diesem Bericht wird dem Beschluss des AK II vom 01.102.04.1998 Rechnung ge­tragen, das Bundeslagebild Korruption ab dem Jahr 1999 jahrlich fortzuschreiben, und nicht mehr. in Form von Doppellagebildern wie in den Jahren 1995/1996 und

1997/1998 herauszugeben. Durch die jahrliche Fortschreibung des Bundeslagebildes

Korruption kann nunein aktuelleres Bild der. Korruptionslage in der Bundesrepublik

Deutschland aufgezeigt, und auf neue Formen der Korruptionskriminalitat schneller

fa reagiert werden.

Vorab ist ·zu erwahnen, dass die Zahlen dieses Bundeslagebildes nicht mit den An­gaben der "Polizeilichen Kriminalstatistik" (PKS) unmittelbar vergleichbar sind.

Die Datenbasis fUr dieses Lagebild bilden weiterhin die von den jeweiJigen Landes- .

kriminalamtem erstellten Landeslagebilder Korruption.

Auch im Berichtsjahr 1999 ist die vollstandige Einbeziehung von Daten zu Verfahren, die ohne polizeiliche Mitarbeit bei den Staatsanwaltschaften anhangig waren, nicht

moglich. Hier bedarf es noch weiterer Gespr.ache mit den zustandigen Gremien. Dies gilt auch fUr Daten aus Verfahren der Zollbehorden.

Ziel dieses Lagebildes ist es

• den bestehenden Ist-Zustand der Korruptionskriminalitat moglichst genau wiederzugeben,

• MaBnahmen zur Bekampfung der Korruption aufzuzeigen,

• Bekampfungsansatze zu empfehlen und

• einen Ausblick auf die zukOnftige Entwicklung dieses Deliktsberei­ches zu erstellen.

Bundeskriminalamt 1

Bundeslagebild .Korruption 1999 (Kurzfassung)

In der offentlichen Betrachtung der Korruptionsproblematik werden -insbesondere von den Medien- Korruptionssachverhalte unterschwellig mit dem "Verfall morali­

scher Werte" eng verknOpft.

Dies resultiert u.a. auch aus dem Empfinden beim Gebrauch des Begriffs "Korrupti­

on", unter dem im Alltagssprachgebrauch sin Zustand von komplexen Geflechten

verstanden wird, deren Durchdringung bzw. Aufbrechung aufgrund bestehender ge­

genseitiger Deckung und vorhandener Abhangigkeiten kaum moglich erscheint.

Der Begriff der "Korruption" wird im Strafrecht selbst nicht erlautert. Er umfasst viel­mehr verschiedene Strafrechtsnormen, die wie folgt beschrieben werden konnen:

• Einflussnahme von auBen auf offentlich Bedienstete, Abgeordnete, Angestellte im Privatbereich

• Einvernehmliche Verabredung zwischen der vorgenannten Perso­nengruppe und AuBenstehenden

mit dem Ziel, sich undloder anderen Vortejle zu verschaffen.

Foigende Straftatbestande des Strafgesetzbuches betreffen die Korruption im ,enge­

ren Sinne:

2

• § 299 StGB (Bestechlichkeit und Bestechung im geschaftlichen Ver­kehr)

• § 300 StGB (Besonders schwere Faile der Bestechlichkeit und Be-stechung im geschaftlichen Verkehr)

• § 331 StGB·(Vorteilsannahme)

• § 332 StGB (Bestechlichkeit)

• § 333 StGB (Vorteilsgewahrung)

• § ·334 StGB (Bestechung)

• § 335 StGB (Besonders schwere Faile der Bestechlichkeit und Be­stech un g)

• § 108 e StGB (Abgeordnetenbestechung)

Bundeslagebild Korruption 1999 (Kurzfassung)

Die zuvor genannten Straftatbestande gehen oft mit weiteren Delikten, wie z.B. Be­trug, Untreue, Strafvereitelung im Amt, Verletzung von Dienstgeheimnissen, Falschbeurkundung und VerstoBen gegen strafrechtliche Nebengesetze einher.

Zur Erleichterung des Verstandnisses wird im folgenden Text der Begriff des Vf?r­

teilsgewahrers/Korrumpierenden durch "Geber"und der Begriff des Vorteilsneh­mers/Korrumpierten durch "Nehmer" ersetzt.

Die Ermittlungsverfahren werden bei der Betrachtung ihres Ursprungs in strukturelle und situative Korruptionsfalle unterschieden.

Situative Korruption:. Hierunter sind Korruptionshandlungen zu verstehen, de­nen ein spontaner Willensentschluss zugrunde liegt, d.h. die Tatbestandsverwirklichung erfolgt als unmittelbare Re­aktion auf eine dienstliche Handlung und unterliegt keiner gezielten Planung oder Vorbereitung.

Strukturelle Korruption: Hier handelt es sich urn Faile, bei denen die Korruptions­handlung auf der Grundlage langerfristig angeJegter kor­ruptiver Beziehungen bereits im Vorfeld der Tatbegehung bewusst geplant wurde. Es liegen demnach konkrete bzw. geistige Vorbereitungshandlungen vor, die eine Spontani­tat der Handlung ausschlieBen.

Handlungskompetenz und kriminelle Energie der Tatverdachtigen sind im Bereich der strukturellen Korruption in der Regel h6her zu veranschlagen als in den Fallen situativer Korruption.

Bundeskrim inalamt 3

Bundeslagebild Korruption 1999 (Kurzfassung)

--_._---------------------------

2 LAGEUBERBLICK

Dem Bundeslagebild Korruption 1999 liegen Landeslagebilder aus allen 16 Uindern

zugrunde. DarOber hinaus wurden erstmals seit 1994 wieder Korruptionsverfahren

des Bundeskriminalamtes gemeldet und einbezogen.

Mit diesem Bericht ist es nunmehr moglich, Tendenzen und Entwicklungen der Kor­

ruptionskriminalitat Ober einen Zeitraum von sechs Jahren darzustellen. Wie in den

Vorjahren auch, kann lediglich Ober das polizeiliche Hellfel9 beri?htet werden, da nach wie vor keine Moglichkeit besteht, die Erkenntnisse der Justiz und des 20lls in das Lagebild einzubeziehen. Ober die Relation Hellfeld zu Dunke.lfeld liegen keine

konkreten Angaben vor. Die Tatsache, dass eine Vielzahl der Verfahren erst durch Errnittlungen der Polizei entstehen unq nicht durch Anzeigen Dritter, lasst jedoch

darauf schlieBen, dass viele Korruptionshandlungen irn Verborgenen bleiben. Grund

dafUr sind u.a. die begrenzten persone"en Kapazitaten der Polizei fOr die Aufdek­kung und Bekampfung der Korruptionskrirninalitat.

Nach einer deutlichen Steigerung zwischen 1996 und 1997 urn 142,2 % und urn

weitere 8 % zwischen 1997 und 1998 ist fUr 1999 erstrnals ein ROckgang der Verfah­renszahl urn 3,5 % auf 1.034 Verfahren zu verzeichnen.

4

Bundeslagebild Korruption 1999 (Kurzfassung)

Einen Oberblick Ober diese Situation gibt das folgende Schaubild wieder:

Entwicklunq der Verfahrenszahlen 1994 - 1999

1200 1.072

1994 1995 1996 1997 1998 1999

CI Gesamtzahl • Verfahren von situativer Korruption

1m Gegensatz ,zu den Jahren 1997 und 1998, in denen der Anteil der Verfahren si­

tuativen Ursprungs rOcklaufig war, steigt dieser von zuletzt 9 % im Jahr 1998 auf nun

18,5 % in 1999, und erreicht damit in etwa das Niveau aus dem Jahr 1994 (21,3 %).

Nach dem ROckgang der Verfahren mit BezOgen zur Organisierten Kriminalitat von

noch 12,8 % (33 Verfahren), in 1994 auf nur noch 0,7 % (7 Verfahren) in 1998, ist

1999 erstmalig wieder ein leichter Anstieg der Verfahren mit OK-BezOgen auf 1,1 ro oder 11 Verfahren zu verzeichnen.

Bundeskriminalamt 5

e Bundesiagebild Korruption 1999 (Kurzfassung)

Straftaten

Hier werden die "reinen" Korruptionsstraftaten den direkt damit verbunden 'anderen

Straftaten gegenObergestel/t. Andere Straftaten sind solche, die innerhalb desselben

Verfahrens in direktem Zusammenhang zu den Korruptionsstraftaten stehen. Hervor­

zuheben sind hier vor aI/em Betrugshandlungen, die durch die Korrumpierung von Amtstragern ermoglicht wurden (z.B. Submissionsbetrug).

1999 wurden 6.743 Korruptionsstraftaten und 2.580 damit zusammenhangende Straftaten registriert.

Nachfolgendes Schaubild verdeutlicht die Entwicklu~g der erfassten Straftaten in den Jahren 1994 bis 1999:

Festgestellte I gemeldete Straftaten 1994 -.1999

15.968

1

1 .. _IJlLJU'

1

1

1994 1995 1996 1997 1998 1999

G Korruptionsstraftaten • dire.kt qamit zusammenhangende Straftaten

6

Bundeslagebild Korruption 1999 (Kurzfassung)

Der Grund fOr das auffallend hohe Straftatenaufkommen im Jahr 1995 liegt darin,

dass in di~c;;em Jahr rund 6.500 Straftaten aile in aus zwei Einzelverfahren in die. Sta­tistik eingingen. Auch 1994 stammten ca. 7.100 Straftaten aus lediglich 8 Verfahren.

Die Angriffspunkte der Korruption lassen sich in folgende Bereiche g/iedem 1:

• Alig. offentliche Verwaltung

• Strafverfolgungs-/

Jusitzbehorden

• Wirtschaft

mit 748 Verfahren

mit 123 Verfahren

mit 109 Verfahren

In den Verfahren, bei denen eine Beeinflussung der Wirtschaft vorliegt,handelt es sich urn Verfahren gemaB §§ 299/300 StGB.

1 Zu 54 Verfahren liegen keine Angaben zum Zielbereich vor. Bundeskriminalamt 7

· Bundeslagebild Korruption 1999 (Kurzfassung)

Angaben zu den Tatverdachtigen

Wahrend 1995 bei den ermittelten Tatverdachtigen mit 1.330 Personen ein ROck­

gang von 14,6 % gegenOber 1994 mit insgesamt 1.557 Person en zu verzeichnen

war, stieg deren Zahl 1996 auf 1.639 Tatverdachtige (plus 23,2 %). Dieser Anstieg setzte sich in den Jahren 1997 mit 1.971 Tatverdachtigen (plus 20,3 %) und 1998 mit

2.040 Tatverdachtigen (plus 3,5 %) fort. FOr 1999 ist ein emeuter deutlicher Anstieg von 24,3 % auf 2.535 Tatverdachtige festzustellen. Auffallend ist die Veranderung

des Verhaltnisses zwischen "Gebem" und "Nehmem" - wahrend 1994 und 1995. "je­weils doppelt so viele "Geber" wie "Nehmer" gemeldet wurden, stelltsich dieses Ver­

haltnis seit 1996 relativ ausgeglichen dar.

Nachfolgende Grafik verdeutlicht diese Entwicklung:

Ubersicht "Geber" I "Nehmer" I "Sonstige"

1994 1995 1996 1997 1998 1999

I_ Geber B Nehmer DSonstige I

Unter "Sonstige" wurden Personen erfasst, deren Tatbeitrag nicht unmittelbar zuzu­

ordnen war, wie z.8. Vermittler, Gehilfen oder Geldboten.

8

Bundeslagebild Korruption 1999 (Kurzfassung)

B~i der Verteilung der "Nehmer" nach Beherden und Betrieben ergibt sich ein ahnli­

ches Bild wie in den Vorjahren. So stammt die Mehrzahl der "Nehmer" (31,1 %) aus

dem Gesundheitssektor, gefolgt von 18 % aus der Baubranche. Weitere 13,9 % der

"Nehmeru stammen aus Kommunalbeherden. Der im letzten Jahr festgestellte An­

stieg der uNehmeru aus Polizeibeherden setzt sich 1999 nicht fort. GegenOber 12,3 %

im Jahr 1998 sinkt dieser Anteil 1999 auf 9,1 %. 21,7 % der uNehmer" konnten lediglich unter der Rubrik uSonstige" ertasst werden.

Wie bereits in den Lagebildern 1994 bis 1998 sind auch 1999 die Mehrzahl der

uNehmeru (39,6 %) in einer sachbearbeitenden Funktion tatig. Einer leitenden Funkti­

on kennen 24,5 % der' uNehmer" zugeordnet werden. Bei 1,4 % der tatverdachtigen

. uNehmer" handelt es sich urn BOrgermeister.

Auch bei der Dauer der Aufgabenwahrnehmung hat sich im Vergleich zu den Vorjah­

ren nichts geandert. Ober 70 o/~ (72,7 %) der tatverdachtigen uNehmeru sind Ober 5

Jahre in ihrem Aufgabenbereich tatig, der uberwiegende Teil hiervon so~ar Ober 10

Jahre.

Die Verteilung der uGeberu stellt sich anders dar. Bei 29,9 % handelt es sich urn Per­

son en ohne erkennbaren Bezug auf eine bestimmte Branche ("PrivatpersonenU). Der

Anteil der Straftater nimmt gegenOber dem Vorjahr (0,7 %) auf 1,6 % zu.

Eine Zuordnung zu einer bestimmten Branche ertolgt 1999 bei 68,5 % aller uGeber";

Die meistgenannten Branchen sind der Hoch- und Tiefbau (31,2 %) sowie das

Handwerk (14,1 %). Der in den letzten Jahren stark angestiegene Anteil der "Geber"

aus der Gesundheitsbranche sinkt 1999 auf 4,7 %.

Bu ndeskri m inalamt 9

Bundeslagebild Korruption 1999 (Kurzfassung)

Verfahrensbezogene Erkenntnisse

BezOglich des Ursprungs der Verfahren ergibt sich fOr 1999 das gleiche Bild wie in

den Vorjahren. Die Mehrheit der Verfahren kam durch eine Anzeige von Amts wegen

zustande (428 Verfahren), gefolgt von Anzeigen durch andere Behorden (70 Verfah­

ren). Die restlichen Anzeigen verteilen sich u.a. auf anonyme Hinweisgeber (54 Ver­

fahren), die jeweils betroffene Stelle (34 Verfahren) und auf nicht tatbereite "Nehmer"

(26 Verfahren).

Bei den Sachbearbeitenden Dienststellen setzt sich der Trend, immer mehr Ve'rfah­

ren von Spezialdienststellen zur Korruptionsbekampfung zu bearbeiten, fort. Wurden

1998 noch 32,8 % aller Verfahren bei solchen Spezialdienststellen gefOhrt, liegt die­

ser Anteil1999 bei.52,5 %. Der Anteil der bei Fachdienststellen zur Bekampfung der

Wirtschaftskriminalitat bearbei~eten' Verfahren steigt 1999 von 24,2 % (1998) auf

32,4 %. Die . restlichen Verfahren wurden durch Sonderkommissio­

nen/Ermittlungsgruppen (4,9 %), von Spezialdienststellen zur Bekampfung der Orga­

nisierten Kriminalitat (2,2 %) und sonstigen Dienststellen (8 %) .bearbeitet.

10 ~ ....... " .. " '.-~ : ~.:; ...

Bundeslagebild Korruption 1999 (Kurzfassung)

Bewertung

1m Berichtszeitraum 1999 ist sowohl bei der Verfahrenszahl als auch bei der Strafta­

tenzahl ein ROckgang festzustellen. Wahrend der ROckgang der Verfahrenszahl mit 3,5 % relativ gering ausfallt, ist der ROckgang der Korruptionsstraftaten um 39 %

doch als erheblich anzusehen ..

Ein Grund fOr den ROckgang der Verfahrenszahl konnte die fortschreitende Abarbei­

tung der bundesweiten sogenannten "Herzklappenverfahren" sein. 1991 wurden .al­leine durch die Lander Berlin undo Nordrhein-Westfalen 208 "Herzklappenverfahrenu ..

gemeldet. 1998 war eine ahnlich hohe Zahl dieset Verfahren zu verzeichnen. Be­rOcksichtigt man also den ROckgang der uHerzklappenverfahrenu, relativiert sich der

geringe ROckgang der fOr 1999 gemeldeten Verfahren. Somit ist trotz des geringen zahlenmaBigen ROckganges keinesfa]ls von einem Abflauen der Korruptionskrimina;.

litat zu .sprechen. Dies bestatigt sich auch im starken Anstieg der ermittelten Tatver­

dachtigen um 24,3 %. .

FOr den. relativ starkeri ROckgang der Korruptionsstraftaten von 11.049 (1998) auf 6.743 Straftaten (minus 39 %) bei fast gleich hohen Verfahrenszahlen liefem die

Landeslagebilder Korruption jedoch keine direkte Erklarung. Der ROckgang der

'iHerzklappenverfahrenu ist hierfOr nicht ursachlich, da es sich um keine Verfahren mit

besonders hohen Fallzahlen handelte.

Eine Erklarung fOr den ROckgang des Straftatenaufkommens konnte sich' aus dem

Meldeverhalten der sachbearbeitenden Dienststellen ei-geben. Bei der Auswertung

der an das Bundeskriminalamt Obermittelten Meldungen von Fallen mit erheblicher

oder Oberregionaler Bedeutung fallt auf, dass unter dem Punkt "StraftatenU oft ledig­lich die entsprechende Rechtsnorm genannt wird, nicht aber die jeweiligen Einzel­

fallzahlen. GrOnde dafOr konnten u.a. in der Tatsache liagen, dass zum Zeitpunkt der

. Weiterleitung der Meldung die genauen Einzelfallzahlen noch nicht feststehen. Die in den Richtlinien fOr den Meldedienst vorgesehenen Nachtragsmeldungen bleiben oft­

mals aus. Nachfragen in Einzelfallen bestatigen dies.

Bundeskriminalamt 11

Bundeslagebild Korruption 1999 (Kurzfassung)

3 SCHLUSSBEMRKUNG

Trotz des leichten Ruckganges der Errnittlungsverfahren urn 3,5 % zeigt dieses La­

gebild, dass Korruption nach wie vor einen festen Platz in unserer Verwaltung und

Wirtschaft inne hat. Dies belegt auch die starke Steig~rung von uber 24 % bei der

Zahl der Tatverdachtigen. Auch das seit ·Mitte der 90er Jahre festzustellende zuneh­

mende Interesse der Offentlichkeit bezuglich Korruptionsdelikten, in·sbesondere der

Medien, setzte sich 1999 fort, angefUhrt von der Affare urn Karl-Heinz Schreiber und dem Veliahren urn den Blutspendedienst des Bayerischen Roten Kreuzes.

Bei der Korruption lassen sich die typischen Merkmale der sogenanhten "Kontrollkri­

minalitat" erkennen, was bedeutet, dass eine Aufhellung des Dunkelfeldes von· der Intensitat der Kontrolle abhangig ist. Diese Kontrolle darf sich jedoch nicht auf die

Strafverfolgungsbehorden beschranken, sondem muss bereits bei den betroffenen.

Behorden und Institutionen beginnen.

Nach wie vor konnen keine Aussagen zum Dunkelfeld und damit zum tatsachlichen

AusmaB dieser Kriminalitatsform getroffen werden. Ebensowenig sind exakte Pro­

gnosen zur zukunftigen Entwicklung dieses Deliktsbereiches moglich. Jedoch lassen

die bei Polizei und Staatsanwaltschaften zu verzeichnenden Anstrengungen wie die

Bildung von Spezial- oder Schwerpunktdienststellen, sowie die Intensivierung von

Kontrollen und die zunehmende offentliche Sensibilisierung die Vermutung zu, dass in den nachsten Jahren mit ahnlich hohen Verfahrenszahlen zu rechnen ist.

Zusatzlich zu allen bisher untemommenen Anstrengungen der offentlichen Verwal­

tung sind sowohl die praventiven als auch die repressiven MaBnahmen zur Be­

kampfung der Korruption fortzufuhren und zu optimieren.

12

(2) t.. 6.~ II (~~) (orr

Bundesrepublik Deutschland Federal Republic of Germany Bundesministerium der Justiz

Federal Ministry of Justice

UNOFFICIAL ENGLISH TRANSLATION

Excerpts from the German Criminal Code

(in the version of the Act to Combat Corruption of 13 August 1997)

Sections dealing with corruption of public officials

Section 331: Acceptance of an advantage

(1) Any public official or person under a special obligation in respect of the public service who demands, allows himself to be promised or accepts an advantage for himself or a third person for performance of an official duty shall be punished by imprisonment not exceeding three years or by a fine. .

(2) A judge or an arbitrator who demands, allows himself to be promised or accepts an advantage for himself or a third person in return for his having performed, or his performing in future, a judicial act shall be punished by imprisonment not exceeding five years or by a fine. An attempt shall incur criminal liability.

(3) Criminal liability shall not be incurred pursuant to Subsection 1 if the perpetrator allows himself to be promised or accepts an advantage that he has not demanded and the competent authority, acting within the scope of its powers, either previously approved acceptance or the perpetrator promptly reports it to the authority and the latter approves acceptance.

Section 332: Taking a bribe

(1) Any public official or person under a special obligation in respect of the public service who demands, allows himself to be promised or accepts an advantage for himself or a third person in return for his having performed, or his performing in future, an official act, and by so doing violates or would violate his official duties, shall be punished by imprisonment of six months to five years. In less serious

"-'/' -...-~ " \...: l.j":)

(Oi ,"

". \ 2

cases the sentence shall be imprisonment not exceeding three years or a fine. An attempt shall incur . criminal liability.

(2) A judge or an arbitrator who demands, allows himself to be promised or accepts an advantage for himself or a third person in return for his having performed, or his performing in future, a judicial act, and by so doing violates or would violate his judicial duties, shall be punished by imprisonment cif one to ten years. In less serious cases the sentence shall be imprisonment of six months to five years.

(3) If the perpetrator demands, allows himself to be promised or accepts an advantage in return for a future act, Subsections 1 and 2 shall already apply if he has indicated his willingness to the other person 1. to violate his duties in performing the act, or 2. to allow himself to be influenced by the advantage in the exercise of his discretion in a case where

performance of the act is at his discretion.

Section 333: Granting an advantage

(1) Whoever offers, promises or grants, for the person concerned or a third person, an advantage to a public official, a person under a special obligation in respect of the. public service or a, soldier of the Federal Armed Forces for performance of an official duty shall be punished by imprisonment not exceeding three years of by a fine.

(2) Whoever offers, promises or grants an advantage to a judge or an arbitrator, for the judge or the arbitrator concerned or a third person, in return for his having performed, or his performing in future, a judicial act shall be punished by imprisonment not exceeding five years or by a fine.

(3) Criminal liability shall not be incurred pursuant to Subsection 1 if the competent authority, acting within the scope of its p.9wers, either previously approved acceptance of the advantage by the recipient or approves acceptance following a prompt report thereon by the recipi.ent.

Section 334: Offering a bribe

(1) Whoever offers, promises or grants, for the person concerned or a third person, an advantage to a public official, a person under a special obligation in respect of the public service or a soldier of the Federal Armed Forces in return for his having performed, or his performing in future, an official act, so that the person concerned has violated, or would violate, his official duties, shall be punished by imprisonment of three months to five years. In less serious cases the sentence shall be imprisonment not exceeding two,years or a fine.

(2) Whoever offers, promises or grants a judge or an arbitrator an advantage, for the judge or the arbitrator concerned or a third person, in return for 1. his having performed a judicial act, thereby violating his judicial duties, or 2. his performing a judicial act in future, so that he would violate his judicial duties shall be punished in the cases referred to in number 1 with imprisonment of three months to five years, and in the cases referred to in number 2, with imprisonment of six months to five years. An attempt shall incur criminal liability.

(3) Where the perpetrator offers, promises or grants the advantage in return for a future act, Subsections 1 and 2 shall already apply if he attempts to make the other person . ,. violate his duties in performing the act, or 2. allow himself to be influenced by the advantage in the exercise of his discretion in a case where

performance of the act is at his discretion.

Section 335: Particularly serious cases of Taking a brib~ and Offeri~·g a bribe

(1) In particularly serious cases 1. an offence pursuant to

a) Section 332 Subsection 1, first sentence, also in conjunction with Subsection 3, and b) Section 334 Subsection 1, first sentence, and Subsection 2, in each case also in conjunction

with Subsection 3, the sentence shall be imprisonment of one to ten years, and

-, ~ 3

2, an offence pursuant to Subsection 332 Subsection 2, also in conjunction with Subsection 3, the sentence shall be imprisonment of not less than two years.

(2) -A particularly serious case within the meaning of Subsection 1 shall, as a rule, be deemed to exist if 1. the offence relates to an advantage on a large scale, 2. the perpetrator recurrently accepts advantages that he has demanded in return for his performing

an official act in the future, or 3. the perpetrator acts commercially or as a member of a gang that has come together for recurrent

commission of such offences.

Section 336: Omission to perform the official act

Omission to perform an official act or a judicial act shall be deemed equivalent to performance of an official act or a judicial act within the meaning of Sections 331 to 335.

Section 337: Remuneration of arbitrators

Remuneration of an arbitrator shall only be deemed an advantage within the meaning of Sections 331 to 335 if the arbitrator demands, allows himself to be promised or accepts it from one party behind the back of the other or if it is offered, promised or granted to the arbitrator by one party behind the back of the other.

Section 338: Property fine and Extended forfeiture

(1) Section 73d shall be applied in the cases referred to in Section 332, also in conjunction with Sections 336 and 337, if the perpetrator acts commercially or as a member of a gang that has come together for recurrent commission of such offences.

(2) Sections 43a and 73d shall be applied in the cases referred to in Section 334, also in conjunction with Sections 336 and 337, if the perpetrator acts as a member of a gang that has come together for recurrent commission of such offences. Section 73d shall also be applied if the perpetrator acts commercially.

Section 11: Persons and definitions

(1) Within the meaning of this Code, the following shall be deemed to be [ ... J 2. a public official:

any person who, under German law, a) is a civil servant or judge, b) exercises some other official capacity under public law, or c) has otherwise been appointed to carry out functions of public administration with an authority

or other agency, or on its behalf, irrespective of the organisational form selected to carry out the functions;

3. a judge: . any person who, under German law, is a professional or honorary judge;

4. a person specially entrusted with public service functions: any person who, without being a public official, is employed by, or works for, a) an authority or other agency exercising functions of public administration, or b) an organisation or other association, operatrng' unit or enterprise carrying out functions of

public administration for an authority or other agency, and is formally obliged by statute to fulfil , his/her duties conscientiously;

[ ... J ~.

4

Section dealing with money laundering

Section 261: Money laundering; disguising of illegal property

(1) From three months' to five years' imprisonment or a fine shall be imposed on any person who conceals or disguises the origin of an item which derives from an illegal act specified in the second sentence, committed by another, or who prevents or places in jeopardy the detection of the origin, the location, forfeiture, confiscation or seizure of such an object. Illegal acts in the meaning of the first sentence shall be: 1. major crimes, 2. minor crimes pursuant to a) section 332 subsection 1, also in conjunction with subsection 3, and section 334, b) section 29 subsection 1 first sentence No.1 of the Narcotics Act (Betaubungsmittelgesetz) and section 29 subsection 1 No.1 of the Commodities Control Act (GrundstoffOberwachungsgesetz), 3. minor crimes pursuant to section 373 and, if the offender acts on a commercial basis, pursuant to section 374 of the Tax Code (Abgabenordnung), in each case in conjunction with section 12 subsection 1 of the Act to Implement the Common Market Organisations (Gesetz zur DurchfOhrung der Gemeinsamen Marktorganisationen)' .. 4. minor crimes a) pursuant to sections 180 b, 181 a, 242, 246, 253, 259, 263 to 264, 266, 267, 269, 284, 326 subsections 1, 2 and 4, as well as section 328 subsection 1, 2 and 4, b) pursuant to section 92 a of the Act on Aliens (Auslandergesetz) and section 84 of the Asylum Procedure Act (Asyfverfahrensgesetz), committed on a commercial basis by a member of a gang formed for recurrent commission of such offences, as well as 5. minor crimes committed by a member of a criminal association (section 129). In cases falling under the second sentence No.3, the first sentence shall also apply to an item which has been the subject of tax evasion.

(2) The same punishment shall be imposed on any person who, in respect of the item referred to in subsection 1, 1. acquires such item for himself or herself or for a third person, or 2. possesses or uses such item for himself or herself or for a third person, knowing at the time of receipt the origin of such item.

(3) The attempt shall be punishable.

(4) In particularly serious cases the punishment shall be imprisonment from six months to ten years. A particularly serious case shall generally be one in which the offender acts on a commercial basis or as a member cif a gang formed for recurrent commission of money laundering.

(5) Whoever in the cases falling under subsection 1 or 2 recklE?ssly fails to realise that the item derives from an unlawful act as specified in subsection 1, shall be punished by imprisonment of up to two years or a fine. .

(6) The offence shall not be punishable under subsection 2 if a third person has previously acquired the item without committing a criminal offence in doing so. , .

(7) Item's to which the criminal offence relates may be confiscated. Section 74 a shall be applicable. Sections 43 a and 73 d shall be applied if the offender acts as a member of a gang formed for recurrent commission of money laundering. Section 73 d shall also be applied if the offender acts on a commercial basis.

(8) The items referred to in subsections 1, 2 and 5 shall be on an equal footing with items deriving from offences committed abroad of the nature specified in subsection 1, provided the offence is punishable at the place of commission as well.

5

(9) Punishment under subsections 1 to 5 shall not be imposed on any person who 1. voluntarily reports the offence to the competent authority, or arranges voluntarily for such a report to be made, provided that the offence had not yet been discovered at this time, wholly or in part, and the offender was aware of this, or on reasonable consideration of the facts must have anticipated this, and 2. in the cases falling under subsection 1 or 2 under the conditions referred to in No. 1 causes the item to which the criminal offence relates to be seized. Punishment under subsections 1 to 5 shall not be imposed on any person who is punishable in respect of the predicate offence.

(10)The court may at its discretion mitigate punishment (section 49 subsection 2) in the cases falling under subsection 1 to 5 or dispense with punishment under these provisions if the offender by voluntarily disclosing his or her knowledge has substantially helped to make it possible for the offence, or an unlawful act of another, as specified in subsection 1, to be detected, gOing beyond his or her own contribution thereto.

Sections dealing with corruption of Members of Parliament

Section 108e: Bribery of a Member of Parliament

(1) Whoever undertakes to buy or sell a vote for an election or ballot in the European Parliament or in a representative body of the Federation, of the Lander, of the municipalities or associations of municipalities shall be punished with imprisonment not exceeding five years or with a fine.

(2) In addition to imposing a sentence of imprisonment for a criminal offence under Subsection 1 the court may deprive the convicted offender of the capacity to acquire rights ensuing from public elections and of the right t6 vote or cast a ballot in public matters.

Sections dealing with Corruption in the private sector

Section 299:Taking a bribe and Offering a bribe in the course of commercial activity

(1) Whoever, as an employee or agent of a commercial enterprise, in the course of commercial activity, demands, allows himself to be promised or accepts any advantage for himself or a third person in return for his giving, in an unfair manner, preference to another in the acquisition, in competition, of goods or commercial services shall be punished by imprisonment not exceeding three years or by a fine.

(2) The same sentence shall apply to whoever, in the course of commercial activity and for the purposes of competition, offers, promises or .grants an advantage to an employee or agent of a commercial enterprise or to a third person in return for his giving, in an unfair manner, preference to him or to another in the acquisition of goods or commercial services.

Section 300: Particularly serious cases of Taking a bribe and Offering a bribe in the course of commercial activity

(1) In particularly serious cases the sentence for an offence pursuant ·to Section 299 shall be .. imprisonment from three months to five years. A particularly serious case shall, as a rule, be deemed to exist if 1. the offence relates to an advantage on a large scale, or 2. the perpetrator acts commercially or as a member of a gang that has come together for recurrent

commission of such offences.

.. 6

Section 301: Application for criminal prosecution

(1) Taking a bribe and offering a bribe in the course of commercial activity pursuant to Section 299 shall only be prosecuted upon application being made, unless the prosecuting authority deems ex officio intervention to be required in view of the particular public interest in criminal prosecution. -

(2) Besides the victim, any person engaged in commerce, any association and any chamber referred to in Section 13 Subsection 2 numbers 1, 2 and 4 of the Act Against Unfair Competition shall. have the right to make an' application for criminal prosecution pursuant to Subsection 1.

Section 302: Property fine and Extended forfeiture

(1) Section 73d shall be applied in the cases referred to in Section 299 Subsection 1 if the perpetrator acts commercially or as a member of a gang that has come together for recurrent commission of such offences.

(2) Sections 43a and 73d shall b'e applied in the cases referred to in Section 299 Subsection 2 if the perpetrator acts as a member of a gang that has come together for recurrent commission of such offences. Section 73d shall also be applied if the perpetrator acts commercially.

Sections dealing with jurisdiction

Section 3: Offences committed in Germany

German criminal law shall apply to offences committed in Germany

Section 4: Applicability to offences committed on German vessels and aircraft

German criminal law shall apply, regardless of the law of the place of commission, to offences committed on a vessel or an aircraft authorised to fly the Federal flag or display the nationality mark of the Federal Republic of Germany.

Section 5: Offences committed abroad against domestic legal interests

German criminal law shall apply, regardless of the law of the place of commission, to the following offences committed abroad:

12. offences committed by a German public official or by a person under a special obligation in respect of the public service while on duty or in connection with his duties;

13. offences committed by a foreigner acting as a public official or as a person under a special obligation in respect of the public service;

Section 7: Applicability to offences committed abroad in other cases

(1) German criminal law shall apply to offences committed abroad against a German if the offence attracts criminal liability at the place of commission .or if such place is not subject to any criminal jurisdiction.

(2) German criminal law shall apply to other offences committed abroad if the offence attracts criminal liability at the place of commission or if such place is not subject to any criminal jurisdiction and if the perpetrator . 1. was a German at the time of the offence or became one subsequently, or 2. was an alien at the time of the offence, was found inside Germany and, although the Aliens Act would permit his extradition for the type of offence involved, has not been extradited because a request

was not made for extradition, or was refused, or because extradition cannot be executed ..

· . 7

Extended Forfeiture

Section 73d: Extended Forfeiture

(1) If an unlawful act has been committed in violation of a law that refers to this provision, the court shall also order forfeiture of objects of the perpetrator or accessory if circumstances justify the assumption that such objects have been obtained for or from unlawful acts. The first sentence above shall also apply if the sole reason why the object does not belong or appertain to the perpetrator or accessory is that he obtained it for or from an unlawful act. Section 73, subsection (2), shall apply mutatis mutandis.

(2) If, after the act, forfeiture of a particular object has become wholly or partially impossible, sections 73a and 73b shall apply analogously.

(3) If, after forfeiture has been ordered pursuant to subsection (1) above, a new decision is to be taken on forfeiture of objects of the perpetrator or accessory because of another unlawful act that the perpetrator or accessory committed prior to the order, the court shall take into account the order previously made. (4) Section 73c shall apply mutatis mutandis.

. , .:

LO$3/.r( rJ3) CO'r

Bundesrepublik Deutschland . -

Federal -Republic of Germany Bundesministerium des Innern

Federal Ministry of the Interior

Bonn, 26 October 1998

Subj.: Prevention of corruption

On 17 june 1998, the Federal Governement adopted a

Federal Government Directive concerning the Prevention of Corruption in the Federal Administration.

This directive entered into force with its publication in the Federal Gazette on 14 July 1998.

The directive requires all federal agencies to take the anti-corrup­tion measures provided in the directive. On the following pages you will find the English translation of the directive.

Translation

Federal Government Directive

concerning the Prevention of Corruption

in the Federal Administration

of 17 June 1998

The present Directive is adopted un~er Article 86 sentence 1 of the Basic Law:

1. Scope

The measures taken by all government offices for the prevention of corruption

are governed by the present Directive; deemed government offices for this pur­

pose are the supreme federal authorities, authorities of direct and indirect federal

administration, the federal courts, the federal special funds and institutional

beneficiaries supported predominantly by the Federation. Account shall be taken

of any special characteristics of these offices connected with their organisation

and specific tasks.

2. Identifying sensitive fields of activity; Risk analysis; Work routines

Sensitive and particularly sensitive fields of activities, that is fields that are vul­

nerable and particularly vulnerable to corruption, shall be identified in all gov­

ernment offices.

Whether to carry out risk analysis in particularly sensitive areas shall be carefully

considered. Work routines shall be adapted in line with the risk analysis findings.

3. Greater scrutiny and transparency

Greater scrutiny shall be ensured in sensitive areas of activity through the in­

volvement of more staff or organisationa! units in second checks. If this is not

possible owing to legal provisions or to insuperable practical difficulties, the sys­

tem of second checks may be restricted to random checks or, by way of com­

pensation, other preca!Jtionary measures (e.g. more intensive administrative and

substantive supervision) shall be envisaged.

r

Additionally, transparent decision-making shall be ensured (e.g. by clearly as-.

signing competencies, by a reporting system, IT-based monitoring of transactions

and operations, complete and accurate documentation [minutes, notes, reports.,

proper records]).

4. Rotation of staff

The precautionary measure of staff rotation shall be the aim in particularly sen­

sitive areas and in the channels overseeing these areas.

As a general rule, the term of office shall be specified. Where the term is ex­

tended for compelling reasons, the.se reasons shall be placed on record and

other preventive action taken by way of compensation.

5. Contact person for the prevention of corruption

Contact persons for· the prevention of corruption shall be appointed, their number

depending on the tasks and size of the offices concerned. One such person may

be responsible for several offices. Contact persons may be charged with the

following tasks:

Acting as a point of contact, someone with whom staff, private

individuals and office management can talk, without going through the official

channels, if need be;

adviSing office management, and advising and informing staff (e.g. in

seminars and presentations);

looking out for signs of corruption;

submitting proposals to office management on internal !nvestigations,

on anti-collusion measures and on informing the public prosecutor's office.

upon suspicion of corruption warranted by facts;

assisting in public relations by publishing sanctions .as imposed under

civil service and criminal law, heeding the right to privacy of the persons con­

cerned in doing so (preventive aspect).

If a contact person becomes aware of facts warranting the suspicion of a dis­

ciplinary offence by a civil servant (Section 26 (1) sentence 1 of the Federal

.-

6.

Disciplinary Code), they shall inform office management who shall initiate the in­

vestigations required to clear up the matter. No disciplinary powers according to

Section 15 (1) of the Federal Disciplinary Code may be conferred on contact

persons; they may not act as preliminary investigators, nor may they head inves­

tigations in any disciplinary proceedings on account of corruption. The given

office shall provide the contact person promptly and comprehensively with the

necessary information to enable them to carry out their duties, in particular in

incidents in which corruption is suspected. Contact persons shall maintain silence

about the personal circumstances of staff that have become known to them, even

after completion of their term of office; this shall not apply in relation to office

management and staff manageme~t when 'there is any suspicion of corruption

that is warranted by facts. '

Internal review

Office management shall charge an organisational unit with carrying out internal

reviews, for a limited period or on a permanent basis, whenever risk analysis

findings or special occasions require such; the staff in such units shall be given

suitable training for"this task. The object of internal reviews is the random

checking and monitoring of current and completed transactions and operations

and of decisions taken. In the event of flaws in corruption prevention it shall

recommend suitable changes to the organisation section and the organisational

unit concerned.

Under internal reviews, office management and the contact person for corruption

prevention shall be informed accordingly upon any sus'picion of corruption.

7. Selection of staff

Special care shall be taken in appointing staff to sensitive organisational units.

8. Alerting and informing staff

Staff shall be made aware of the risk of corruption when they take their oath of

office or are placed under obligation, and instructed of the consequences of cor- .

rupt behaviour. In addition, staff shall be given a generally valid ((ode of Conduct

enabling them to respond appropriately to any incidents in which corruption is

suspected to have occurred.

9. Training

..

e·

All basic and further training schemes shall be examined with a view to estab­

lishing whether participants have been adequately informed of corruption in all its

manifestations, of risk situations, of corruption prevention measures and of the

consequences - in terms of criminal law, civil service law and labour law - arising

in cases of corruption.

10. Systematic administrative and substantive supervision

Superiors shall be systematic in the exercise of their administrative and sUb:­

stantive supervision and look out for any signs of corruption. They shall regularly

alert their staff to the risk of corruption.

11. Full-time investigators

In order to accelerate disciplinary proceedings, the highest administrative

authorities may appoint full-time investigators for one or more offices.

12. Notification and action upon suspicion of corruption

Where there is suspicion, warranted by facts, of a criminal offence involving cor­

ruption (most notably Sections 331 to 338 of the Criminal Code), office man­

agement shall notify the public prosecutor's office and the highest administrative

authority without delay; furthermore, internal investigations shall be started and

preventive action taken against any collusion to conceal the facts.

13. Separation of planning, award and billing

In connection withJhe procurement of public works, supplies and services within

the meaning of the German Code for Awarding Public Works Contracts (VOB),

tlie German Code for Awarding Public Services Contracts (VOL) and the German

Code for Awarding Contracts for Professional Services (VOF) preparation,

planning and specification of requirements on the one hand and implementation

of the award procedure on the other should be entrusted in principle to separate

organisational units. Billing for construction work performed should be the re­

sponsibility of a third organisational unit.

14. Principle of public tender

The provisions of the German Codes for Awarding Public Works Contracts, Pub­

lic Services Contracts and Contracts for Professional Services relating to contract

award shall be strictly adhered to in the interest of preventing corruption.

The office concerned shall ensure that the reasons justifying any divergence from

the norm of public tender or open procedure are placed on record in each given

instance (Sections 3, 3 a and 30 of the VOBIA and VOUA respectively and

Section 18 of the VOF); in respect of public contracts worth more than the

amount set forth in Section 3 no 4 sub-paragraph p of the VOUA the reasons

shall be examined by a superior or by an organisational unit not taking part in the

actual procurement.

Public procurement shall be regularly monitored for inadmissible influencing fac­

tors as part of supervisory and substantive supervision.

15. Exclusion of companies from participation in the competition

Offices shall investigate whether a bidder or candidate is guilty of any serious

misconduct which compromises their reliability and which may lead to exclu~ion

from participation in the competition (Section 8 of the VOB/A, Section 7 of the

VOUA and Section 11 of the VOF).

A bidder or candidate is deemed guilty of such serious misconduct most notably

when they are proven to have offered, promised or granted an advantage to a

member of staff of an office engaged in the preparation or implementation of the

award procedure or to a third party. In their investigation, offices shall apply the

federal government decision on the uniform application of the rules concerning

the exclusion of unreliable companies from public contracts and on the introduc­

tion of a register for companies with proven unreliability.

__ I 16. Anti-corruption clause

In suitable cases, anti-corruption clauses shall be incorporated in contracts on

the purchase of public works, services or other supplies and services which, in

the event of conduct justifying the exclusion of the contractor from participation in

the competition under Section 7 no 5 sub-paragraph c of the VOUA, Section 8

no 5 para 1 sub-paragraph c of the VOBIA or Section 11 sub-paragraph c of the

VOF and leading to a substantial disadvantage for the contracting entity, provide

for payment by the contractor of a reasonable contractual penalty according to

Section 11 of the VOBIB or VOUB.

17. Placing contractors under an obligation as provided for by the Act on the

Engagement of Persons placed under an Obligation

Where private companies (e.g. main contractors, architects' or engineering con­

sultants' offices) assist in the discharge of public functions, the individual mem­

bers of staff of these companies - where appropriate - shall undertake in accor­

dance with Section 1 (1) of the said Act to conscientiously perform the duties in­

cumb.ent upon them arising from the contract. They shall be given a copy of the

directive concerning prohibition of the acceptance of rewards or gifts and shall

acknowledge receipt of the same.

18. Gifts and hospitality for events and facilities; Sponsoring

The prior consent of the highest administrative authority shall be obtained for the

acceptance of any gifts or hospitality from third parties outside the office con­

cerned for staff events or facilities. This shall qlso apply to any voluntary material

promotion (sponsoring) for the benefit of activities, events and facilities of the of­

fice concerned.

19. Special measures

If the particular circumstances of any office require additional arrangem,gnts for

the prevention of corruption, it shall notify the highest administrative authority

through the official, channels of all measures taken.

20. Recipients of subsidies

Where government offices give subsidies to offices outside the federal admini­

stration for purposes of promoting these offices, they shall oblige the recipients to

apply this Directive when they reql)ire the recipient to apply the VOUA and

VOBIA in accordance with the provisional administrative rules pertaining to Sec­

tion 44 of the federal budgetary regulations.

21. Entry into force

The present Directive shall enter into force on the day of its promUlgation in the

Federal Gazette:)

*) The Directive was promulgated in the Federal Gazette on 14 July 1998.

.!

Gesetz zur Bekampfung internationaler Bestechung - IntBestG

Vom 10. September 1998

§1 Gleichstellung von auslandischen mit inlandischen Amtstragern bei

Bestechungshandlungen

FOr die Anwendung des § 334 des Strafgesetzbuches, auch in Verbindung mit dessen §§ 335, 336, 338 Abs. 2, auf eine Bestechung, die sich auf eine kOnftige richterliche Handlung oder Diensthandlung bezieht und die begangen wird, urn sich oder einem Dritten einen Auf trag oder einen unbilligen Vorteil im internationalen geschaftlichen Verkehr zu verschaffen oder zu sichern, stehen gleich:

1. einem Richter:

a) ein Richter eines auslandischen Staates, b) ein Richter eines internationalen Gerichts

2. einem sonstigen Amtstrager:

a) ein Amtstrager eines auslandischen Staates, b) eine Person, die beauftragt ist, bei einer oder fOr eine Behorde eines

auslandischen Staates, fOr ein offentliches Unternehmen mit Sitz im Ausland oder sonst offentliche Aufgaben fOr einen auslandischen Staat wahrzunehmen,

c) ein Amtstrager und ein sonstiger Bediensteter einer internationalen Organisation und eine mit der Wahrnehmung ihrer Aufgaben beauftragte Person;

3. einem Soldaten der Bundeswehr:

a) ein Soldat eines auslandischen Staates, b) ein Soldat, der beauftragt ist, Aufgaben einer internationalen Organisation

wahrzunehmen.

§2 . Bestechung auslandischer Abgeordneter im

Zusammenhang mit internationalem geschaftlichen Verkehr

(1) Wer in der Absicht, sich oder einem Dritten einen Auftrag oder einen unbilligen Vorteil im internationalen geschaftlichen Verkehr zu verschaffen oder zu sichern, einem Mitglied eines Gesetzgebungsorganes eines auslandischen Staates oder einem Mitglied einer parlamentarischen Versammlung einer internationalen Organisation einen Vorteil fOr dieses oder einen Dritten als Gegenleistung dafOr anbietet, verspricht oder gewahrt, dass es eine mit seinem Mandat oder seinen Aufgaben zusammenhangende Handlung oder Unterlassung kOnftig vornimmt, wird mit Freiheitsstrafe bis zu fOnf Jahren oder mit Geldstrafe bestraft.

(2) Der Versuch ist strafbar.

§3 Auslandstaten

Das deutsche Strafrecht gilt, unabhangig vom Recht des Tatorts, fOr folgende Taten, die von einem Deutschen im Ausland begangen werden:

1. Bestechung auslandischer Amtstrager im Zusammenhang mit internationalem geschaftlichen Verkehr (§§ 334 bis 336 des Strafgesetzbuches in Verbindung mit § 1);

2. Bestechung auslandischer Abgeordneter im Zusammenhang mit internationalem geschaftlichen Verkehr (§ 2).

§4 Anwendung des § 261 des Strafgesetzbuches

In den Fallen des § 261 Abs. 1 Satz 2 Nr. 2 Buchstabe a des Strafgesetzbuches ist § 334 des Strafgesetzbuches auch in Verbindung mit § 1 anzuwenden.

EU-Bestechungsgesetz - EU-BestG

Vom 10. September 1998

§1 Gleichstellung von auslandischen mit inlandischen Amtstragern bei

Bestechungshandlungen

(1) FOr die Anwendung der §§ 332, 334 bis 336, 338 des Strafgesetzbuches auf eine Bestechungshandlung fOr eine kOnftige richterliche Handlung oder Diensthandlung stehen gleich:

1. einem Richter:

a) ein Richter eines anderen Mitgliedsstaates der Europaischen Union; b) ein Mitglied eines Gerichts der Europaischen Gemeinschaften;

2. einem sonstigen Amtstrager:

a) ein Amtstrager eines anderen Mitgliedsstaates der Europaischen Union, soweit seine Stellung einem Amtstrager im Sinne des § 11 Abs. 1 Nr. 2 des Strafgesetzbuches entspricht;

b) ein Gemeinschaftsbeamter im Sinne des Artikels 1 des Protokolls vom 27. September 1996 zum Obereinkommen Ober den Sch utz der finanziellen Interessen der Europaischen Gemeinschaften;

c) ein Mitglied der Kommission und des Rechnungshofes der Europaischen Gemeinschaften;

(2) FOr die Anwendung von

1. § 263 Abs. 3 Satz 2 Nr. 4 und § 264 Abs. 2 Satz 2 Nr. 2 und 3 des Strafgesetzbuches und

2. § 370 Abs. 3 Satz 2 Nr. 2 und 3 der Abgabenordnung, auch in Verbindung mit § 12 Abs. 1 Satz 1 des Gesetzes zur DurchfOhrung der Gemeinsamen Marktorganisationen,

steht einem Amtstrager ein in Absatz 1 Nr. 2 Buchstabe b bezeichneter Gemeinschaftsbeamter und ein Mitglied der Kommission der Europaischen Gemeinschaften gleich.

§2 Auslandstaten

Die §§ 332, 334 bis 336 des Strafgesetzbuches, auch in Verbindung mit § 1 Abs. 1, gelten unabhangig vom Recht des Tatorts auch fUr eine Tat, die im Ausland

. begangen wird, wenn

1. der Tater

a) zur Zeit der Tat Deutscher ist oder b) Auslander ist, der

aa) als Amtstrager im Sinne des § 11 Abs. 1 Nr. 2 des Strafgesetzbuches oder bb) als Gemeinschaftsbeamter im Sinne des § 1 Abs. 1 Nr. 2 Buchstabe b, der

einer gemaB den Vertragen zur GrOndung der Europaischen Gemeinschaften geschaffenen Einrichtung mit Sitz im Inland angehort,

die Tat begeht, oder

2. die Tat gegenOber einem Richter, einem sonstigen Amtstrager oder einer nach § 1 Abs. 1 gleichgestellten Person, soweit sie Deutsche sind, begangen wird.

§3 Anderung des Strafgesetzbuches

In § 5 des Strafgesetzbuches in der· Fassung der Bekanntmachung vom 10. Marz 1987 (BGB!. I S. 945, 1160), das zuletzt durch Artikel 2 des Gesetzes vom 10. September 1998 (BGB!. I S. 2322) geandert worden ist, wird folgende Nummer 14a eingefUgt:

"14a. Abgeordnetenbestechung (§ 108e), wenn der Tater zur Zeit der Tat Deutscher ist oder die Tat gegenOber einem Deutschen begangen wird,".

§ 3 Bundeskriminalamtgesetz (BKAG): Internationale Zusammenarbeit

(1) Das Bundeskriminalamt ist Nationales Zentralburo der Bundesrepublik Deutschland fUr die

Internationale Kriminalpolizeiliche Organisation.

(2) Der zur Verhutung oder Verfolgung von Straftaten erforderliche Dienstverkehr der Polizeien

des Bundes und der Lander mit den Polizei- und Justizbeh6rden sowie sonstigen insoweit

zustandigen 6ffentlichen Stellen anderer Staaten obliegt dem Bundeskriminalamt. Besondere

bundesgesetzliche Vorschriften, insbesond~re die Vorschriften uber die intemationale

Rechtshilfe in Strafsachen sowie abweichende Regelungen durch Vereinbarungen des

Bundesministeriums des Innern mit den zustandigen obersten Landesbeh6rden oder durch

Vereinbarungen der zustandigen obersten Landesbeh6rden mit den zustandigen auslandischen

Stellen im Rahmen der vom Bund abgeschlossenen Abkommen und die internationale

Zusammenarbeit der Zollbeh6rden bleiben unberuhrt.

(3) Absatz 2 Satz 1 gilt nicht fUr den Dienstverkehr der Polizeien der Lander mit den

zustandigen Beh6rden der Nachbarstaaten und der Mitgliedstaaten der Europaischen Union,

soweit dieser sich auf Kriminalitat von regionaler Bedeutung im Grenzgebiet bezieht oder soweit

Gefahr im Verzug ist. Die Lander unterrichten das Bundeskriminalamt unverzuglich uber den

Dienstverkehr nach Satz 1 . Bei abgrenzbaren Fallgestaltungen im Rahmen regionaler

SchwerpunktmaBnahmen k6nnen die Polizeien der Lander im Einvemehmen mit dem

Bundeskriminalamt den erforderlichen Dienstverkehr mit den zustandigen Beh6rden anderer

Staaten fUhren.

!

'Ii

j

"i

e e e Gesetz iiber die intern. Rechtshilfe in Strafsachen (IRG) 3.

Gesetz iiber die internationale Rechtshilfe in Strafsachen (IRG)

Vom 23. Dezember 1982 (BGBI. 1982 I S. 2071)

Inhal tsu bersich t

Erst,.,. Teil Anwendungsbereich

Anwendungsbereich .................... .

Zweiter Teil Auslieferung an das Ausland

Grunds.tz .. .. .. .. .. .. .. .. .. .. .. .. .. .... 2 Auslieferung zur Verfolgung oder zur Voll- . streckung .................•........•... Akzessorische Auslieferung ........•...... 4 Gegenseitigkeit ......................... 5 Politische Str.fmen, politische Verfolgung . . . 6 Militarische Str.ft.ten .................... 7 T odesstr.fe ............................ . Konkurrierende Gerichtsb.rkeit ........... 9 Auslieferungsunterlagen .................. 10 Spezialitat .............................. 11 Bewilligung der Auslieferung .•.. . . . . . . . . .. 12 Sachliche Zustandigkeit . . . . . • . . . . . . . . . . . .. \3 Ortliehe Zustiindigkeit ...........•....... 14 Auslieferungshaft ....................... , 15 Vorlaufige Auslieferungsh.ft .............. 16 Auslieferungshaftbefehl .....•............ 17 Steckbrief .............................. 18 Vorliiufige Festnahme .................... 19 Bekanntg.be . . . . • . . . . . . . . . . . . . . . . . . . . . .. 20 Verf.hren n.ch Ergreifung .uf Grund eines Auslieferungsh.ftbefehls . . . . . . . . . . . . . . . . .. 21 Verf.hren nach vorliiufiger Festn.hme ...... 22 Entscheidung tiber Einwendungen des Verfolgren ........•.................... 23 AufhebungdesAuslieferungshaftbefehls .... , 24 Aussetzung des Vollzugs des Auslieferungs-haftbefehls ............................. 25 Haftpriifung .•. .. . . . . . . . . . . . . • • • . . . . . . .. 26 Vollzug der Haft . . . . . . . . . • • • . . • • • . . • . . . •. 27 Vernehmung des Verfolgren .,. . . . . . . . . . . .. 28 Antrag auf Entscheidung tiber die Zulassig-keit der Auslieferung .,. . . . . • . . . . . . . . . . . .. 29 Vorbereitungder Entscheidung ............ 30 Durchfiihrung der mtindlichen Verhandlung. 31

Entschcidung tiber die Zul.ssigkeit ......... 32 Erneute Enrscheidung tiberdi. Zul.ssigkeit .. 33 Haft zur Durchfiihrung der Auslieferung .... 34 Erweiterung der Auslieferungsbewilligung .. 35 Weiterlieferung ......................... 36 VoriibergehendeAuslieferung ............. 37 Herausgabe von Gegenstiinden im Aus- , lieferungsverfahren ...................... 38 BeschlagnahmeundDurchsuchung ........ , 39 Beistand ............................... 40 Vereinf.chte Auslieferung ................ 41 Anrufung des Bundesgerichtshofes ......... 42

Drilter Teil Durchlieferung

ZulassigkeitderDurchlieferung ............ 43 Zustandigkeit .......................... 44 Durchlieferungsverfahren ................ 45 Durchlieferung bei vortibergehender Aus-lieferung .. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 46 Unvorhergesehene Zwischenlandung bei Beforderung auf dem Luftweg ............. 47

Vierter Teil Rechtshilfe durch Vollstreckung

auslandischer Erkenntnisse Grundsatz ............................. 48 Weitere Vor.ussetzungen der Zulassigkeit .. , 49 Sachliche Zustandigkeit .................. 50 Onliche Zustandigkeit .......•........... 51 Vorbereitung der Entscheidung . . . . . . . . . . .. 52 Beist.nd ......•.........•.............. 53 U mwandlung der .usliindischen Sanktion .,. 54 Entscheidung tiber die Vollstreckbarkeit .... 55 Bewilligung der Rechtshilfe ....•..•....•.. 56 Vollstreckung und Vollzug ...•..•.•.....• 57 Haft zur Sicherung der Vollstreckung ...... , 58

Funfter Teil Sonstige Rechtshilfe

Zuliissigkeit der Rechtshilfe .......•....... 59 Leistung der Rechtshilfe .................. 60

533

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@

-3. -Gesetz iiber die intern. Rechtshilfe in Strafsachen (IRG)

Gerichtliche Entscheidung .............. " 61 VOriibergehende Oberstellung in d.., Ausland flireinaus!:indischesVerfahren ............. 62 VOriibergehende Oberstellung .us dem Ausland flir <in ausliindisches Verfahren ..... 63 Durchbeforderung von Z<ugen ............ 64 Durchbeforderung zur Vollstreckung ....... 65 Herausg.be Von Gegenstiinden . . . . . . . . . . . .. 66 Beschlagnahme und Durchsuchung ......... 67

&Chst" Tn! Ausgchcndc Ersuchcn

Rticklieferung .......................... 68 VOriibergehende OberstelJung .us dem Ausland flir ein deutsches Verfahren ........ 69 VOriibergehende OberstelJung in d.., Ausl.nd flir cin deutsches Verfahren " . . . . . . . . . . . . .. 70 Ersuchen urn Vollstreckung ............... 71 Bedingungen ........................... 72

Kosten ................................ 75 Gegenseitigkeitszusicherung .............. 76 Anwendunganderer Verfahrensvorschriften. n

Achter Tell Andcrung sonstiger Rechtsvorschriften

G<richtsverf..,sungsgesetz ................ 78 Einftihrungsgesetz ZUm Gerichtsverfassung,. gesetz ................................. 7'1 Bundesrecht .. nwaltsordnung ............. 8C Bundesgebtihrenordnung ftir Rechts.

anwalte ................................ 81 Verordnung tiber Kosten im Bereich der Justizverwaltung ........................ 82 Anp..,sungvon Vertragsgesetzen . " ........ 83

Neunter Tei!

Siebent" T riI SchluBvorschriften

Gemeinsamc Vorschriften

Grenze der Rechtshilfe ................... 73 Zustiindigkeit des Bundes ................. 74

Einschrankung Von Grundrechten ......... 8-4 Berlin-KI.usel .......................... 85 Inkrafttreten, abgeloste Vorschriften und Obergangsregel ......................... 86

Der Bundestag hat mit Zustimmung des Bundesrates das folgende Gesetz beschlossen :

Erster Teil Anwendungsbereich

§1 Anwendungsbereich

(1) Der Rechtshilfeverkehr mit dem Ausland in strafrechtlichen Ange­legenheiten richtet sich nach diesem Gesetz.

(2) Strafrechtliche Angelegenheiten im Sinne dieses Gesetzes sind auch Verfahren wegen einer Tat, die nach deutschem Recht als Ordnungswid­rigkeit mit GeldbuBe oder die nach auslandischem Recht mit einer ver­gleichbaren Sanktion bedroht ist, sofern tiber deren Festsetzung ein auch fur Strafsachen zustandiges Gericht entscheiden kann.

(3) Regelungen in volkerrechtlichen Vereinbarungen gehen, soweit sic unmittelbar anwendbares innerstaatliches Recht geworden sind, den Vor­schriften dieses Gesetzes Vor.

534

j:~'.~i :}:~-'

8 Gesetz iiber die intern. Rechtshilfe in Strafsachen (IRG)

Zweiter Teil Auslieferung an das Ausland

§2 Grundsatz

3.

(1) Ein Auslander, der in einem auslandischen Staat wegen einer Tat, die dort mit Strafe bedroht ist, verfolgt wird oder verurteilt worden ist, kann diesem Staat auf Ersuchen einer zustandigen Stelle wr Verfolgung oder zur Vollstreckung einer wegen der Tat verhangten Strafe oder son­stigen Sanktion ausgeliefert werden.

(2) Ein Auslander, der in einem auslandischen Staat wegen einer Tat, die dort mit Strafe bedroht ist, verurteilt worden ist, kann einem anderen auslandischen Staat, der die Vollstreckung Ubernommen hat, auf Ersu­chen einer zustandigen Stelle dieses Staates zur Vollstreckung einer wegen der Tat verhangten Strafe oder sonstigen Sanktion ausgeliefert werden.

(3) Auslander im Sinne dieses Gesetzes sind Personen, die nicht Deut­sche im Sinne des Artikels 116 Abs. 1 des Grundgesetzes sind.

§3 Auslieferung zur Verfolgung oder zur Vollstreckung

(1) Die Auslieferung ist nur zulassig, wenn die Tat' auch nach deut­schem Recht eine rechtswidrige Tat ist, die den T atbestand eines Strafge­setzes verwirklicht, oder wenn sie bei sinngemaBer Umstellung des Sach­verhalts auch nach deutschem Recht eine soIche Tat ware.

(2) Die Auslieferung zur Verfolgung ist nur zulassig, wenn die Tat nach deutschem Recht im H6chstmaB mit Freiheitsstrafe von mindestens einem Jahr bedroht ist oder wenn sie bei sinngemaBer Umstellung des Sachverhalts nach deutschem Recht mit einer solchen Strafe bedroht ware.

(3) Die Auslieferung wr Vollstreckung ist nur zulassig, wenn wegen der Tat die Auslieferung zur Verfolgung wlassig ware und wenn eine freiheitsentziehende Sanktion w vollstrecken ist. Sie ist ferner nur zulas­sig, wenn w erwarten ist, daB die noch zu vollstreckende freiheitsentzie­hende Sanktion oder die Summe der noch zu vollstreckenden freiheits­entziehenden Sanktionen mindestens vier Monate betragt.

535

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3_Gesetz tiber die intern. Rechtshilfe in Strafsa!n (IRG)

§4 Akzessorische Auslieferung

1st die Auslieferung zulassig, so ist sic wegen einer weiteren Tat auch dann zuIassig, wenn fiir diese

1. die Voraussetzungen des § 3 Abs. 2 oder 3 nicht vorliegen oder

2. die Voraussetzungen des § 2 oder des § 3 Abs. 1 deshalb nicht vorl ie­gen, weil die weitere Tat nur mit cineI' Sanktion iIll Sinne des § 1 J\hs. 2 bedroht ist.

§5 Gegenseitigkeit

Die Auslieferung ist nur zulassig, wenn auf Grund der yom ersuchen­den Staat gegebenen Zusicherungen erwartet werden kann, daB dieser einem vergleichbaren deutschen Ersuchen entsprechen wiirde.

§6 Politische Straftaten, politische VerfoIgung

(1) Die Auslieferung ist nicht zulassig wegen einer politischen Tat oder wegen einer mit einer solchen zusammenhangenden Tat. Sie ist zulassig, wenn der Verfolgte wegen vollendeten oder versuchten Volkermordes, Mordes oder Totschlags oder wegen der Beteiligung hieran verfolgt wird oder verurteilt worden ist.

(2) Die Auslieferung ist nicht zulassig, wenn ernstliche Grunde fur die Annahme be~tehen, daB der Verfolgte im Fall seiner Auslieferung wegen seiner Rasse, s~iner Religion, seiner Staatsangehorigkeit, seiner Zugeho­rigkeit zu einer bestimmten sozialen Gruppe oder seiner politischen Anschauungen verfolgt oder best raft oder daB seine Lage aus einem dieser Griinde erschwert werden wiirde.

§7 Militarische Straftaten

Die Auslieferung ist nicht zulassig wegen einer Tat, die ausschlie61ich in der Verletzung militarischer Pflichten besteht.

§8 T odesstrafe

1st die Tat nach dem Recht des ersuchenden Staates mit der Todesstrafe bedroht, so ist die Auslieferung nur zulassig, wenn der ersuchende Staat

536

""' ....... ::irJ:;,:t~ti'i"'= .. ·f ..... ,.,'·'-'t"·p·z§" ... '

Gesetz tiber o!ll!ntern. Rechtshilfe in Strafsachen (IRG) 3.-zusichert, daB die Todesstrafe nicht verhangt oder nicht vollstreckt wer­den wird.

§9 Konkurrierende Gerichtsbarkeit

1st fiir die T:lt auch die deutsche Gerichtsbarkeit begriindet, so ist die Auslieferung nicht zui:issig, wenn

I. ein Cericht oder cine Behi)rde im Geltungsbercich dieses Gesetzes gegen den Verfolgten wegen der Tat ein U neil oder cine Entscheidung mit entsprechender Rechtswirkung erlassen, die Eroffnung des Haupt­verfahrens abgelehnt (§ 204 der StrafprozeBordnung), einen Antrag auf Erhebung der offentlichen Klage verworfen (§ 174 der StrafprozeBord­nung), das Verfahren nach Erfullung von Auflagen und Weisungen einge­stellt (§ 153 a der StrafprozeBordnung) oder nach Jugendstrafrecht von der Verfolgung abgesehen oder das Verfahren eingestellt hat (§§ 45, 47 des J ugendgerichtsgesetzes) oder'

2. die Verfolgung oder Vollstreckung nach deutschem Recht verjahrt oder auf Grund eines deutschen Straffreiheitsgesetzes ausgeschlossen ist.

§ 10 Auslieferungsunterlagen

(1) Die Auslieferung ist nur zulassig, wenn wegen der Tat ein Haftbe­fehl, cine Urkunde mit entsprechender Rechtswirkung oder ein voll­streckbares, eine Freiheitsentziehung anordnendes Erkenntnis einer zusrandigen Stelle des ersuchenden Staates und eine Darstellun~ der anwendbaren gesetzlichen Bestimmungen vorgelegt worden sind. Wird um Auslieferung zur Verfolgung mehrerer Taten ersucht, so geniigt hin­sichtlich der weiteren Tatcn anstelle cines Haftbefehls oder ciner Urkun­de mit entsprechender Rechtswirkung die Urkundc einer zustandigen Stelle dcs crsuchenden Staatcs, aus dcr sich die dem Verfolgten zur Last gelcgte Tat crgibt.

(2) Geben besondere U mstande des Falles AniaB zu der Priifung, ob der Verfolgte der ihm zur Last gelegten Tat hinreichend verdachtig erscheint, so ist die Auslieferung Ferner nur zulassig, wenn eine Darstel­lung der Tatsachen vorgelegt worden ist, aus denen sich der hinreichende T atverdacht ergi bt.

(3) Die Auslieferung zur Vollstreckung einer Strafe oder einer sonsti­gen Sanktion, die in einem dritten Staat verhangt wurde, ist nur zulassig, wenn

537

~ GesetZ fiber die intern. Rechtshilfe in Strafs!en (IRG)

1. das vollstreckbare, eine Freiheitsentziehung anordnende Erkenntnis und eine U rkunde des dritten Staates, aus der sich sein Einverstandnis mit der Vollstreckung durch den Staat ergibt, der die Vollstreckung i.iber­nommen hat,

2. eine U rkunde einer zustandigen Stelle des Staates, der die Vollstrek­kung i.ibernommen hat, nach der die Strafe oder sonstige Sanktion dort vollstreckbar ist,

3. eine Darstellung der anwendbaren gesetzlichen Bestimmungen so-wle

4. im Fall des Absatzes 2 cine Darstellung im Sinne dieser Vorschrift

vorgelegt worden sind.

§11 Spezialitat

(1) Die Auslieferung ist nur zulassig, wenn gewahrleistet ist, daB der Verfolgte

1. in dem ersuchenden Staat ohne deutsche Zustimmung aus keinem vor seiner Oberstellung eingetretenen Grund mit Ausnahme der Tat, de­rentwegen die Auslieferung bewilligt worden ist, bestraft, einer Beschran­kung seiner personlichen Freiheit unterworfen oder durch MaBnahmen, die nicht auch in seiner Abwesenheit getroffen werden konnen, verfolgt werden wird,

2. nicht ohne deutsche Zustimmung an einen dritten Staat weitergelie­fert, uberstellt oder in einen dritten Staat abgeschoben werden wird und

3. den ersuchenden Staat nach dem endgultigen AbschluB des Verfah­rens, dessentwegen seine Auslieferung bewilligt worden ist, verlassen darf.

(2) Die Bindung des ersuchenden Staates an die Spezialitat darf nur ent­fallen, wenn

1. die deutsche Zustimmung zur Verfolgung oder zur Vollstreckung ei­ner Strafe oder einer sonstigen Sanktion hinsichtlich einer weiteren Tat (§ 35) oder zur Weiterlieferung, Oberstellung oder Abschiebung an einen anderen auslandischen Staat (§ 36) erteilt worden ist,

2. der Verfolgte den ersuchenden Staat innerhalb eines Monats nach dem endgultigen AbschluB des Verfahrens, dessentwegen seine Ausliefe­rung bewilligt worden ist, nicht verlassen hat, obwohl er dazu das Recht und die Moglichkeit hatte, oder

538

_ e Gesetz tiber OIl! intern. Rechtshilfe in Strafsachen (IRG)! 3.

3. der Verfolgte, nachdem er den ersuchenden Staat verlassen hatte, dorthin zuruckgekehrt ist oder von einem dritten Staat zuruckuberstellt worden ist. Das Recht des ersuchenden Staates, den Verfolgten zur Vor­bereitung cines Ersuchens nach § 35 zu vernehmen, bleibt unberi.ihrt.

(3) Eine bedingte Freilassung ohne eine die Bewegungsfreiheit des Ver­folgten einschriinkende Anordnung steht dem endgultigen AbschluB des Vcrfahrcns nach Absatz 1 Nr. 3, Abs. 2 Satz 1 Nr. 2 gleich.

§ 12 Bewilligung cler Auslieferung

Die Auslieferung darf, auBer im Fall des § 41, nur bewilligt werden, wenn das Gericht sie fur zulassig erklart hat.

§13 Sachliche Zustandigkeit

(1) Die gerichtlichen Entscheidungen erlaBt vorbehaltlich der §§ 21, 22 und 39 Abs. 2 das Oberlandesgericht. Die Entscheidungen des Oberlan­desgerichts sind unanfechtbar.

(2) Die Staatsanwaltschaft bei dem Oberlandesgericht bereitet die Ent­scheidung uber die Auslieferung vor und fuhrt die bewilligte Ausliefe­rung durch.

§J4 Ortliche Zustandigkeit

(1) Ortlich zustandig sind das Oberlandesgericht und die Staatsanwalt­schaft bei dem Oberlandesgericht, in deren Bezirk der Verfolgte zum Zweck der Auslieferung ergriffen oder, falls eine Ergreifung nicht erfolgt, zuerst ermittelt wird.

(2) Werden mehrere Verfolgte, die wegen Beteiligung an derselben Tat oder im Zusammenhang dam it wegen Begunstigung, Strafvereitelung oder Hehlerei ausgeliefert werden sollen, in den Bezirken verschiedener Oberlandesgerichte zum Zweck der Auslieferung ergriffen oder ermit­telt, so richtet sich die Zustandigkeit danach, welches Oberlandesgericht oder, solange noch kein Oberlandesgericht befaBt ist, welche Staatsan­waltschaft bei dem Oberlandesgericht zuerst mit der Sache befaBt wurde.

(3) 1st der Aufenthalt des Verfolgten nicht bekannt, so bestimmt der Bundesgerichtshof das zustandige Oberlandesgericht.

539

3~Gesetz tiber die intern. Rechtshilfe in Strafsa!n (IRG)

§ 15 Auslieferungshaft

(1) Nach dem Eingang des Auslieferungsersuchens bnn gegen den Verfolgten die Auslieferungshaft angeordnet werden, wenn

1. die Gefahr besteht, da~ er sich dem Auslieferungsverfahren oder der Durchflihrung der Auslieferung emziehen werde, oder

2. auf Grund bestimmter Tatsachen der dringende Verdacht begriindet ist, da~ der Verfolgte die Ermittlung der Wahrheit in dem austindischen Verfahren oder im Auslieferungsverfahren erschweren werde.

(2) Absatz 1 gilt nicht, wenn die Auslieferung von vornherein unzulas­sig erscheim.

§ 16 Vorlaufige Auslieferungshaft

(1) Die Auslieferungshaft kann unter den Voraussetzungen dcs § 15 schon vor dcm Eingang des Auslieferungsersuchens angcordnet wcrden, wenn

1. eine zustandige Stelle des ersuchenden Staates darum ersucht oder 2. ein Auslander einer Tat, die zu seiner Auslieferung Anla~ geben

kann, auf Grund bestimmter Tatsachen dringend verdachtig ist. (2) Der Auslieferungshaftbcfehl ist aufzuhebcn, wenn der Verfolgte

seit dem Tag der Ergreifung oder der vorlaufigen Festnahme insgesamt zwei Monate zum Zweck der Auslieferung in Haft ist, ohne da~ das Aus­lieferungsersuchen und die Auslieferungsumerlagen bci dcr in § 74 bezeiehneten Behorde oder bei einer sonst zu ihrer Emgegcnnahme zustandigen Stelle eingegangen sind. Hat ein au6ereuropaiseher Staat urn Anordnung der vorlaufigen Auslieferungshaft ersueht, so betragt die Frist drei Monate.

(3) Nach dem Eingang des Auslieferungscrsuehens und der Ausliefc­rungsumerlagen entseheidet das Oberlandcsgerieht unverziiglieh iibcr die Fortdauer der Haft.

§17 Auslieferungshaftbefehl

(1) Die vorlaufige Auslieferungshaft und die Auslieferungshaft werden dureh sehriftliehen Haftbefehl (Auslieferungshaftbefehl) dcs Obcrlandes­gerichts angeordnet.

(2) In dem Auslieferungshaftbefehl sind anzuflihren

540

_ e Gesetz tiber dl .. Intern. RechtshiIfe in Strafsachen (IRG) 3.

1. der Verfolgte,

2. der Staat, an den die Auslieferung nach den Umstanden des Falles in Betracht kommt,

3. die delll Verfolgten zur Last gclegte Tat,

4. das Ersuchen oder im bll des § 16 Abs. 1 Nr. 2 die Tatsachen, aus denen sich ergibt, da{~ der Verfolgte einer Tat, die zu seiner Auslicferung AnL1{~ geben bnn, dringend ventichtig ist, s()wie

5. der Haftgrund und die Tatsachen, aus denen er sich ergibt.

§ 18 Steckbrief

Liegt ein Auslicferungshaftbefehl vor und ist der Aufemhalt des Ver­folgten nicht bekannt, so kann die Staatsanwaltschaft bei dem Oberlan­desgericht einen Steckbrief erlassen.

§ 19 Vorlaufige Festnahme

Licgen die Voraussetzungen eines Auslieferungshaftbefehls vor, so sind dic Staatsanwaltschaft und die Beamten des Polizeidienstes zur vorlaufi­gen Festnahme bcfugt. Untcr den Voraussetzungen des § 127 Abs. 1 Satz 1 der Strafproze~ordnung ist jcdermann zur vorlaufigcn Festn,lhme berechtigt.

§ 20 Bekanntgabe

(1) Wird der Verfolgtc festgcnommen, so ist ihm dcr Grund der Fest­nahme mitzuteilcn.

(2) Liegt ein Auslicfcrungshaftbcfchl vor, so ist er dem Verfolgten unverziiglich bckanntzugcbcn. Der Verfolgtc crhalt eine Abschrift.

§ 21 Verfahren nach Ergreifung auf Grund

eines Auslieferungshaftbefehls

(1) Wird der Verfolgte auf Grund eines Auslieferungshaftbefehls ergrif­fen, so ist er unverziiglich, spatestens am Tag naeh der Ergreifung, dem Richter des naehsten Amtsgerichts vorzuflihren.

541

3~Gesetz tiber die intern. Rechtshilfe in Strafs .. !n (IRG)

(2) Der Richter beim Amtsgericht vernimmt den Verfolgten unverztig­lich nach der Vorftihrung, spatestens am nachsten Tag, tiber seine person­lichen Verhaitnisse, insbesondere tiber seine Staatsangehorigkeit. Er weist ihn darauf hin, da~ er sich in jeder Lage des Verfahn:ns cines Bei­stands (§ 40) bedicnen kann und da~ cs ihm frcistcht, sich ZlI dn ihm zlIr Last gelegten Tat zu :iu~ern oder dazll nicht JUSi',usagcn, Sodann bdragt er ihn, ob und gegebenenfal\s aus welchen Griindcn cr Einwendllngcn ge­gen die Auslicferung, gegen den Auslieferungshaftbefehl odcr gcgcn dcs­sen Vollzug~e.rheben will. 1m Fall des § 16 Abs. I Nr. 2 erstrcckt sich die Vernehmung auch auf den Gegenstand der Bcschuldigung; ill dell tiki­gen Fallen sind die Angaben, die der Verfolgte von sich aus hierzu macht, in das Protokoll aufzunehmen.

(3) Ergibt sich bei der Vernehmung, da~

1. der Ergriffene nicht die in dem Auslieferungshaftbefehl bezeichnete Person ist,

2. der Auslieferungshaftbefehl aufgehoben ist oder

3. der Vollzug des Auslieferungshaftbefehls ausgesetzt ist,

so ordnet der Richter beim Amtsgericht die Freilassung an.

(4) 1st der Auslieferungshaftbefehl aufgehoben oder der Vollzug ausge­setzt, so ordnet der Richter beim Amtsgericht an, daB der Verfolgte bis zur Entscheidung des Oberlandesgerichts festzuhalten ist, wenn

1. die Voraussetzungen eines neuen Auslieferungshaftbefehls wegen der Tat vorliegen oder

2. Griinde dafur vorliegen, den Vollzug des Auslicferungshaftbefehls anzuordnen.

Die Staatsanwaltschaft bei dem Oberlandesgericht fuhrt unverztiglich die Entscheidung des Oberlandesgerichts herbei.

(5) Erhebt der Verfolgte gegen den Auslieferungshaftbefehl oder gegen dessen Vollzug sonstige Einwendungen, die nicht offensichtlich unbe­grundet sind, oder hat der Richter beim Amtsgericht Bedenken gegen die Aufrechterhaltung der Haft, so teilt er dies der Staatsanwaltschaft bei dem Oberlandesgericht unverztiglich und auf dem schnellsten Weg mit. Die Staatsanwaltschaft bei dem Oberlandesgericht fUhrt unverzuglich die Entscheidung des Oberlandesgerichts herbei.

(6) Erhebt der Verfolgte gegen die Auslieferung keine Einwendungen, so belehrt ihn der Richter beim Amtsgericht tiber die Moglichkeit der vereinfachten Auslieferung und deren Rechtsfolgen (§ 41) und nimmt sodann des sen Erklarung zu Protokoll.

542

Gesetz tiber d' .tern. Rechtshilfe in St~afsachen (IRG) 3.

(7) Die Entscheidung des Richters beim Amtsgericht ist unanfechtbar. Die Staatsanwaltschaft bei dem Oberlandesgericht kann die Freilassung des Verfolgten anordnen.

§22 Verf:thren nach vorEiufiger Festn:thme

(I) Wird der VerlolgtL' vor1:iulig fcsq~enOI1lIllCn, so ist er unverztiglich, sp;itL'stL'IlS .1111 Tag n.lCh der Fc~tn;lhl11L', dL'1ll Richter dcs n;khstcn Amts­gl'ridlt \ VOI"l',U fii h n·ll.

I (2) Uer Richter bcim AlIlhgcricht VL'rnillll11t den VerfolgtL'1l ullverziig-

lich nach der Vorftihrung, spatestens am nachsten Tag, tiber seine person-' lichen V crhaltnisse, insbesondere tiber seine Staatsangehorigkeit. Er wcist ihn darauf hin, da~ er sich in jeder Lage des Verfahrens eines Bei­stands (§ 40) bedienen kann und da~ es ihm freisteht, sich zu der ihm zur Last gelegten Tat zu au~ern oder dazu nicht auszusagen. Sodann befragt er ihn, ob und gegebenenfalls auS welchen Grunden er Einwendungen ge­gen die Auslieferung oder gegen seine vorlaufige Festnahme erheben will. § 21 Abs. 2 Satz 4 gilt entsprechend.

(3) Ergibt sich bei der Vernehmung, da~ der Ergriffene nicht die Per­son ist, auf die sich das Ersuchen oder die Tatsachen im Sinne des § 17 Abs. 2 Nr. 4 beziehen, so ordnet der Richter beim Amtsgericht seine Freilassungan. Andernfalls ordnet der Richter beim Amtsgericht an, daB der Verfolgte bis zur Entscheidung des Oberlandesgerichts festzuhalten ist. § 21 Abs. 4 Satz 2, Abs. 6 und 7 gilt entsprechend.

§23 Entscheidung tiber Einwendungen des Verfolgten

Ober Einwendungen des Verfolgten gegen den Auslieferungshaftbe­fehl oder gegen dessen Vollzug entscheidet das Oberlandesgericht.

§24 Aufhebung des Auslieferungshaftbefehls

(1) Der Auslieferungshaftbefehl ist aufzuheben, sobald die Vorausset­zungen der vorlaufigen Auslieferungshaft oder der Auslieferungshaft nicht mchr varliq~en ada die Auslicferung ftir unzuIassig erklart wird.

(2) Der Auslieferungshaftbefehl ist auch aufzuheben, wenn die Staats­anwaltschaft bei dem Oberlandesgericht dies beantragt. Gleichzeitig mit dem Antrag ordnet sic die Freilassung des Verfolgten an.

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§25 Aussetzung des Vollzugs des Auslieferungshaftbefehls

(1) Das Oberlandesgericht kann den Vollzug des Auslieferungshaftbe­fehls allssetzen, wenn weniger einschneidende Ma~nahmen die Gewahr bieten, da~ der Zweck der vorlallfigen Auslieferungshaft oder der AlIslie­ferungshaft auch durch sie errcicht wird.

(2) § 116 Abs. 1 Satz 2, Abs. 4, §§ 116 a, 123 und 124 Abs. \, Abs. 2 Satz 1, Abs. 3 der Strafproze~ordnung sowie § 72 Abs. \,3 Satz 1 des JlI~end­gerichtsgesetzes gel ten entsprechend.

§26 Haftprlifung

(1) Befindet sich der Verfolgte in Auslieferungshaft, so entscheidet das Oberlandesgericht iiber deren Fortdauer, wenn der Verfolgte seit dem Tag der Ergreifung, der vorlaufigen Festnahme oder der letzten Entschei­dung iiber die Fortdauer der Haft insgesamt zwei Monate zum Zweck der Auslieferung in Haft ist. Die Haftpriifung wird jeweils nach zwei Monaten wiederholt. Das Oberlandesgericht kann anordnen, daB die Haftpriifung innerhalb einer kiirzeren Frist vorgenommen wird.

(2) Befindet sich der Verfolgte in vorlaufiger Auslieferungshaft oder in einstweiliger Unterbringung in einem Erziehungsheim (§ 71 Abs. 2 des Jugendgerichtsgesetzes), so gilt Absatz 1 entsprechend.

§27 Vollzug der Haft

(1) Fiir die vorlaufige Auslicferungshaft, die Auslieferungshaft und die Haft auf Grund einer Anordnung des Richters beim Amtsgericht gelten die Vorschriften der StrafprozeBordnung und, soweit der Verfolgte ein Jugendlicher oder ein Heranwachsender ist, die des Jugendgerichtsgeset­zes iiber den Vollzug der Untersuchungshaft entsprechend.

(2) Die Staatsanwaltschaft bei dem Oberlandesgericht bestimmt die Anstalt, in welcher der Verfolgte zu verwahren ist.

(3) Die richterlichen Verfiigungen trifft der Vorsitzende des zustandi­gen Senats des Oberlandesgerichts.

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§ 28 Vernehmung des Verfolgten

(1) Nach dem Eingang des Auslieferungsersuchens beantragt die Staats­anwaltschaft bei dem Oberlandesgericht die Vernehmung des Verfolgten bei dern Arntsgericht, in dessen Bezirk er sich bcfindet.

(2) Del' Richter beirn Amts~cricht vernimmt den Verfolgtcn i.ibcr seine pl'l'siinlicilen Verh:iltnisse, insbesondere i.iber seine Staatsangehorigkeit. Er weist ihn darauf hin, da~ er sich in jcder Lage des Verfahrens cines Bei­stands (§ 40) bedienen bnn und da{~ es ihm freisteht, sich zu der ihm zur Last gelegten Tat zu au Bern oder dazu nicht auszusagen. Sodann befragt er ihn, ob und gegebenenfalls aus welchen Grunden er Einwendungen ge­gen die Auslieferung erheben will. Zu dem Gegenstand der Beschuldi­gung ist der Verfolgte nur zu vernehmen, wenn die Staatsanwaltschaft bei dem Oberlandesgericht dies beantragt; in den ubrigen Fallen sind die Angaben, die der Verfolgte von sich aus hierzu macht, in das Protokoll

aufzunehmen. (3) Erhebt der Verfolgte gegen die Auslieferung keine Einwendungen,

so belehrt ihn der Richter beim Amtsgericht iiber die Moglichkeit der vereinfachten Auslieferung und deren Rechtsfolgen (§ 41) und nimmt sodann dessen Erktirung zu Protokoll.

§ 29 Antrag auf Entscheidung liber die ZuHissigkeit der Auslieferung

(1) H,lt sich der Verfolgte nicht mit der vereinfachten Auslieferung (§ 4\) einverstanden erklart, so beantragt die Staatsanwaltschaft bei dem Oberlandesgericht die Entscheidung des Oberlandesgerichts dariiber, ob

die Auslicferung zulassig ist. (2) Die Staatsanwaltschaft bei dem Oberlandesgericht kann die Ent­

schcidung des Oberlandesgerichts auch dann beantragen, wenn sich der Verfolgte mit der vcreinfachten Auslieferung einverstanden erklart hat.

§30 Vorbereitung der Entscheidung

(1) Reichen die Auslieferungsunterlagen zur Beurteilung der Zulassig­keit der Auslieferung nicht aus, so entscheidet das Oberlandesgericht erst, wenn dem ersuchenden Staat Gelegenheit gegeben worden ist, erganzende Unterlagen beizubringen. Fi.ir ihre Beibringung kann eine

Frist gesetzt werden.

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(2) Das Oberlandesgericht kann den Verfolgten vernehmen. Es kann sonstige Beweise liber die ZuHissigkeit der Auslieferung erheben. 1m Fall des § 10 Abs. 2 erstreckt sich die Beweiserhebung liber die ZuIassigkeit der Auslieferung auch darauf, ob der Verfolgte der ihm zur Last gcIegten Tat hinreichend verdachtig erscheint. Art und Umfang der Beweisauf­nahme bestimmt das Oberlandesgericht, ohne durch Amrage, Vcrzichte oder friihere Beschllisse gebundcn zu scin.

(3) Das Obcrlandcsgericht k.tnn cinc mlindlichc Vl'rh~tndlullg durch­fiihren.

§3I Durchfiihrung der mtindlichen Verhancllung

(1) Von Ort und Zeit der miindlichen Verhandlung sind die Staatsan­waltschaft bei dem OberIandesgericht, der Verfolgte und sein Beistand (§ 40) zu benachrichtigen. Bei der miindlichen Verhandlung muB ein Ver­treter der Staatsanwaltschaft bei dem Oberlandesgericht anwesend sein.

(2) Befindet sich der Verfolgte in Haft, so ist er vorzufiihren, es sci denn, daB er auf die Anwesenheit in der Verhandlung verzichtet hat oder daB der Vorflihrung weite Entfernung, Krankheit oder andere nicht zu beseitigende Hindernisse entgegenstehen. Wird der Verfolgte zur miindli­chen Verhandlung nicht vorgeflihrt, so muG ein Beistand (§ 40) seine Rechte in der Verhandlung wahrnehmen. In diesem Fall ist ihm flir die mlindliche Verhandlung ein Rechtsanwalt als Beistand zu bestellen, wenn er noch keinen Beistand hat.

(3) Befinpet sich der Verfolgte auf freiem FuB, so kann das Oberlandes­gericht sein personliches Erscheinen anordncn. Erscheint der ordnungs­gemaB geladene Verfolgte nicht und ist sein Fernbleiben nicht geniigend entschuldigt, so kann das Oberlandesgericht die Vorflihrung anordnen.

(4) In der miindlichen Vcrhandlung sind die anwesenden Beteiligten zu horen. Uber die Verhandlung ist ein Protokoll aufzunehmen.

§32 Entscheidung tiber die Zulassigkeit

Der BeschluB liber die Zulassigkeit der Auslieferung ist zu begrlinden. Er wird der Staatsanwaltschaft bei dem Oberlandesgericht, dem Verfolg­ten und seinem Beistand (§ 40) bekanntgemacht. Der Verfolgte crhalt eine Abschrift.

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§33 Erneute Entscheidung tiber die ZuHissigkeit

(1) Treten n~lch der Entscheidung des Oberlandcsgerichts iiber die Zu­I:issigkeit der Auslicferung Umst;inde ein, die eine andere Entscheidung tiber die ZuIassigkeit zu begriiriden geeignet sind, so entscheidet das ()hcrl.lIldl'sgl'richl von Amls Wl'gcn, auf Amrag der Staatsanwaltschaft Iwi dl'lll Obcrl.llldl'sgericht Oller auf Antrag des Verfolgten erneut iiber die ZlIllwgkcit dcr AlIslicfcrllng.

(2) Werdcll n.tch tier Fl1lschcidung dl's Obl'rlantlesgerichts Umst;inde bck.tnl1t, die cine andere Entscheidung tiber die Zutissigkcit zu begriin­den geeignet sind, so bnn das Oberlandesgericht erneut iiber die Zulas-sigkeit der Auslieferung entscheiden.

(3) § 30 Abs. 2 und 3, §§ 31,32 gelten entsprcchend. (4) Das Oberlandesgericht kann den Aufschub der Auslieferung anord-

nen.

§34 Haft zur Durchfiihrung cler Auslieferung

(1) Befindet sich der Verfolgte nach der Bewilligung der Auslieferung auf freiem FuB und ist die Durchflihrung der Auslieferung nicht auf an­dere Weise gewahrleistet, so ordnet das Oberlandesgericht durch schrift­lichen Haftbefehl die Haft zur Durchflihrung der Auslieferung an, sofern nicht der Vollzug eines bestehenden Auslieferungshaftbefehls (§ 17) ange-

ordnet werden kann. (2) In dem Haftbefehl sind anzufiihren

1. der Verfolgte, 2. die Entscheidung, durch welche die Auslieferung bewiIligt worden

ist, sowie 3. der Haftgrund und die Tatsachcn, aus dcnen er sich ergibt.

(3) Die §§ 18 bis 20 und 23 bis 27 gelten entsprechend.

§35 Erweiterung der Auslieferungsbewilligung

(1) 1st die Auslieferung durchgeflihrt und ersucht der Staat, an den der Verfolgte ausgclicfert worden ist, wegen einer weiteren Tat um Zustim­mung zur Verfolgung otler zur Vollstreckung einer Strafe oder einer son­stigen Sanktion, so kann die Zustimmung erteilt werden, wenn

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3. Gesetz tiber die intern. Rechtshilfe in Strafsachen (IRG) •

1. nachg;wiesen worden ist, da~ der Ausgelieferte Gelegenheit hatte, sich zu dem Ersuchen zu au~ern, und das Oberlandesgericht entschieden hat, da~ wegen der Tat die Auslieferung zuIassig w;ire, oder

2. nachgewiesen worden ist, da~ der Ausgelieferte sich zu Protokoll eines Richters des erstchenden Staates mit der Verfolgung oder mit der Vollstreckung der St~afe oder der sonstigen Sanktion einvcrstandcn erktirt hat, und wegen der Tat die Auslieferung zubssig w:ire. .

Wird um Zustimmung zur Verfolgung ersucht, so geni.igt anstcllc cines Haftbefehls oder einer Urkunde mit entsprechender Rechtswirkung (§ 10 Abs. 1 Satz 1) die Urkunde einer zustandigen Stelle des ersuchenden Staa­tes, aus der sich die dem Verfolgten zur Last gelegte Tat ergibt.

(2) Fur das Verfahren gelten § 29 mit der Ma~gabe, da~ an die Stelle des Einverstandnisses des Verfolgten mit der vereinfachten Auslieferung sein Einverstandnis im Sinne des Absatzes 1 Satz 1 Nr. 2 tritt, sowie § 30 Abs. 1, Abs. 2 Satz 2 bis 4, Abs. 3, § 31 Abs. 1 und 4, §§ 32,33 Abs. 1 und 2 ent­sprechend. Zustandig fur die gerichtliche Entscheidung nach Absatz 1 Satz 1 Nr. 1 ist das Oberlandesgericht, das im Auslieferungsverfahren zur Entscheidung uber die Zulassigkeit der Auslieferung zusrandig war.

§36 Weiterlieferung

(1) 1st die Auslieferung durchgefuhrt und ersucht eine zustandige Stelle eines auslandischen Staates wegen der Tat, deremwegen die Auslieferung bewilligt worden ist, oder wegen einer weiteren Tat um Zustimmung zur Weiterlieferung, zur Dberstellung des Ausgelieferten zum Zweck der Vollstreckung einer Strafe oder einer sonstigen Sanktion oder zur Abschiebung, so gilt § 35 Abs. 1 Satz 1, Abs. 2 entsprechend mit der Ma~­gabe, da~ wegen der Tat die Auslieferung an den Staat, an den der Ausge­Iieferte weitergeliefert oder uberstellt werden soli, zulassig sein mu~te.

(2) 1st die Auslieferung noch nicht durchgefuhrt, so kann auf ein Ersu­chen der in Absatz 1 bezeichneten Art die Zustimmung erteilt werden, wenn wegen der Tat die Auslieferung an den Staat, an den der Ausgelie­ferte weitergeliefert oder uberstellt werden solI, zulassig ware. Fur das Verfahren gelten die §§ 28 bis 33 entsprechend.

§37 Voriibergehende Auslieferung

(1) Wird die bewilligte Auslieferung aufgeschoben, weil im Gcltungs­bereich dieses Gesetzes gegen den Verfolgten ein Strafverfahren gefuhrt

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Gesetz tiber die intern. Rechtshilfe in Strafsachen (IRG) 3.

wird oder eine Freiheitsstrafe oder eine freiheitsentziehende Ma~tegcl der Besserung lind Sicherung zu vollstrecken ist, so kann der Verfolgte vori.ibergehcnd ;lusgclicfert werden, wenn cine zustandige Stelle des ersu­chendcn Sta;ltes hierum ersllcht lind zusichert, ihn bis zu cinem bestimm­ten Zcitpunkt oder auf Anforderung zuruckzulicfern.

(2) A lIf die Riicklicfcn,n~ dcs V crfolgtcn \<.ann vcrzichtet werden. (.I) \'\-'inl in dCIll Verfahrcl1, desscntwegen die Auslicfcrung aufgescho­

bCII wlilde, zeitij.;e Freiheitsstrafe Otler Gcldstrafc verhangt, so winl die in delll ersuchcndclI St;l,lt bis zur Rucklieferung oder bis z.um Verzicht auf die RuckI icferung erlittene heiheitsentziehung darauf angerechnet. 1st die Alislieferung aufgeschoben worden, weil gegen den Verfolgten zeitige Freiheitsstrafe zu vollstrecken ist, so gilt Satz 1 entsprechend.

(4) Die fur die Anrechnung nach Absatz 3 zustandige Stelle bestimmt nach Anhorung der Staatsanwaltschaft bei dem Oberlandesgericht den Ma~stab nach ihrem Ermessen: Sie kann anordnen, da~ die Anrechnung

ganz oder zum Teil unterbleibt, wenn

-

1. die in dem ersuchenden Staat erlittene Freiheitsentziehung ganz oder zum Teil auf eine dort verhangte oder zu vollstreckende Strafe oder sonstige Sanktion angerechnet worden ist oder

2. die Anrechnung im Hinblick auf das Verhalten des Verfolgten nach

der Dbergabe nicht gerechtfertigt ist.

§38 Herausgabe von Gegenstanden im Auslieferungsverfahren

(1) 1m Zusammenhang mit einer Auslieferung kiinnen an den ersu­chenden Staat ohne besonderes Ersuchen Gegenstande herausgegeben

werden, 1. die als Beweismittel fur das auslandische Verfahren dienen konnen

oder 2. die der Verfolgte oder ein Beteiligter durch die Tat, derentwegen die

Auslieferung bewilligt worden ist, oder ,lIs Entgelt fUr solchc Gcgenstan-

de erlangt hat. (2) Die Herausgabe ist nur zulassig, wenn gewahrleistet ist, da~ Rechte

Dritter unberuhrt bleiben und unter Vorbehalt herausgegebene Gegen­stande auf Verlangcn unverzuglich zuruckgegeben werden.

(3) Unter den Voraussctzungen dcr Absatze 1 und 2 konnen Gegen­st:inde auch dann hcrausgegeben werden, wenn die bewilligte Ausliefe­rung aus tatsachlichcn Grunden nicht vollzogen werden kann.

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(4) Uber die Zuhissigkeit der Herausgabe entscheidet auf Einwendun­gen des Verfolgten, auf Antrag der Staatsanwaltschaft bei dem Oberlan­desgericht oder auf Antrag desjenigen, der geltend macht, er wlirde durch die Herausgabe in seinen Rechten verletzt werden, das Oberlandesge­richt. Erklart das Oberlandesgericht die Herausgabe fiir zu\assig, so kann es demjenigen, der seine Entscheidung beantragt hat, die der Staatskassc erwachsenen Kosten auferlegen. Die Herausgabe darf nicht bewilligt WlT­

den, wenn das Oberlandesgericht sie fiir unzulassig erklart hat.

§J9 Beschlagnahme und Durchsuchung

(I) Gegenstande, deren Herausgabe an einen aus\;indischen Staat in Betracht kommt, konnen, auch schon vor Eingang des Auslieferungser­suchens, beschlagnahmt oder sonst sichergestellt werden. Zu diesel11 Zweck kann auch eine Durchsuchung vorgenommen werden.

(2) 1st noch kein Oberlandesgericht mit dem Auslieferungsverfahren befaBt, so werden die Beschlagnahme und die Durchsuchung zunachst von dem Amtsgericht angeordnet, in dessen Bezirk die Handlungen vor­zunehmen sind.

(3) Bei Gefahr im Verzug sind die Staatsanwaltschaft und ihre Hilfsbe­amten (§ 152 des Gerichtsverfassungsgesetzes) befugt, die Beschlagnahme und die Durchsuchung anzuordnen.

§ 40

Beistand

(1) Der Verfolgte kann sich in jeder Lage des Verfahrens cines Bei­stands bedienen.

(2) Oem Verfolgten, der noch keinen Beistand gewahlt hat, 1st ein Rechtsanwalt als Beistand zu bestcllen, wenn

1. wegen der Schwierigkeit der Sach- oder Rechtslage die Mitwirkung eines Beistands geboten erscheint,

2. ersichtlich ist, daB der Verfolgte seine Rechte nicht selbst hin­reichend wahfnehmen kann, oder

3. der Verfolgte noch nicht achtzehnJahre alt ist. (3) Die Vorschriften des 11. Abschnittes des 1. Buches der Strafproze~­

ordnung mit Ausnahme der §§ 140, 141 Abs. 1 bis 3 und § 142 Abs. 2 gel­ten entsprechend.

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§ 41 Vereinfachte Auslieferung

3.

(1) Die A uslieferung eincs Ausl:1nders, gq;en den ein A uslicfcrungs­h~1fthefehl besteht, kann auf Ersuchen einer zustandigen Stelle cines aus­l:indischcn SLutcs um Auslicfcrung ocler UI11 vorlaufige I~estnahme zum ZWl'ck tier Auslidcrung ohnc Durchfiihrun!!, dcs fiirJl11ichen Auslicfe­rungsvcrfahrens hcwilligt werden, wcnn sich der Verfolgte nach Ikleh­rung zu richtcrlichcJl1 Prowknll mit dieser vereinfachten Auslicferung

einverst~1I1den erkl:irt hat. (2) Im fall des Absatzes 1 bnn auf die Beachtung der Voraussetzungen

des § 11 verzichtet werden, wenn sich der Verfolgte nach Bclehrung 7U

richterlicheI11 ProlOkoll dal11it einverstanden erklart hat.

(3) Das Einverst;indnis kann nicht widerrufen werden.

(4) Auf Antrag der Staatsanwaltschaft bei dem Oberlandesgericht bclehrt der Richter beim Amtsgericht den Verfolgten iiber die Mijglichkeit der vereinfachten Auslieferung und deren Rechtsfolgen (Absatz 1 bis 3) und nimmt sodann dessen Erklarung zu Protokoll. Zustandig ist der Rich­ter bei dem Amtsgericht, in dessen Bezirk sich der Verfolgte befindet.

§ 42 Anrufung des Bundesgerichtshofes

(1) Halt das Oberlandesgericht cine Entscheidung des Bundesgerichts­hofes flir geboten, urn eine Rechtsfragc von grundsatzlicher Bedeutung zu klaren, oder will es von einer Entscheidung des Bundesgerichtshofes oder einer nach dem Inkrafttreten dieses Gesetzes ergangenen Emschei­dung eines anderen Oberlandesgerichts liber eine Rechtsfrage in Auslicfe­rungssachen abweichen, $0 begrlindet es seine Auffassung und holt die Entscheidung des Bundesgerichtshofes iiber die Rechtsfrage ein.

(2) Die Entscheidunh des gundcsgcrichtshofes wird auch cingeholt, wenn der Generalbundesanwalt oder die Staatsanwaltschaft bei dem Oberlandesgericht dies zur Klarung einer Rechtsfrage beantragt.

(3) Ocr Bundesgcrichtshof gibt dem Verfolgten Gclegenheit zur Aulk rung. Die Entscheidung crgeht ohne miindliche Verhandlung.

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Dritter Tei! Durchlieferung

§ 43 Zuliissigkeit der Durchlieferung

(1) Ein Aus];indcr, der in cineOl ausl:indischcn Sta.lt Wl'gl'1l cillcr Tat. die dort mit Strafe bedroht ist, vcrfolgt wird odL'l" vcruncilt wordcll ist, kann auf Ersuchen einer zustandigen Stelle dieses Staatcs zur Vcrfolgll llg oder zur Vollstreckung einer wegen der Tat verhangten Strafe oticr 5011-

stigen Sanktion durch den Geltungsbereich dieses Gesetzes durchgeliefert werden.

(2) Ein Auslander, der in einem auslandischen Staat wegen einer Tat, die dort mit Strafe bedroht ist, verurteilt worden ist, kann auf Ersuchen einer zustandigen Stelle eines anderen auslandischen Staates, der die VolI­streckung ub.ernommen hat, zur Vollstreckung einer wegen der Tat ver­hangten Strafe' oder sonstigen Sanktion durch den Geltungsbereich dieses Gesetzes durchgeliefert werden.

(3) Die Durchlieferung ist nur zulassig, wenn

1. die dem Ersuchen zugrunde liegende Tat nach deutschem Recht mit Freiheitsstrafe bedroht ist oder bei sinngema~er U mstellung des Sachver­haltes mit Freiheitsstrafe bedroht ware und

2. wegen der dem Ersuchen zugrunde liegenden Tat a) im Fall des Absatzes 1 die in § 10 Abs. 1 Satz 1 oder

b) im Fall des Absatzes 2 die in § 10 Abs. 3 Nr. 1 bis 3 bezeichneten Unterlagen vorgelegt worden sind.

Wird urn Durchlieferung wegen mehrerer Taten ersucht, so geniigt es, wenn die Voraussetzungen des Satzes 1 fur mindestens eine der delll Ersu­chen zugrunde liegenden Taten vorliegen.

(4) Fur die Durchlieferung gelten die §§ 6 bis 8 entsprechend.

§ 44 Zustandigkeit

(1) Die gerichtlichen Entscheidungen erla~t das Oberlandesgericht. § 13 Abs. 1 Satz 2, Abs. 2 gilt entsprechend.

(2) Ortlich zustandig ist

1. im Fall der Durchlieferung auf dem Land- oder Seeweg das Ober­landesgericht, in dessen Bezirk der Verfolgte voraussichtlich in den Gel­tungsbereich dieses Gesetzes uberstellt werden wird,

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2. im Fall der Durchlieferung auf dem Luftweg das Oberlandesgericht, in dessen Bezirk die erste Zwischenlandung stattfinden solI.

(3) 1st eine Zustandigkeit nach Absatz 2 Nr. 2 nicht begriindct, so ist das Obcrlandesgcricht Frankfurt am Main zustandig.

§ 45 Durchlicferungsvcrfahrcn

(1) Erscheint die Durchlieferung zulassig, so wird der Verfolgte zu ihrer Sicherung in Haft gehalten.

(2) Die Haft wird durch schriftlichen Haftbefehl (Durchlieferungshaft­befehl) des Oberlandesgerichts angeordnet. § 17 Abs. 2, § 30 Abs. 1 gelten entsprechend.

(3) Die Durchlieferung darf nur bewilligt werden, wenn ein Durchlie-ferungshaftbefehl erlassen worden ist. I

(4) Der Durchlieferungshaftbefehl ist dem Verfolgten unverziiglich nach seinem Eintreffen im Geltungsbereich dieses Gesetzes bekanntzuge­ben. Der Verfolgte erhalt eine Abschrift.

(5) Kann die Durchlieferung voraussichtlich nicht bis zum Ablauf des auf die Uberstellung folgenden Tages abgeschlossen werden, so ist der Verfolgte unverziiglich, spatestens am Tag nach seinem Eintreffen im Geltungsbereich dieses Gesetzes, dem Richter des nachsten Amtsgerichts vorzufiihren. Der Richter beim Amtsgericht vernimmt ihn iiber seine personlichen Verhaltnisse, insbesondere iiber seine Staatsangehorigkeit. Er weist ihn darauf hin, da~ er sich in jeder Lage des Verfahrens eines Bei­stands (§ 40) bedienen kann und da~ es ihm freisteht, sich zu der ihm zur Last gelegten Tat zu au~ern oder dazu nicht auszusagen. Sodann befragt er ihn, ob und gegebenenfalls aus welchen Griinden er Einwendungen ge­gen den Durchlieferungshaftbefehl oder gegen die Zulassigkeit der Durchliefcrung erheben will. Erhebt der Verfolgte Einwendungen, die nicht offensichtlich unbegriindet sind, oder hat der Richter beim Amtsge­richt Bedenken gegen die Aufrechterhaltung der Haft oder gegen die Zulassigkeit der Durchlieferung, so teilt er dies der Staatsanwaltschaft bei dem Oberlandesgericht unverziiglich und auf dem schnellsten Weg mit. Diese fiihrt unverziiglich die Entscheidung des Oberlandesgerichts her-bei. .

(6) Die §§ 24,27,33 Abs. 1,2 und 4, §§ 40 und 42 gelten entsprechend, ebenso § 26 Abs. 1 mit der Ma~gabe, da~ an die Stelle der Frist von zwei Monaten eine Frist von einem Monat tritt.

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it e 3. Gesetz tiber die intern. Rechtshilfe in Strafsachen (IRG)

(7) Die bei einer Durchlieferung iibernomme~en Gegenstande konnen ohne besonderes Ersuchen gleichzeitig mit der Uberstellung des Verfolg­ten herausgegeben werden.

§ 46 Durchlieferung bei voriibergehender Auslieferung

(1) 1st die Durchlieferung bewilligt worden, so kann der Verfolgte auf Ersuchen einer zustandigen Stelle des ersuchenden Staates zllllachst zum Vollzug einer voriibergehenden Auslieferung und ciner nachfolgenden Riicklieferung durch den Geltungsbereich dieses Gesetzes durchgeliefert werden.

(2) 1m Fall des Absatzes 1 ist der Durchlieferungshaftbefehl allch auf die weiteren Uberstellungsfalle zu erstrecken.

§ 47 Unvorhergesehene Zwischenlandung bei Beforderung

auf dem Luftweg

(1) Hat eine zustandige Stelle eines auslandischen Staates angekiindigt, sie werde einen Auslander zum Zweck der Auslieferung auf dem Luftweg ohne Zwischenlandung durch den Geltungsbereich dieses Gesetzes befor-

o dern lassen, und mitgeteilt, daB die gemaB § 43 Abs. 3 Satz 1 Nr. 2, Satz 2 erforderlichen Unterlagen vorliegen, so wird die Ankiindigung im Fall einer unvorhergesehenen Zwischenlandung als Ersuchen um Durchliefe­rung behandelt.

(2) Liegen die Voraussetzungen des Absatzes 1 vor, so sind die Staatsan­waltschaft und die Beamten des Polizeidienstes zur vorlaufigen Festnah­me befugt.

(3) Der Verfolgte ist unverziiglich, spatestens am Tag nach der Festnah­me, dem Richter des nachsten Amtsgerichts vorzufiihren. Der Richter beim Amtsgericht vernimmt ihn iiber seine personlichen Verhaltnisse, insbesondere uber seine Staatsangehorigkeit. Er weist ihn darauf hin, daB er sich in jeder Lage der Verfahrens eines Beistands (§ 40) bedienen kann und daB es ihm freisteht, sich zu der ihm zur Last gelegten Tat zu au Bern oder dazu nicht auszusagen. Sodann befragt er ihn, ob und gegebenenfalls aus welchen Grunden er Einwendungen gegen die Durchlieferung oder dagegen erheben will, daB er festgehalten wird.

(4) Ergibt sich bei der Vernehmung, daB der Vorgefuhrte nicht die in der Ankundigung bezeichnete Person ist, so ordnet der Richter beim

554

It Gesetz tiber die intern. Rechtshilfe in Strafsachen (IRG) 3.

Amtsgericht seine Freilassung an. Andernfalls ordnet der Richter beim Amtsgericht an, daB der Verfolgte bis zur Entscheidung des Oberlandes­gerichts festzuhalten ist. § 21 Abs. 4 Satz 2, Abs. 7 gilt entsprechend.

(5) Der Durchlieferungshaftbefehl kann schon vor Eingang der in § 43 Abs. 3 Satz 1 Nr. 2 aufgcfiihrten Unterlagen erlassen werden. Er ist dem Vcrfolgtcl1 unvcrzi.iglich bekanntzugeben. Der Verfolgte erhalt eine Abschrift.

(f,) Dcr Durchlicfcrungshaftbcfchl ist aufzuheben, wenn der Verfolgte seit clem Tag der vorl:iufigell hstllahme illsgesamt 45 Tage zum Zweck der Durchlieferullg in Haft ist, ohne daB die Durchlicferungsunterlagen eingegallgen sind. Hat ein auBereuropaischer Staat die Beforderung gemaB Absatz 1 angekiindigt, so betragt die Frist zwei Monate.

(7) Nach dem Eingang der U nterlagen beantragt die Staatsanwaltschaft bei dem Oberlandesgericht die Vertiehmung des Verfolgten durch den Richter des Amtsgerichts, in dessen Bezirk sich der Verfolgte befindet. § 45 Abs. 5 Satz 2 bis 4 gilt entsprechend. Sodann beantragt die Staatsan­waltschaft bei dem Oberlandesgericht die Entscheidung des Oberlandes­gerichts dariiber, ob der Durchlieferungshaftbefehl aufrechtzuerhalten ist.

(8) Die Durchlieferung darf nur bewilligt werden, wenn das Oberlan­desgericht den Durchlieferungshaftbefehl aufrechterhalten hat.

Vierter Teil Rechtshilfe durch Vollstreckung ausHindischer Erkenntnisse

§ 48 Grundsatz

Rechtshilfe kann fiir ein Verfahren in einer strafrechtlichen Angele­genheit durch Vollstreckung einer im Ausland rechtskraftig verhangten Strafe oder sonstigen Sanktion geleistet werden, wenn

1. eine nach Artikel 59 Abs. 2 des Grundgesetzes durch Gesetz gebillig­te volkerrechtliche Vereinbarung dies vorsieht oder

2. gegen einen Deutschen in einem auslandischen Staat eine freiheits­cntziehende Sanktion verhangt worden ist.

§ 49 Weitere Voraussetzungen der Zulassigkeit

(1) Die Vollstreckung ist nur zulassig, wenn

555

II

~ 3. Gesetz tiber die intern. Rechtshilfe in Strafsachen (IRG)

1. eine zustandige Stelle des auslandischen Staates unter Vorlage des vollsta'ndigen rechtskraftigen und vollstreckbaren Erkenntnisses darum ersucht hat,

2. in dem Verfahren, das dem auslandischen Erkenntnis zugrunde liq;t, dem Verurteilten rechtliches Gehor gewahrt, cine angemessene Vcrteidi­gung ermoglicht und die Sanktion von einem unahh:ingigcn Gericht oder, soweit es sich urn cine Geldbu(~e handelt, von einer Stelle verhangt worden ist, gcgen deren Entscheidung ein unabhangiges Cericht angeru­fen werden kann,

3. auch nach dem im Geltungsbereich dieses Gesetzes geltenden Recht, ungeachtet etwaiger Verfahrenshindernisse und gegebenenfalls nach sinn­gema~er Umstellung des Sachverhalts, wegen der Tat, wie sie dem ausHin­dischen Erkenntnis zugrunde liegt, eine Strafe, Ma~regel der Besserung und Sicherung oder Geldbu~e hatte verhangt werden konnen,

4. die Vollstreckung nicht nach dem im 'Geltungsbereich dieses Geset­zes geltenden Recht verjahrt ist oder bei sinngema~er Umstellung des Sachverhalts verjahrt ware und

5. keine Entscheidung der in § 9 Nr. 1 genannten Art ergangen ist.

(2) 1m Fall des § 48 Nr. 2 ist die Vollstreckung ferner nur zulassig, wenn sich der Verurteilte nach Belehrung zu Protokoll eines Richters des ersuchten oder des ersuchenden Staates oder eines zur Beurkundung von Willenserklarungen ermachtigten Berufskonsularbeamten damit einver­standen erklart hat. Das Einverstandnis kann nicht widerrufen werden. •

(3) Sieht d;s' im Geltungsbereich dieses Gesetzes geltende Recht Sank-tionen, die der im auslandischen Staat verhangten Sanktion ihrer Art nach entsprechen, nicht vor, so ist die Vollstreckung nicht zulassig.

(4) Die Vollstreckung der Anordnung des Verfalls eines Vermogens­vorteils oder der Einziehung eines Gegenstandes ist nicht zulassig. Der Entzug oder die Aussetzung eines Rechts, ein Verbot sowie der Verlust einer Fahigkeit werden nicht auf den Geltungsbereich dieses Gesetzes erstreckt.

§50 Sachliche Zustandigkeit

Uber die Vollstreckbarkeit eines auslandischen Erkenntnisses entschei­det das Landgericht. Die Staatsanwaltschaft bei dem Landgericht bereitet die Entscheidung vor.

556

Gesetz tiber die intern. Rechtshilfe in Strafsachen (IRG) 3.

§ 51 Ortliche Zustandigkeit

(1) Die ()rtliche Zustandigkeit fUr die Entscheidung liber die Voll­streckharkeit cines ausI:indischen Erkenntnisses richtet sich nach dem Wnhnsitz des Verurteilten. Hat der Verurteilte keinen Wohnsitz im Gel­tungsbcreich dicscs Gesetzes, so richtet sich die Zustandigkeit nach sei­nCI11 gew()hnlichen Aufenthaltsort oder, wenn ein solcher nicht bekannt ist, nach seinell1 letzten Wohnsitz, sonst nach dem Ort, wo er ergriffen ooer, falls eine Ergreifung nieht erfolgt, werst ermittelt wird.

(2) Solange eine Zustandigkeit nach Absatz 1 nieht festgestellt werden kann, richtet sich die Zustandigkeit nach dem Sitz der Bundesregierung.

§ 52 Vorbereitung der Entscheidung

(1) Reichen die libermittelten Unterlagen zur Beurteilung der Zulassig­keit der Vollstreckung nicht aus, so entscheidet das Gericht erst, wenn dem ersuchenden Staat Gelegenheit gegeben worden ist, erganzende

It

U nterlagen beizubringen. (2) § 30 Abs. 1 Satz 2, Abs. 2 Satz 2 und 4, Abs. 3, § 31 Abs. 1 und 4 gel­

ten entsprechend. Befindet sich der Verurteilte im Geltungsbereich dieses Gesetzes, so gelten auch § 30 Abs. 2 Satz 1, § 31 Abs. 2 und 3 entspre-

chend. (3) Der Verurteilte mu~ vor der Entscheidung Gelegenheit erhalten,

sich zu au~ern .

§53 Beistand

(1) Ocr Verurteilte kann sich in jeder Lage des Verfahrens eines Bei­

stands bedienen. (2) Oem Verurteilten, der noch keinen Beistand gewahlt hat, ist ein

Rechtsanwalt als Beistand zu bestellen, wenn 1. wegen der Schwierigkeit der Sach- oder Rechtslage die Mitwirkung

eines Beistands geboten erscheint, 2. ersichtlich ist, da~ der Verurteilte seine Rechte nicht selbst hin-

reichend wahrnehmen kann, oder 3. der Verurteilte sich au~erhalb des Geltungsbereichs dieses Gesetzes

in Haft befindet und Zweifel bestehen, ob er seine Rechte selbst hin-

reichend wahrnehmen kann.

557

-3. Gesetz iiber die intern. Rechtshilfe in Strafsachen (IRG)

• (3) Die Vors'chriften des 11. Abschnittes des I. Buches der Strafproze~-

ordnung mit Ausnahme der §§ 140, 141 Abs. 1 bis 3 und § 142 Abs. 2 gel­ten entsprechend.

§54 Umwandlung der auslandischen Sanktion

(1) Soweit die Vollstreckung des auslandischen Erkenntnisses zulassig ist, wird es fur vollstreckbar erklart. Zugleich ist die insoweit verhangte Sanktion in die ihr im deutschen Recht am meisten entsprechende Sank­tion umzuwandeln. Fur die Hohe der festzusetzenden Sanktion ist das auslandische Erkenntnis ma~gebend; sie darf jedoch das Hochstma~ der im Geltungsbereich dieses Gesetzes fur die Tat angedrohten Sanktion nicht Uberschreiten. An die Stelle dieses Hochstma~es tritt ein Hochst­ma~ von zwei Jahren Freiheitsentzug, wenn die Tat im Geltungsbereich dieses Gesetzes

1. im Hochstma~ mit Freiheitsstrafe bis zu zwei Jahren bedroht ist oder

2. als Ordnungswidrigkeit mit Geldbu~e bedroht ist, die auslandische Sanktion jedoch nach Satz 2 in eine freiheitsentziehende Sanktion umzu­wandeln ist.

(2) Bei der Umwandlung einer Geldstrafe oder einer Geldbu~e wird der in auslandischer Wahrung berechnete Geldbetrag nach dem im Zeit­punkt des auslandischen Er:kenntnisses maBgeblichen Kurswert in Deut­sche Mark umgerechnet.

(3) Bei der Umwandlung einer gegen einen ]ugendlichen oder einen Heranwachsenden verhangten Sanktion gelten die Vorschriften des J ugendgerich tsgesetzes entsprechend.

(4) Auf die festzusetzende Sanktion sind der Teil der Sanktion, der in dem ersuchenden Staat oder in einem dritten Staat gegen den Verurteilten wegen der Tat bereits vollstreckt worden ist, sowie nach § 58 erlittene Haft anzurechnen. 1st die Anrechnung bei der Entscheidung liber die Vollstreckbarkeit unterblieben oder treten danach die Voraussetzungen fur die Anrechnung ein, so ist die Entscheidung zu erganzen.

§ 55 Entscheidung liber die Vollstreckbarkeit

(1) Ober die Vollstreckbarkeit entscheidet das Landgericht durch BeschluB. Soweit das auslandische Erkenntnis fUr vollstreckbar erklart

558

e Gesetz iiber die intern. Rechtshilfe in Strafsachen (IRG) 3.

wird, sind das Erkenntnis sowie Art und Hohe der zu vollstreckenden Sanktion in der Entscheidungsformel anzugeben.

(2) Gegen den BcschluG des Landgerichts konnen die Staatsanwalt­schaft bei dem Landgericht und der Verurteiltc sofortige Beschwerde ein­Icgen. FUr das weitere Verfahren gilt § 42 entsprechend.

(3) Die rechtskrMtigen Entseheidungen des Gerichts sind dem Bundes­zentralregister durch Oberscndung einer Ausfertigung mitzuteilen. Dies gilt nicht, soweit die in dem auslandischen Erkenntnis verhangte Sank­tion in cine Gcldbu~e umgewandclt worden ist. 1st das auslandische Erkenntnis im Bundeszentralregister einzutragen, so ist die Entscheidung Uber die Vollstreckbarkeit bei der Eintragung zu vermerken. Die §§ 14 bis 18 des Bundeszentralregistergesetzes gelten entsprechend.

§ 56 Bewilligung der Rechtshilfe

(1) Die Rechtshilfe darf nur bewilligt werden, wenn das ausI;:indische Erkenntnis fUr vollstreckbar erHirt worden ist.

(2) Die Entscheidung uber die Bewilligung der Rechtshilfe ist dem Bun­deszentralregister mitzuteilen. § 55 Abs. 3 Satz 2 bis 4 gilt entsprechend.

(3) Wird die Rechtshilfe bewilligt, so darf die Tat nach deutschem

Recht nicht mehr verfolgt werden.

§57 Vollstreckung und Vollzug

(1) Nach Bewilligung der Rechtshilfe fuhrt die nach § SO Satz 2 zustan­dige Staatsanwaltschaft als Vollstreckungsbehorde die Vollstreckung

durch. (2) Die Vollstreckung des Restes einer freiheitsentziehenden Sanktion

kann zur Bewahrung ausgesetzt werden. Die Vorschriften des Strafge-

setzbuches gelten entsprechend. (3) Die Entscheidung nach Absatz 2 und die nachtraglichen Entschei­

dungen, die sich auf eine Strafaussetzung zur Bewahrung beziehen, trifft das nach § 462 a Abs. 1 Satz 1 und 2 der Strafproze~ordnung zustandige Gericht oder, falls eine Zustandigkeit nach dieser Vorschrift nicht begrlindet ist, das fur die Entscheidung nach § 50 zustandige Gericht.

(4) FUr die Vollstreckung einer Sanktion, die in eine nach dem ]ugend­gerichtsgesetz zulassige Sanktion umgewandclt worden ist, gelten die Vorschriften des Jugendgerichtsgesetzes entsprechend.

559

"

3. Gesetz tiber die intern. Rechtshilfe in Strafsachen (IRG)

(5) Der Vollzug der umgewandelten Sanktion richtet sich nach den Vorschriften, die auf eine im Geltungsbereich dieses Gesetzes verhangte Sanktion anwendbar waren.

(6) Von der Vollstreckung ist abzusehen, wenn eine zust;indige Stelle des ersuchenden Staates mitteilt, daB die Voraussetzungen flir die Voll­streckung entfallen sind.

§ 58 Haft zur Sicherung cler Vollstreckung

(1) 1st ein Vollstreckungsersuchen im Sinne des § 49 Abs. 1 Nr. 1 einge­gangen, so kann zur Sicherung der Vollstreckung einer freiheitsentzie­henden Sanktion gegen den Verurteilten die Haft angeordnet werden, wenn auf Grund bestimmter Tatsachen

1. der Verdacht begrundet ist, daB er sich dem Verfahren uber die Vo1l­streckbarkeit oder der Vollstreckung entziehen werde, oder

2. der dringende Verdacht begrundet ist, daB er in dem Verfahren uber die Vollstreckbarkeit in unlauterer Weise die Ermittlung der Wahrheit erschweren werde.

(2) Absatz 1 gilt nicht, wenn die Vollstreckung von vornherein unzu­lassig erscheint.

(3) Die Haftentscheidung trifft das fur die Entscheidung nach § 50 zustandige Gericht. Die §§ 17, 18, 20, 23 bis 27 gelten entsprechend. An die Stelle des Oberlandesgerichts tritt das Landgericht, an die Stelle der Staatsanwaltschaft bei dem Oberlandesgericht die Staatsanwaltschaft bei dem Landgericht. Gegen die Entscheidungen des Landgerichts ist die Beschwerde zulassig.

Fun/ter Teil Sonstige Rechtshilfe

§59 ZuHissigkeit cler Rechtshilfe

(1) Auf Ersu~hen einer zustandigen Stelle eines auslandischen Staates kann sonstige Rechtshilfe in einer strafrechtlichen Angelegenheit gelei­stet werden.

(2) Rechtshilfe im Sinne des Absatzes 1 ist jede Unterstutzung, die fur ein auslandisches Verfahren in einer strafrechtlichen Angelegenheit gewahrt wird, unabhangig davon, ob das auslandische Verfahren von

560

e Gesetz tiber die intern. Rechtshilfe in Strafsachen (IRG) 3.

einem Gericht oder von einer Behorde betrieben wird und ob die Rechts­hilfehandlung von eincm Gericht odcr von einer Behorde vorzunehmen

ist. (3) Die Rechtshilfe darf nur geleistet werden, wenn die Voraussetzun­

gen vorliegen, unter denen deutsche Gerichte oder Behi,>rden einander in

entsprechenden Eillen Rechtshilfe leisten kiinnten.

§ 60 Leistung der Rechtshilfe

Halt die fur die Bewilligung der Rechtshilfe zustandige Behorde die Voraussetzungen fur die Leistung der Rechtshilfe fur gegeben, so ist die fur die Leistung der Rechtshilfe zustandige Behorde hieran gebunden.

§ 61 bleibt unberuhrt.

§ 61 Gerichtliche Entscheidung

{ (1) Halt ein Gericht, das fur die Leistung der Rechtshilfe zustandig ist,. \die Voraussetzungen fur die Leistung der Rechtshilfe fUr nicht gegeben, so begrundet es seine Auffassung und holt die Entscheidung des Ober­iandesgerichts ein. Das Oberlandesgericht entscheidet Ferner auf Antrag der Staatsanwaltschaft bei dem Oberlandesgericht oder im Fall des § 66 auf Antrag desjenigen, der geltend macht, er wurde durch die Herausgabe in seinen Rechten verletzt werden, daruber, ob die Voraussetzungen fur die Leistung der Rechtshilfe gegeben sind. Fur das Verfahren vor dem Oberlandesgericht gelten die §§ 30,31 Abs. 1,3 und 4, §§ 32,33 Abs. 1,2 und 4, § 38 Abs. 4 Satz 2, § 40 Abs. 1 sowie die Vorschriften des 11. Abschnittes des L Buches der StrafprozeBordnung mit Ausnahme der §§ 140 bis 143 entsprechend. Fur das weitere Verfahren gilt § 42 entspre-

e

chend. (2) Ortlich zustandig sind das Oberlandesgericht und die Staatsanwalt­

schaft bei dem Oberlandesgericht, in deren Bezirk die Rechtshilfe gelei­stet werden soll odet geleistet worden ist. Sind Rechtshilfehandlun&en in den Bezirken verschiedener Oberlandesgerichte vorzunehmen oder vor­genommen worden, so richtet sich die Zustandigkeit danach, welches Oberlandesgericht oder, solange noch kein Oberlandesgericht befafh ist, welche Staatsanwaltschaft bei dem Oberlandesgericht zuerst mit der

Sache befaBt wurde.

561

RAPPORT NATIONAL

POUR

LAFRANCE

Par Jean~Pierre BUEB, Service Central de Prevention de la Corruption

1. L'organisation de la lutte contre la corruption au niveau national

a. Politique generale

a.l Politique adoptee par votre pays en matiere de corruption

La lutte c~ntre la corruption est constamment citee comme etant une priorite de l'action gouvemementale. L'accent a ete mis aussi bien sur la lutte que sur la prevention.

Elle repose sur :

• Un developpement de l'ethique dans l'administration comme au sein des entreprises ; • Des controles administratifs a l'echelon national (inspection generale des ministeres) et

deconcentre (les services departementaux autour du prHet) ; • Des controles par les juridictions financieres (Cour des Comptes et Chambres Regionales

des Comptes B CRC -) sur les deniers publics; • Des controles au sein de l'entreprise par des commissaires aux comptes ; • La participation des contribuables qui peuvent se substituer a la commune si celle-ci n'agit

pas pour dHendre les derniers publics dilapides a l'occasion d'affaires de corruption (article 2132-5 du code general des collectivites locales) ;

• La mise en place d'institutions specifiques visant a garantir la transparence et la regularite de la vie publique comme la commission nationale des comptes de campagne et des frnancements politiques, chargee de, veiller a la regularite du financement des campagnes electorales et des partis politiques, la commission pour la transparence financiere de la vie politique, chargee d'enregistrer les declarations de patrimoine de certains elus, et la commission de deontologie chargee de donner son avis sur Ie passage de fonctionnaires dans Ie secteur prive ;

• L'existence de trois services specialises dont deux sont interministeriels. Tout d'abord Ie Service Central de Prevention de la corruption, service interministeriel place aupres du ministere de la Justice. Mais aussi la Mission Interministerielle d'Enquete sur les Marches Publics creee en 1991 aupres du ministere des Finances chargee de constater les manquements au code des marches publics et notamment Ie delit de favoritisme. Et encore TRACFIN qui signifie Traitement du Renseignement et Action contre les Circuits Financiers Clandestins place apres du directeur general des douanes et qui reyoit les declarations de soup90ns sur les flux financiers suspects, dont ceux de la corruption et les denonce aux Parquets;

• L'existence d'une legislation penale complete incriminant dans Ie code penal et d'autres codes (commerce, travail, electoral) toutes les formes de corruption, prevoyant parfois la

1

responsabilite penale des personnes morales et sanctionnant des cas de corruption les plus graves par des peines proportionnees et dissuasives ;

• L'obligation pour l'administration de denoncer les delits dont e1le a connaissance aux Parquets en application de l'article 40 du code de procedure penale ;

• Des juridictions specialisees mettant en reuvre des methodes pluridisciplinaires au sein des poles economiques et financiers des tribunaux de grande instance.

• En application du principe de la separation des pouvoirs et d'une pratique tres claire du gouvemement a cet egard, l'absence d'intervention hierarchique et gouvemementale dans Ie deroulement des procedures judiciaires conduites a leur terme sans entraves.

a.2 Considerez vous que cela est satisfaisant ou non? Si non, quels sont les manques?

Quelles qu'elles soient, les mesures qui peuvent etre prises pour combattre la corruption seront toujours insuffisantes pour eradiquer Ie phenomene. L'appat du gain et la volonte de puissance sont des facteurs tellement "naturels" chez les hommes que Ie combat durera aussi longtemps que la race humaine existera. La lutte est toujours inegale.

Cette lutte repose sur trois axes : la prevention, la repression et l'information du public. Si les deux premiers semblent correctement pris en compte, c'est peut-etre sur Ie dernier point que les actions restent encore trop modestes. II ne sera possible de vaincre la corruption que si l'ensemble de la societe civile est consciente de l'importance du probleme et, surtout, consciente qu'elle a tout a perdre dans Ie maintien ou Ie developpement de la corruption car elle en est la seule victime, meme si elle ne s'en rend pas compte.

b. Statistiques

b.l QueUe est la mesure et les sources d'information statistique applicables it : la corruption, la cooperation internationale en cas de corruption, Ie lien entre corruption et crime organise, entre corruption et blanchiment?

Toutes les statistiques sur la corruption sont par definition fausses puisqu'il s'agit d'un phenomene cache et secret. Le cout de la corruption ou l'ampleur du phenomene ne peuvent pas etre mesures avec precision et, contrairement a ce que pretendent certains auteurs, il n'est meme pas possible d'en donner une estimation serieuse. Les deux principaux obstacles sont, pour ce qui conceme Ie cout, la mesure des couts induits et des couts indirects et, pour ce qui conceme l'ampleur du phenomene, Ie fait qu'une augmentation du nombre de condamnations peut aussi bien etre interpretee comme une aggravation du phenomene que comme une amelioration des performances de ceux qui Ie combattent.

Pour ce qui conceme la corruption et la cooperation intemationale en cas de corruption, les seules statistiques fiables sont disponibles au Ministere de la Justice. Je n'ai pas connaissance de statistiques qui permettraient, meme si elles ne sont que partielles, de montrer Ie lien entre la corruption et Ie crime organise ou entre la corruption et Ie blanchiment. Par contre, il est evident que des liens forts existent entre ces divers phenomenes. La oil Ie crime organise est present, il use necessairement de la corruption car c'est l'arme douce qu'il utilise parfois pour parvenir a ses fins. On peut donc penser qu'il existe dans notre pays des liens entre la corruption et Ie crime organise mais pas davantage que dans

2

d'autres pays comparables it plus forte raison lorsque l'on admet que Ie crime organise est devenu transnational.

b.2 Pouvez-vous fournir des statistiques? Si non pouvez-vous donner une estimation?

Les statistiques emanant du casier judiciaire national, montrent pour l'annee 1998 un total de 152 condamnations pour les delits de corruption et trafic d'influence actifs et passifs, corruption de magistrat ou de jure, concussion, prise illegale d'interet, acte d'intimidation sur une personne exer9ant une fonction publique, favoritisme. L'observation la plus significative conceme l'augmentation sensible depuis 5 ans du nombre des condamnations prononcees pour prise illegale d'interet dans la grande majorite des cas, it l'encontre des elus.

Les condamnations prononcees pour corruption dans Ie secteur prive, ont varie de 7 it 28 au cours des 5 demieres annees.

Toutes les estimations existantes actuellement ne reposent sur aucune base fiable et ne peuvent pas etre utilisees dans un document officiel.

c. Legislation repressive

c.l Quels types de comportement peuvent-ils etre sanctionnes comme des formes de corruption (pots de vin, trafic d'influence ... )? Active et passive? Secteur public et secteur prive? c.2 Ces dispositions legales sont-elles applicables si des ressortissants nationaux sont corrompus ou plus largement (etrangers, membres des organisations internationales ... )?

Le droit penal fran9ais incrimine la corruption active et passive de personnes exer9ant une fonction publique en France, Ie trafic d'influence de personnes exer9ant une fonction publique en France, la corruption active et passive d'agent public etranger, et la corruption dans Ie secteur prive.

1 -la corruption passive (article 432-11,10 du code penal) :

Elements constitutifs : • Qualite de l'auteur de l'infraction : Ie corrompu : l'auteur doit etre depositaire de l'autorite

publique (representant de l'Etat et des collectivites locales, fonctionnaires de l'ordre administratif...) ou charge d'une mission de service public (president de chambre de commerce, ... ) ou investi d'un mandat electifpublic (depute, ... ). Par personne depositaire de l'autorite publique, il faut entendre une personne titulaire d'un pouvoir de decision et de contrainte sur les individus et sur les choses qu'elle manifeste dans l'exercice de fonctions, permanentes ou temporaires, dont e1le est investie par delegation de la puissance pUblique. Par personne chargee d'une mission de service public, il faut entendre une personne qui, sans avoir re9u un pouvoir de decision ou de commandement, est chargee d'accomplir des actes ou d'exercer une fonction dont la finalite est de satisfaire it un interet general.

• Activite materielle delictueuse : i1 s'agit de solliciter ou d'agreer directement ou indirectement, sans droit, it tout moment, des offres, dons, promesses, presents ou des avantages quelconques (argent liquide, remise de dettes, ouverture de credits, objets

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materiels, voyages, ... ). La sollicitation implique l'initiative de la personne exeryant une fonction publique. La seule sollicitation consomme Ie delit, meme si elle n 'est pas suivie du consentement de la personne sollicitee. L'agrement designe tout a la fois l'acceptation par Ie corrompu des offres qui lui sont faites, et la reception des dons ou presents promis. L'agrement implique un accord de volontes entre Ie corrupteur et Ie corrompu qui consomme l'infraction, quel que so it Ie resultat effectif.

• But des manreuvres : La personne agree ou sollicite un avantage pour accomplir ou s'abstenir d'accomplir un acte de sa fonction, de sa mission ou de son mandat ou facilite par sa fonction, sa mission ou son mandat. Les actes de la fonction sont determines par les dispositions legales ou reglementaires qui regissent la fonction. Les actes facilites par la fonction sont ceux qui bien que ne ressortissant pas aux prerogatives expressement concedees a l'interesse par des dispositions legales ou reglementaires, sont rendus possibles par ces prerogatives en raison du lien etroit qui unit l'acte et les attributions.

• Condition de temps : Le delit de corruption n'est caracterise que si la sollicitation ou l'agrement d'un avantage quelconque est anterieur a l'acte de la fonction ou facilite par la fonction ainsi achete. Le principe d'anteriorite ne s'applique qu'au pacte de corruption lui­meme, non aux modalites de son execution. "11 importe peu que les dons, presents ou avantages aient ele acceptes par une personne investie d'un mandat electif posterieurement a l'accomplissement de I'acte de la fonction, Ie delit de corruption, consomme des la conclusion du pacte entre Ie corrupteur et Ie corrompu se renouvelant a chaque acte d'execution dudit pacte@ (Ch. Crim. C. Casso 27110/1997 - Carignon). Pour faciliter la preuve de l'anteriorite du pacte en cas de relations s 'echelonnant dans Ie temps la Cour de cassation cbnsidere que la corruption est caracterisee des lors que, dans Ie tissu des relations qui se nouent entre tel decideur public et tels entrepreneurs, les "dons recompensant les actes passes ont pour but de faciliter les services futurs " (Crim 29/09/1973 Bull nO 271).

2 -la corruption active (article 433-1 alinea 1 er 10 et aUnea 2 du code penal)

Elements constitutifs • Qualite de l'auteur de l'infraction: Ie corrupteur : un particulier • Qualite du corrompu : il s'agit de l'une des personnes visees par l'infraction de corruption

passive (personne depositaire de l'autorite publique, chargee d'une mission de service public ou investie d'un mandat electif public).

• Activite materielle delictueuse : il s'agit du fait, pour Ie particulier: a) soit de proposer sans droit, directement ou indirectement, a tout moment, des avantages que1conques pour obtenir de la personne investie d'une fonction publique qu'elle accomplisse ou s'abstienne d'accomplir un acte de sa fonction ou facilite par elle; b) soit de ceder a la personne investie d'une fonction publique qui sollicite directement ou indirectement, sans droit, des avantages que1conques pour accomplir ou s'abstenir d'accomplir un acte de sa fonction ou facilite par elle.

• Condition de temps : l'offre ou Ie don doivent etre anterieurs a l'acte ou a l'abstention sollicites.

3 - Cas particuliers de corruption

• corruption active ou passive de personnes qui, dans l'exercice de leur profession, etablissent des attestations faisant etat de faits inexacts (article 441-8 du code penal) ;

• corruption, passive ou active, des magistrats ou autres personnes intervenant dans l'administration de la justice (article 434-9 du code penal) ; les elements constitutifs de

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cette infraction sont identiques a ceux de la corruption active ou passive de personnes exer9ant une fonction publique en France, si ce n'est la qualite de la personne corrompue qui doit etre un magistrat, un jure, ou une personne siegeant dans une formation juridictionnelle fran9aise, un arbitre ou un expert nomme soit par une juridiction, soit par les parties, ou une personne chargee par l'autorite judiciaire d'une mission de conciliation ou de mediation.

4 - La corruption d'agent public etranger

La France a choisi d'incriminer la corruption d'un agent public relevant d'un Etat etranger ou d'une organisation internationale dans un cadre conventionnel relevant soit de l'Union europeenne, soit de l'OCDE (cf. loi du 30 juin 2000 modifiant Ie code penal et Ie code de procedure penale et relative a la corruption).

la corruption active et passive d'un jonctionnaire communautaire, d'un jonctionnaire national d'un autre Etat membre et des membres des institutions des Communautes Les articles 435-1 et 435-2 du code penal incriminent respectivement la corruption passive et la corruption active d'un fonctionnaire communautaire, d'un fonctionnaire national d'un autre Etat membre ou d'un membre des institutions des Communautes. La definition des actes materiels tomb ant sous Ie coup de ces articles correspond a celle de la corruption active et passive d'un fonctionnaire national. Seule la qualite de la personne corrompue change. II doit s'agir soit d'un fonctionnaire communautaire, soit d'un fonctionnaire d'un autre Etat membre de l'Union europeenne, soit d'un membre des institutions des Communautes (a savoir, un membre de la Commission des Communautes europeennes, du Parlement europeen, de la Cour de justice, ou de la Cour des comptes des Communautes europeennes).

la corruption active d'un agent public etranger dans les transactions commerciales internationales Les articles 435-3 et 435-4 du code penal incriminent les faits de corruption active d'un agent public etranger commis en vue d'obtenir ou conserver un marche ou un autre avantage indu dans Ie commerce internationaL La definition des actes tomb ant sous Ie coup de ces articles correspond a celle qui figure dans l'article 433-1, 10 reprimant Ia corruption active d'un fonctionnaire nationaL La personne corrompue doit etre soit une personne depositaire de l'autorite publique, chargee d'une mission de service public ou titulaire d'un mandat electif public dans un Etat etranger ou au sein d'une organisation internationale publique (article 435-3), soit un magistrat, un jure ou toute autre personne siegeant dans une formation juridictionnelle, un arbitre, un expert nomme soit par une juridiction, soit par les parties ou d'une personne chargee par l'autorite judiciaire d'une mission de conciliation ou de mediation dans un Etat etranger ou au sein d'une organisation internationale publique (article 435-4). Contrairement a l'article 435-2 du code penal qui reprime tous les actes de corruption active, quelque so it leur objet, les articles 435-3 et 435-4 ont un champ d'application plus restreint : les faits doivent avoir ete commis "en vue d'obtenir ou conserver un marche ou un autre avantage indu dans Ie commerce international".

5 - Le trafic d'inf!uence

Le droit penal fran9ais incrimine distinctement Ie trafic d'influence actif et Ie trafic d'influence passif.

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Le trafic d'influence passif est Ie fait pour une personne exeryant une fonction publique en France (article 432-11, 20 du code penal) ou une personne privee (article 433-2 du code penal) de solliciter ou d'agreer, sans droit, directement ou indirectement, des avantages que1conques pour abuser de son influence reelle ou supposee en vue de faire obtenir d'une autorite ou d'une administration publique franyaise des distinctions, des emplois, des marches ou toute autre decision favorable.

Le trafic d'influence actif est Ie fait pour un tiers quelconque de proposer, sans droit, directement ou indirectement, des avantages quelconques a une personne exeryant une fonction publique en France (article 433-1, 20 du code penal) ou a une personne privee (article 433-2 du code penal) pour qu'elle abuse de son influence teelle ou supposee en vue de faire obtenir d'une autorite ou d'une administration publique franyaise des distinctions, des emplois, des marches ou toute autre decision favorable.

En droit penal fran 9a is, Ie trafic d'influence se distingue donc de la corruption par Ie but des manCEuvres frauduleuses. Si l'offre ou Ie versement de fonds a une personne exeryant une fonction publique a pour objet d'acheter la decision elle-meme de cette derniere, rut-ce indirectement, par des moyens detournes (notamment par personne interposee), il y a corruption. Si l'offre ou Ie versement de fonds a pour objet de remunerer l'influence reelle ou supposee de la personne exeryant une fonction publique, il y a trafic d'influence.

6 - La corruption privee

L'article L. 152-6 du code du travail incrimine la corruption active (alinea 2) et passive (alinea 1) dans Ie secteur prive. gualite de la personne corrompue : la personne corrompue doit avoir la qualite de "directeur" ou de "salarie". En toute hypothese, la personne corrompue doit etre dans une situation de subordinationjuridique vis a vis de l'employeur. activite materielle delictueuse: il s'agit du fait de solliciter ou d'agreer, directement ou indirectement des avantages quelconques, ou de ceder a des sollicitations similaires ou d'en prendre l'initiative, a l'insu et sans l'approbation de son employeur pour accomplir ou s'abstenir d'accomplir un acte de la fonction ou facilite par la fonction.

7 - Regles communes de prescription

Le regime de prescription des infractions de corruption est, s'agissant de delits, de 3 ans conformement a l'article 8 du code de procedure penale. S'agissant d'une infraction instantanee, Ie point de depart est fixe au jour oil Ie delit a ete commis. Cependant, selon une jurisprudence constante de la Cour de cassation, recemment rappelee (arret Carignon 27/1011997), "Ie delit de corruption, consomme des la conclusion du pacte entre Ie corrupteur et Ie corrompu, se renouvelle a chaque acte d'execution dudit pacte". II en resulte que Ie point de depart du delai de corruption est reporte, au-dela du jour oil a ete scelle Ie pacte de corruption, jusqu'au jour du demier versement ou de la derniere reception des choses promises (cf. aussi Crim. 1311211972 Bull nO 391). Enfin, conformement aux articles 7 et 8 du code de procedure penale, la prescription peut etre interrompue ou suspendue, ce qui a pour resultat de pro longer la duree de la prescription et de permettre la poursuite du delinquant au-dela du delai fixe par la loi.

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La prescription de l'action publique est interrompue par les actes de poursuite ou d'instruction. L'interruption de la prescription a pour effet d'effacer tout Ie temps ecoule avant sa survenance, un nouveau delai de prescription commenyant a courir. La prescription est suspendue en cas d'obstac1e de droit (examen d'une question prejudicielle -pourvoi en cassation ... ) ou de fait (demence de la personne mise en examen ... ) a l'exercice de l'action publique. A la difference de l'interruption, la suspension ne fait qu'arreter Ie cours de la prescription, si bien que Ie temps deja ecoule avant sa survenance entre en ligne de compte pour Ie ca1cul du delai.

8 - Blanchiment

La France incrimine Ie blanchiment du produit de tout crime ou delit a l'artic1e 324-1 du code penal. La corruption revet donc bien Ie caractere d'une infraction principale a l'egard de l'infraction de blanchiment. Aux termes de l'artic1e 324-1 du code penal, "Ie blanchiment est Ie fait de faciliter, par tout moyen, la justification mensongere de l'origine des biens ou revenus de l'auteur d'un crime ou d'un delit ayant procure a celui-ci un profit direct ou indirect. Constitue egalement un blanchiment Ie fait d'apporter un concours a une operation de placement, de dissimulation ou de conversion du produit direct ou indirect d'un crime ou d'un delit. "

Elements materiels: trois elements doivent etre etablis pour caracteriser l'infraction : L'existence d'un crime ou d'un delit principal - dit infraction prealable ; L'existence d'un fait de blanchiment, constitue dans son element materiel et intentionnel ; L'existence d'un lien entre l'infraction prealable et Ie fait de blanchiment c'est-a-dire la preuve que les fonds "traites" par la personne suspectee de blanchiment proviennent du produit de l'infraction prealable. Pour entrer en voie de condamnation, il suffit de rapporter la preuve que Ie prevenu connaissait l'origine frauduleuse des fonds, sans avoir a etablir qu'elle avait la connaissance precise de la nature, des circonstances de temps, de lieu, d'execution de l'infraction prealable.

Le delit de blanchiment etant un delit distinct de l'infraction principale, il importe peu que l'infraction de corruption active ait ete commise a l'etranger, ou qu'elle soit ou non de la competence des juridictions penales franyaises.

Le blanchiment simple est puni de 5 ans d'emprisonnement et de 2 500 000 francs d'amende. Les personnes physiques encourent au surplus les peines complementaires prevues a l'article 324-7 du code penal

Les personnes morales peuvent etre dec1arees responsables penalement des infractions de blanchiment. Elles encourent une peine d'amende double de celle encourue par les personnes physiques et les peines mentionnees it l'artic1e 131-19.

c.3 Sanctions ( emprisonnement, mesures de confiscation, suppression de droits, sanctions administratives, listes noires ... )?

Les sanctions concernant les differents delits de corruption sont les suivantes :

Corruption passive par une personne publique (art. 432-10 du CP) :

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lOans d'emprisonnement - 1.000.000 F d'amende - Interdiction des droits et d'exercer -Confiscation Corruption active commise par Ie particulier (art. 433-1 du CP) : lOans d'emprisonnement - 1.000.000 F d'amende - condamnation de la personne morale -Interdiction des droits et d'exercer -Confiscation Trafic d'influence passif commis par des personnes publiques ou priwJes (art. 432-11 du CP) : lOans d'emprisonnement - 1.000.000 F d'amende - Interdiction des droits et d'exercer -Confiscation - condamnation de la personne morale Trafic d'influence actif commis par des particuliers (art. 433-2 du CP) : 5 ans d'emprisonnement - 500.000 F d'amende - Interdiction des droits et d'exercer -Confiscation Prise illegale d'interets (art. 432-12 du CP) : 5 ans d'emprisonnement - 500.000 F d'amende - Interdiction des droits et d'exercer -Affichage de la decision Favoritisme (art. 432-14 du CP) : 2 ans d'emprisonnement - 200.000 F d'amende - Interdiction des droits et d'exercer

c.4 A qui ces sanctions s'appliquent-elles (personnes physiques ou personnes Morales)?

Les sanctions s'appliquent aux personnes physiques, mais les personnes morales peuvent aussi etre tenues pour responsables penalement des infractions de corruption et de blanchiment dans les conditions prevues a l'artide 121-2 du code penal. L'article 121-2 du code penal definit Ie champ d'application de la responsabilite penale des personnes morales, ainsi que les conditions de mise en reuvre de cette responsabilite. Selon l'article 121-2, les personnes morales, a l'exclusion de l'Etat, sont responsables penalement, selon les distinctions des articles 121-4 a 121-7 (c'est-a-dire en qualite d'auteur ou de complice), et dans les cas prevus par la loi ou Ie reglement, des infractions commises, pour leur compte, par leurs organes ou representants. La responsabilite penale des personnes morales n'exclut pas celle des personnes physiques, auteurs ou complices des memes faits.

Champ d'application de la responsabilite penale quant aux personnes morales En vertu de l'article 121-2 du code penal, la responsabilite penale des personnes morales s'applique, en principe, a toutes les personnes morales, qu'elles soient de droit public ou de droit prive, a but lucratif ou non lucratif, franyaises ou etrangeres, a l'exception de l'Etat. 11 a en effet ete juge inconcevable que l'Etat, qui detient Ie monopole du droit de punir, puisse se sanctionner lui-meme. A la difference des autres personnes de droit public (etablissements publics, groupements d'interet public, entreprises nationalisees, ordres professionnels), qui sont penalement responsables pour l'ensemble de leurs activites, les coUectivites territoriales ou leurs groupements voient leur responsabilite penale limitee, par Ie second alinea de l'article 121-2, aux "infractions commises dans l'exercice d'activites susceptibles de faire l'objet de conventions de delegation de service public", queUe que soit la forme d'une teUe delegation (concession, regie interessee, affermage, gerance; voire marche d'entreprises, encore que cette demiere categorie fasse l'objet de discussion). Toutes les personnes morales de droit prive sont penalement responsables (les groupements qu'ils soient volontaires ou d'origine legale ; les societes civiles ou commerciales; les associations regulierement declarees, y compris les congregations religieuses ; les fondations ; les syndicats ; les partis ou groupements politiques, les groupements d'interet economique ; les institutions representatives des salaries, les syndicats de coproprietaires).

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Conditions de mise en ceuvre de la responsabilite penale

Aux termes de l'artic1e 121-2 du code penal, les personnes morales sont responsables penalement des infractions commises pour leur compte par leurs organes ou representants. Deux conditions sont donc prevues a l'artic1e 121-2 pour imputer une infraction a une personne morale:

En premier lieu, l'infraction doit avoir ete commise par un organe ou un representant de la personne morale. De ce fait, la responsabilite penale des personnes morales est une responsabilite indirecte dans la mesure ou les infractions imputables aux personnes morales doivent avoir ete commises par des personnes physiques. Les organes de droit d'une personne morale sont constitues par une ou plusieurs personnes physiques auxquelles la loi ou les statuts conrerent une fonction particuliere dans l'organisation de la personne morale en les charge ant de son administration ou de sa direction. Les organes des personnes morales de droit prive sont, s'agissant des societes, Ie gerant, Ie PDG, Ie conseil d'administration ou Ie directoire, les directeurs generaux. La notion de "representant" designe toute personne ayant reyu la mission de representer la personne morale. Cette notion se confond donc, pour partie, avec celle de l'organe, dans la me sure ou la plupart des organes d'une personne morale sont des representants legaux de la personne morale. Toutefois, il existe des hypotheses dans lesquelles les representants d'une personne morale n'en sont pas les organes. Doivent notamment etre consideres comme representants de la personne morale : l'administrateur provisoire, Ie liquidateur d'une societe ou d'une association, les personne titulaires d'une delegation de pouvoir au sein d'une entreprise, et d'une fayon generale toute personne a laquelle les organes ont donne pour mission generale -pour mandat- de gerer et representer la personne morale.

En second lieu, l'infraction doit avoir ete commise pour Ie compte de la personne morale. Doit etre consideree comme agissant pour Ie compte de la personne morale, Ie dirigeant qui agit au nom et dans l'interet de celle-ci. Les actes reprehensibles du representant eng agent egalement la responsabilite penale de la personne morale des lors qu'ils ont ete commis pour son compte au sens Ie plus large du terme, c'est-a-dire dans l'exercice d'activites ayant pour objet d'assurer l'organisation, Ie fonctionnement ou les objectifs du groupement dote de la personnalite morale meme si e1le n'y a trouve aucun interet, s'il n'en resulte pour elle aucun profit. Le dirigeant d'une societe qui, par des actes de corruption, obtiendrait d'un fonctionnaire ou d'un elu des avantages pour son entreprise - tel l'obtention d'un marche public - engage des lors la responsabilite de cette demiere.

c.S Champ d'application territorial

La determination de la competence territoriale des autorites judiciaires franyaises en matiere de corruption s'effectue selon les regles de droit commun (a l'exception neanmoins des faits de corruption de fonctionnaires communautaires ou d'un autre Etat membre pour lesquels les juridictions franyaises beneficient d'une competence elargie par rapport au droit commun).

Regles de competence de droit commun

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Le systeme juridique franyais est regi par Ie principe de l'unite des competences legislative et juridictionneIle en droit penal. En vertu de ce principe, chaque fois qu'une disposition prevoit la competence des juridictions franyaises, celles-ci ne peuvent appliquer que la loi franyaise et, inversement, toutes les dispositions reconnaissant la competence de la loi franyaise signifient implicitement que les juridictions franyaises sont competentes pour l'appliquer.

L 'article 113-2 du code penal L'article 113-2 du code penal pose Ie principe de la territorialite de la loi penale. Aux termes de cet article: "La loi penale franyaise est applicable aux infractions commises sur Ie territoire de la Republique, l'infraction est reputee commise sur Ie territoire de la Republique des lors qu'un de ses faits constitutifs a eu lieu sur ce territoire". Par extension du principe de iehitorialite de la loi penale, la loi penale franyaise est applicable egalement a des infractions totalement commises a l'etranger des lors qu'elles presentent un lien de connexite ou d'indivisibilite avec des infractions commises en France (ex: des faits de corruption commis a l'etranger en lien avec une association de malfaiteurs formee en France. Cf. Crim 23/0411981 B nO 116). Enfin, selon l'article 113-5 du code penal, la loi franyaise est competente pour connaitre d'un acte de complicite commis en France, d'une infraction principale commise a l'etranger si Ie crime ou Ie delit est puni a la fois par la loi franyaise et la loi etrangere et s'il a ete constate par une decision definitive de la juridiction etrangere.

L 'article 113-6 du code penal En outre, selon l'article 113-6 du code penal, la loi penale franyaise est applicable aux delits commis par des franyais hors du territoire de la Repuhlique si les faits sont punis par la legislation du pays ou ils ont ete commis. II est fait application du present article alors meme que Ie prevenu aurait acquis la nationalite franyaise posterieurement au fait qui lui est impute.

L 'article 113-7 du code penal L'article 113-7 du code penal dispose que la loi penale franyaise est egalement applicable a tout delit puni d'emprisonnement commis par un franyais lorsque la victime est de nationalite franyaise au moment de l'infraction. Dans les cas prevus aux articles 113-6 et 113-7 du code penal, la poursuite ne peut etre exercee qu'a la requete du ministere pUblic. EIle doit etre precedee soit, d'une plainte de l'Etat victime des faits de corruption active auquel appartient l'agent public etranger, soit d'une denonciation officielle par l'autorite du pays ou Ie fait a ete commlS.

Competence des juridictions fran£aises pour connaltre des faits de corruption commis par des jj:mctionnaires communautaires ou d=un autre Etat membre

L'article 689-8 du code de procedure penale, issu de la loi du 30 juin 2000 precite, prevoit des regles de competence elargie pour la poursuite, l'instruction et Ie jugement en France des faits de corruption active et passive commis par des fonctionnaires communautaires ou dlun autre Etat membre (articles 435-1 et 435-2 du Code penal).

Personnes concernees

Les personnes morales sont responsables penalement pour des infractions commises a l'etranger dans les memes conditions et selon les memes regles que les personnes physiques.

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c.6 La loi contient-elle des dispositions specifiques concernant la charge de la preuve (renversement, protection des whistleblowers ... )?

La loi ne contient aucune disposition specifique concernant les whistleblowers ou les personnes mises en cause par eux, autres que les lois concernant les denonciations calomnieuses. Le renversement de la charge de la preuve n'est pas admis en matiere d'infractions de corruption. II appartient au Ministere Public de faire la preuve du delit.

c.7 Cette legislation est-eUe satisfaisante ?

La legislation franyaise est tres detaillee sur les differents aspects de la corruption. Elle donne entiere satisfaction. Les seuls points sur lequel elle pourrait etre amelioree concernent l'etablissement de la preuve de l'existence du pacte de corruption et Ie delai de prescription qui est de 3 ans apres la commission des faits. La corruption etant par definition secrete, un delai de prescription partant de la date de la decouverte des faits serait sans doute plus efficace et eviterait de recourir a des condamnations pour abus de biens sociaux, infraction pour laquelle la prescription est de 3 ans apres la decouverte des faits.

d. Mesures de prevention

d.l Quelles mesures de prevention existent dans votre pays (audit, publication d'informations financieres obligatoires, codes de conduite ... ) ?

De nombreuses administrations ont etabli un code de conduite ou de deontologie ; c'est Ie cas de l'administration des impots, de l'equipement, du tresor public, de la police nationale, de la douane ... Le controle du respect de ces dispositions et l'exercice de la discipline reI event de chaque administration. Le chef de service, des inspections internes au service ou l'inspection generale du ministere dont releve l'agent exercent ce controle en ordonnant, au besoin, une enquete administrative. Pour la plupart des administrations classiques, il existe un conseil de discipline ayant Ie pouvoir de prononcer toute une gamme de sanctions disciplinaires. L'agent sanctionne peut exercer des recours devant ce meme conseil, devant Ie conseil superieur de la fonction publique de l'Etat ou devant Ie tribunal administratif.

En application de l'article 53-90 de la loi du 31 decembre 1971 modifiee, les avo cats doivent deposer a la CARP A (Caisse des reglements pecuniaires des avocate), les fonds, effets ou valeurs qu'ils reyoivent pour Ie compte de leurs clients.

Pour prevenir l'utilisation illicite des finances publiques, Ie droit franyais met en reuvre Ie principe de la separation des ordonnateurs et des comptables et prevoit de nombreux controles aux differents stades de la depense pUblique.

Enfin, s'agissant des elus et des hommes politiques, notre legislation prevoit pour les membres du Gouvernement, les parlementaires europeens, les parlementaires nationaux, les presidents et conseillers des conseillers regionaux et generaux, les maires des communes de plus de 30

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000 habitants, les adjoints aux maires des communes de plus de 100 000 habitants, titulaires de delegations de fonctions, les presidents et directeurs generaux des entreprises nationales, des etablissements publics nationaux a caractere industriel et commercial, de certains organismes publics d'habitations a loyers moderes et de certaines societes d'economie mixte, une declaration de leur situation patrimoniale au debut et a la fin de l'exercice de leurs fonctions a la Commission pour la transparence financiere de la vie politique presidee par Ie vice-president du Conseil d'Etat et composee de magistrats du Conseil d'Etat, de la Cour de Cassation et de la Cour des Comptes.

e. Structures

e.1 Votre pays a-t-il cree des services specialises pour lutter contre la corruption? Si oui, quel est Ie contexte (par exemple installes pres de la police), la composition, les fonctions et les pouvoirs de ces services?

Parmi quatre vingt six propositions formulees en decembre 1992 par une commission de retlexion sur la lutte contre la corruption dite "commission de prevention de la corruption" reunie au mois d'avril de la meme annee a l'initiative du Premier Ministre, figurait la recommandation de creer un service central de lutte contre la corruption au ministere de la Justice.

Date de creation et fondement juridique La loi nO 93-122 du 29 janvier 1993 relative a la prevention de la corruption et a la transparence de la vie economique et des procedures publiques, a cree, dans ses articles 1 a 6, Ie Service Central de Prevention de la Corruption dont les modalites d'application ont ete fixees par Ie decret nO 93-232 du 22 fevrier 1993 pris apres avis du Conseil d'Etat (loi et decretjoints).

Composition, fonctions, pouvoirs, missions Le Service Central de Prevention de la Corruption (SCPC) est un service interministeriel, pluridisciplinaire et specialise, place aupres du ministere de la Justice. Dirige par un haut magistrat ayant Ie rang de Procureur General, il comprend des specialistes de la justice et de l'administration : des magistrats de l'ordre judiciaire et des juridictions financieres (chambres regionales des comptes), ainsi que des representants de l'administration: impots, douanes, concurrence, consommation et repression des fraudes, police judiciaire, corps prefectoral, gendarmerie, equipement, transport et logement.

Trois missions ont ete assignees a ce service : • La premiere est de centraliser les informations necessaires a la detection et a la prevention

des faits de corruption active ou passive, de trafic d'influence commis par des personnes exen;ant une fonction publique ou par des particuliers, de concussion, de prise illegale d'interets ou d'atteinte a la liberte et a l'egalite des candidats dans les marches publics.

Concretement, cette premiere mission consiste a analyser les secteurs dans lesquels la corruption sevit et a formuler des recommandations pour y remedier. C'est ainsi qu'ont ete notamment etudies jusqu'a present: les marches publics, Ie sport, la sante publique, l'informatique, la formation professionnelle, les grandes surfaces, les sectes, les produits derives, la publicite, les transactions commerciales intemationales, Ie role des conseils et des intermediaires.

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A partir des connaissances acquises sur cette base, Ie service developpe lui-meme ou sous-traite une action de sensibilisation ou de formation a la lutte contre la corruption visant trois categories d'agents : les agents exposes au risque de corruption (marches publics, sante publique), les agents qui pratiquent des contr6les (prefecture, concurrence, consommation et repression des fraudes) et ceux qui realisent des investigations (police judiciaire, gendarmerie, justice). A cette occasion, des documents comme des vade-mecum ou des fiches de recherches s'inspirant notamment des methodes d'audit, sont mis a la disposition des agents;

• La deuxieme mission est une fonction consultative, c'est a dire la possibilite pour Ie service de donner, a leur demande, a l'administration, aux responsables de certains organismes limitativement enumeres comme la commission des operations de bourse, Ie conseil de la concurrence, la mission interministerielle d'enquete sur les marches publics, les juri dictions financieres et aux responsables des collectivites locales comme les maires des communes, des avis sur des cas concrets auxquels ils sont confrontes, notamment, pour prevenir la corruption.

En pratique, ce sont parfois l'administration ou les juridictions financieres mais surtout les maires des petites communes (1500 a 20 000 habitants) depourvus de services juridiques ou sans conseils attitres, qui sollicitent ces avis; ceux-ci ne sont communiques qu'aux autorites en ayant fait la demande sans qu'elles ne puissent les divulguer.

La troisieme mission est de collaborer a l'action de la justice en saisissant Ie procureur de la Republique des faits de corruption dont il peut avoir connaissance ou en procurant a la justice Ie concours technique et juridique d'un service specialise si elle Ie lui demande, la regIe etant que des qu'une procedure judiciaire d'enquete sur des faits de corruption est ouverte, Ie SCPC est dessaisi des faits dont il a pu avoir eu connaissance.

Tous les membres du service sont astreints au secret professionnel.

• Au-dela de ces trois missions bien determinees, Ie SCPC contribue, en outre, au sein de la delegation franyaise, aux travaux de toutes les instances intemationales sur la lutte contre la corruption. II participe egalement a la cooperation intemationale tant multilaterale que bilaterale et accueille, a ce titre, toutes les delegations etrangeres qui souhaitent decouvrir ses activites.

Depourvu de pouvoirs autonomes d'investigation, Ie SCPC n'est donc pas un service operationnel d'enquete mais un service pluridisciplinaire et specialise d'analyse de la corruption, de sensibilisation et de formation a la lutte contre la corruption, de consultation a l'intention de l'autorite publique et d'assistance a lajustice. Chaque annee, il adresse au Premier Ministre et au Ministre de la Justice, un rapport par lequel il rend compte de son activite, pub lie ses nouvelles analyses et formule des recommandations a l'attention du Gouvemement. La pUblication de ce rapport annuel est l'occasion de reunir Ie comite permanent de liaison, une instance a composition non limitee qui reunit les membres du SCPC et tous les directeurs des administrations impliquees dans la lutte contre la corruption, representees ou non a l'interieur du service. Cette reunion annuelle a pour objet de presenter les travaux du service aux administrations, de susciter un debat afin de

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definir Ie programme de travail de l'annee a venir auquelles administrations sont appelees a collaborer. Le rapport annuel du SCPC est publie aux editions du Journal Officiel ou chacun peut l'acquerir pour Ie prix de 45 francs. Le site web du ministere de la Justice permet d'acceder a son sommalre.

2. Cooperation internationale en matiere de corruption

a.Offre

a.l Jusqu'a quel point votre pays apporte-t-il une cooperation internationale dans les cas de corruption (echange d'informations policieres, assistance mutuelle en matiere criminelle, extradition ... ) ?

La France a deja ratifie et recemment mis en reuvre plusieurs conventions internationales en matiere de corruption destinees principalement a harmoniser les incriminations et donc, indirectement, a promouvoir et a faciliter la lutte contre cette forme particuliere de delinquance : • Convention relative a la lutte contre la corruption impliquant des fonctionnaires des

Communautes europeennes ou des fonctionnaires des Etats membres de l'Union europeenne, faite a Bruxelles Ie 26 mai 1997 ;

• Convention de l'Organisation de cooperation et de developpement economique (OCDE) sur la lutte contre la corruption d'agents publics etrangers dans les transactions commerciales internationales, faite a Paris Ie 17 decembre 1997;

• Convention penale du Conseil de l'Europe signee Ie 9 septembre 1999 ; • Convention Civile du Conseil de l'Europe signee Ie 26 novembre 1999.

Par ailleurs, la France est partie a plusieurs conventions multilaterales et bilaterales qui permettent la cooperation judiciaire internationale, tant en ce qui concerne l'extradition que l'entraide judiciaire. Les dispositions de ces conventions s'appliquent egalement aux procedures conduites du chef de corruption.

En matiere d'extradition, la France est essentiellement partie a la convention europeenne d'extradition du 13 decembre 1957 qui constitue Ie texte de base de ses relations avec de nombreux pays. Elle est egalement partie a la convention d'application de l'accord de SCHENGEN du 19 juin 1990 qui complete la precedente et en renforce l'efficacite. La France est egalement signataire de la convention relative a la procedure simplifiee d'extradition du 10 mars 1995 et de la convention du 27 septembre 1996 relative a l'extradition entre les Etats membres de l'Union europeenne, lesquelles contiennent des dispositions qui, lorsqu'elles seront entrees en vigueur, devraient faciliter Ie traitement des demandes d'extradition. Enfin, la France a signe de nombreuses conventions bilaterales en matiere d'extradition, etablies sur Ie modele de la convention de 1957.

En matiere d'entraide judicia ire, la France est partie a la convention europeenne d'entraide judiciaire en matiere penale faite a Strasbourg, Ie 20 avril 1959, qui constitue la base de la cooperation judiciaire entre la France et de nombreux Etats. Par ailleurs, la France est signataire de la convention d'application de l'Accord de SCHENGEN, entree en vigueur Ie 26 mars 1995, qui contient d'importantes dispositions permettant d'etendre et de faciliter l'entraide judiciaire entre les Etats signataires.

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La France a egalement signe de nombreuses conventions bilaterales d'entraide judiciaire en matiere penale. Le plus souvent, celles-ci s'inspirent de la convention de 1959.

En !'absence de convention, la cooperation judiciaire en matiere penale peut etre accordee par la France selon les conditions et modalites prevues par Ie droit interne, en l'occurrence par la loi du 10 mars 1927, relative it l'extradition des etrangers. • En l'absence de convention, l'entraide judiciaire peut toujours etre demandee. La France

peut egalement l'accorder, sur la base de la reciprocite, conformement aux dispositions des articles 30 et suivants de la loi du 10 mars 1927, et ce egalement en ce qui concerne les affaires de corruption. La loi du 10 mars 1927 ne subordonne pas l'octroi de l'entraide judiciaire it l'existence de peines privatives de liberte d'un seuil minimal. L'entraide judiciaire peut donc etre accordee efficacement quelque soit Ie quantum des peines prevues. L'entraide pourra egalement etre accordee lorsque la responsabilite engagee sera celle d'une personne morale.

• En matiere d'extradition, les relations de la France ne sont pas soumises it l'existence d'une base juridique conventionnelle dans la mesure OU la loi du 10 mars 1927 permet l'extradition, en l'absence de toute convention, sur la base de la reciprocite. Dans ce cas, les conditions de l'extradition sont definies par la loi du 10 mars 1927, et particulierement l'article 4, alineas 1 et 2. L'extradition peut etre accordee ou demandee par la France lorsque l'infraction est sanctionnee par la loi de l'Etat requerant :

soit d'une peine criminelle (pas de seuil), soit d'une peine correctionnelle dont Ie seuil est de deux ans au moins.

Compte tenu des peines prevues par Ie droit penal franyais pour les delits de corruption, la France pourra toujours demander l'extradition. En revanche, elle ne pourra faire droit it la demande d'extradition emanant d'un Etat etranger que pour autant que la legislation de cet Etat prevoit un seuil suffisant au regard de la loi du 10 mars 1927.

a.2 Dans queUes conditions la cooperation s'applique-t-eUe ?

Extradition

Lorsqu'il existe une convention d'extradition applicable, les conditions de l'extradition sont determinees par cet instrument. L'economie generale des conventions d'extradition signees par la France est la suivante : • L'extradition est toujours subordonnee it la condition de double incrimination.

II convient de relever que cette condition sera presumee satisfaite si l'infraction pour laquelle l'entraide est demandee releve d'une convention multilaterale it laquelle les deux Etats sont parties (convention relative it la lutte contre la corruption impliquant des fonctionnaires des Communautes europeennes ou des fonctionnaires des Etats membres de l'Union europeenne, faite it Bruxelles Ie 26 mai 1997 ; Convention sur la lutte contre la corruption d'agents publics etrangers dans les transactions commerciales internationales, faite it Paris Ie 17 decembre 1997).

• En principe, les infractions pouvant donner lieu it extradition sont determinees par Ie quantum de la peine encourue et non par leur qualification. Actuellement, aucune des conventions auxquelles la France est partie ne prevoit de seuil superieur it deux ans. Compte tenu des peines prevues par Ie droit penal franyais pour les delits de corruption (dix annees d'emprisonnement), la France pourra done toujours demander l'extradition. En revanche, elle ne pourra faire droit it la demande d'extradition

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emanant d'un Etat etranger que pour autant que la legislation de cet Etat prevoit un seuil suffisant au regard de la convention applicable.

Entraide judicia ire

Dans Ie cadre de certains instruments et si ceux-ci Ie prevoient (par exemple la convention d'application de l'Accord de SCHENGEN), la France peut accorder l'entraide judiciaire pour des procedures non penales, a caractere administratif, a la condition qu'il puisse etre fait appel, notamment devant une juridiction penale, des decisions rendues par l'institution administrative.

En principe, la France ne subordonne pas l'execution des demandes d'entraide judiciaire a la double incrimination. Cependant certaines conventions bilaterales prevoient cette condition, notamment pour les demandes d'entraide portant sur des mesures coercitives. Elle sera presumee satisfaite si l'infraction pour laquelle l'entraide est demandee reI eve d'une convention multilaterale a laquelle les deux Etats sont parties.

Le souci de renforcer la cooperation judiciaire a conduit la France a adopter Ie 23 juin 1999, une loi renfon;ant l'efficacite de la procedure penale. Cette loi a ajoute au code de procedure penale un titre relatif a l'entraide judiciaire internationale qui comprend notamment une nouvelle disposition (article 694) visant a repondre aux problemes de compatibilite entre Ie droit de I'Etat requerant et Ie droit franyais. Elle permet notamment l'execution des demandes d'entraide emanant d'autorites etrangeres selon des modalites aussi proches que possible que celles prevues par Ie droit de l'Etat requerant.

D'autres dispositions, introduites par la loi precitee du 23 juin 1999, ont pour objet d'accelerer Ie traitement des demandes d'entraide judiciaire, une attention particuliere etant accordee a la cooperation entre les Etats parties a la convention prise pour l'application de l'Accord de Schengen du 19 juin 1990 (articles 695 et 696 du code de procedure penale).

Par ailleurs, la France considere comme participant de l'efficacite de la cooperation, Ie renforcement de ses structures et de ses moyens nationaux specifiquement affectes a cette mission. Des efforts particuliers portent sur la cooperation bilaterale par Ie developpement de l'echange de magistrats de liaison et la possibilite, offerte aux magistrats, de rencontrer leurs homologues des pays frontaliers sur des dossiers suscitant des difficultes ou faisant l'objet d'enquetes dans l'un et l'autre pays.

La mise en place, au sein de l'Union europeenne, du Reseau Judiciaire Europeen, compose de points de contacts designes par chaque Etat membre pour faciliter la communication entre leurs autorites et participer au developpement et a l'amelioration de l'entraide, contribue egalement a l'efficacite de la cooperation judiciaire entre Etats membres. Les travaux du RJE permettent en effet, sur la base de l'experience concrete des praticiens, d'identifier les obstacles a l'entraide judiciaire et les moyens dry remedier. Ils ont deja permis une avancee importante dans Ie domaine de la communication des procedures et l'harmonisation des pratiques

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__ a.3 Particularites de la cooperation avec votre pays

II n'existe pas, a proprement parler, de facteurs specifiques qui empechent ou entravent l'entraide judiciaire dans les affaires de corruption. S'agissant des demandes d'investigations en matiere bancaire, frequentes dans les enquetes portant sur ce type d'infractions, il convient de preciser qu'en France, Ie secret bancaire n'est pas opposable a l'autorite judiciaire. Des lors, il ne peut etre invoque pour refuser l'entraide.

b. Demandes

b.l QueUes sont vos attentes lorsque vous demandez la cooperation d'un autre pays dans un cas de corruption ?

b.2 Quels sont les problemes et comment peuvent-ils etre resolus?

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NATIONAL REPORT

FOR

FINLAND

By Heikki KOPPEROINEN, Detective Chief Superintendent, National Bureau of Investigation

1. The organisation of the fight against corruption on the national level

a. General policy

If we are speaking about corruption and bribery, we usually mean that money, (political) power, personal benefit and influence over some people are mixed together. In most of corruption and bribery cases those elements are involving together and we can be absolutely sure that we can find some of those elements in each case we are speaking about. Generally, corruption and bribery are not common in Finland. Only few bribery cases have been exposed in Finland. All of them have concerned offering bribes to public officials. A typical feature to the cases is that a private entrepreneur or some other party offering a bribe has intended to affect the actions in service of the public official, and in exchange for the actions to have an illegal gift of other benefit. Usually, it has been a question of entertaining the public official e.g. by offering travels. Bribery is not common in Finland, only few cases have been exposed per year. (see b. Statistics, below)

Bribery is taken very seriously in Finland. Bribery is not a part of the Finnish administration culture and it is very rare in Finland. We do not have an unambiguous reasons for that. Some ofthem may depends on our historical background.

Many of the exposed cases have gained a lot of pUblicity and extensive media coverage.

Bribery cases are investigated in Finland in the same way as any other offences. No separate arrangement for the purposes of investigation has been established, and there is no need for doing so.

No connections between bribery cases and organized crime have been found. The number of bribery cases has been numerically low, and persons involved in them have not been members of any organized crime groups.

The general Finnish policy against corruption is satisfactory. We have no specific organisation to fight against corruption. Normal police organisations (National Bureau of Investigation and local criminal police) are enough. Numbers of corruption cases are so low level here in Finland that we do not need any specialised system.

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b. Statistics

In the next you can see some statistics of the number of persons sentenced by district courts for offering a bribe to a public official:

(Source: Rikollisuustilanne 1998, OPTULA 1999)

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998

7 3 1 3 3 1

4 4 2

The number of persons sentenced by district courts for accepting a bribe:

1989 6 1990 3 1991 1992 1 1993 5 1994 3 1995 1996 4 1997 6 1998 1

We also have police statistics relating to the number of persons who are suspected for bribery and corruption by the police. Of course, these statistics also include people who have not been convicted in Court after the police investigation.

It is also possible to collect knowledge from other sources to compare for example those statistics in money laundering but it takes a lot oftime we now haven't.

c. Repressive legislation

3.1. Bribery generally

Provisions on bribery are included in Chapter 16, Section l3 of the Penal Code. According to subsection 1, a person who to (1) a public official, to (2) an employee of public corporation. (3) a soldier, (4) a member of the staff of the European Communities, (5) a public official in another member state of the European Union or (6) a foreign public official, in exchange for hislher actions in service, promises, offers or gives a gift or other benefit, intended to the said person or to another, that affects or is intended to affect or is conductive to affecting the actions in service of the said person, shall be sentenced for bribery. According to sub-section

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2, a sentence for bribery shall also be passed on a person who, in exchange for the actions in service of a public official or another person mentioned in the first paragraph, prormises, offers or gives a gift or other benefit mentioned in the said paragraph to another person. Punishment for bribery is a fine or an imprisonment for at most two years.

Provisions on aggravated bribery are included in Chapter 16, Section 14 of the Penal Code. Bribery is to be considered aggravated, if in the bribery the gift or benefit is intended to make the person act in service contrary to hislher duties with the result of considerable benefit to the briber or to another person or of considerable loss or detriment to another person or the value of the gift or benefit is considerable and the bribery is aggravated also when assessed as whole. Sentence for an aggravated bribery offence is an imprisonment for at least four months and at most four years.

The definition for a public official for the purposes of the Penal Code is included in Chapter 2, Section 12. The definition is very wide and detailed. According to it, public officials are:

First of all, persons who are in the service of, or in a corresponding employment relationship with the State, a municipality or a federation of municipalities or in several other public corporations or institutes that have been specifically named;

Secondly, public officials are municipal councillors and other members of representative bodies of a public corporation elected in a general election, except for parliamentary representatives as well as other members of representative bodies of a public corporation elected in a general election. except for parliamentary representatives in his/her parliamentary duties, as well as a members of organs of a public corporation or institution and officials of these corporations or institutions;

Thirdly, persons, who on the basis of an Act, a Decree or an order based on an Act or Decree exercise public authority in corporations other than those mentioned. In a sense of criminal justice, persons employed under contract by the referred public corporations or institutions are considered as public officials.

Chapter 16, Section 20 of the Penal Code, includes a definition for a member of the staff of the European Communities, an official of another member state of the European Union and a foreign official in a way required by the EU and the OECD Conventions to combat bribery. A member of the staff of the European Communities means a person, who is in a permanent or temporary service relationship with the European Parliament, the Council of the European Union, the Commission of the European Communities, the Court of Justice of the European Communities, the Court of Auditors, the Committee of the Regions, the Economic and Social Committee, the European Ombudsman, the European Investment Bank., the European Central Bank. or another institution set up by virtue of the Treaties establishing the European Communities, or who on assignment performs a task entrusted to himlher by an institution of the European Communities or another institution set up by virtue of the Treaties establishing the European Communities. An official of another Member State of the European Union refers to a person who under the legislation of the State in question is subject to criminal liability as a civil servant or public official. A foreign official means a person, who in a foreign State has been appointed or elected into a legislative, administrative or judicial position or function, or who otherwise performs a public task on behalf of the foreign state, or who is a functionary or representative of a public international organisation.

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According to Chapter 40, Section 1 of the Penal Code, a public official or an employee of a public corporation, for hislher actions while in service, for himselflherself or another demands a gift or other unjustified benefit, accepts a gift or other benefit which influences, which is intended to influence, or which is conducive to influencing him in the said actions, or accepts the gift or benefit or a promise or offer thereof shall be sentenced for acceptance of a bribe. A public official and an employee of a public corporation shall be sentenced for acceptance of a bribe also if he/she, for hislher actions while in service, accepts the giving, the promise or the offer of the gift or other benefit to another person shall be sentenced for acceptance of a bribe. The punishment for acceptance of a bribe is a fine or an imprisonment for at most two years. A public official may also be sentenced to dismissal, if the offence indicates that he/she is manifestly unfit for hislher duties.

It is a question of aggravated acceptance of·a bribe, if the intention of the public official or the employee of a public corporation is, because of the gift or benefit, to act in service in a manner contrary to hislher duties to the considerable benefit of the party giving the gift or of another or to the considerable loss or detriment of another or the gift or benefit is of significant value and the acceptance of the bribe is aggravated also when assessed as a whole. The. sentence for aggravated acceptance of a bribe is an imprisonment for at least four months and at most four years and, moreover, the public official shall be sentenced to dismissal. If the act is not punishable as acceptance of a bribe or as aggravated acceptance of a bribe, he/she shall be sentenced for a bribery violation to a fine or to imprisonment for at most six months.

According to Chapter 40, Section 4 of the Penal Code, the gift or benefit that is received or the value thereof shall be declared forfeited to the State from the offender or from the person on whose behalf or in favour of whom the offender has acted. According to Chapter 2, Section 16 of the Penal Code, the financial benefit of the offence to the offender shall be declared forfeited to the State.

3.2. Bribery in the business and private sector

Both passive and active bribery in the private sector are punishable in Finland. Provisions on bribery in business are included in Chapter 30, Section 7 of the Penal Code. A person, who promises, offers or gives an unlawful benefit to a person in the service of a businessman, a member of the administrative board or board of directors, the managing director, auditor or receiver of a corporation or of a foundation engaged in business, or a person carrying out a duty on behalf of a business intended for the recipient or another, in order to have the bribed person, in hislher function or duties, favour the briber or another person, or to reward the bribed person for such favouring, shall bc sentenced for the offence to a fine or to imprisonment for at most two years.

Provisions on acceptance of a bribe in business are included in Chapter 30, Section 8 of the Penal Code. A person referred in section 7, who demands, accepts or receives a bribe for himselflherself or another for favouring, in hislher function or duties, the briber or another as a reward for such favouring commits the offence in question. The punishment for acceptance of a bribe in business is a fine or an imprisonment for at most two years.

According to Chapter 2, Section 16 referred to under the item 2. 1. 1. above, the financial benefit of the offence to the offender shall be declared forfeited to the State. The provision is

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applied to the financial benefit gained by a person giving a bribe as well as the one of a person accepting a bribe.

3.3. Aggravated/arm/or bribery

Prerequisites on which bribery in the public sector can be deemed as aggravated are described under item 2. 1. 1. above. In practise, an act that is systematic or long lasting is most often classified as an aggravated one. Conspiracy to commit bribery is not punishable as such. General grounds for increasing the punishment are listed in Chapter 6, Section 2 of the Penal Code. These are:

firstly, the criminal activity has been methodical secondly, the offence has been committed as a member of a group organised for serious offences thirdly, the offence has been committed for remuneration and fourthly, the offender has a criminal history.

These grounds can be applied to bribery offences as well.

3.4. Accounting

It is very easy to conceal wrong receipts in accounting. For that reason it is very important to reveal all miscalculating. In Finland we have this kind of paragraphs in our law. We can think about a situation where General Manager of some company have decided to add false receipts in accounting of company purposing to hide the true meaning of those receipts.

All forms of modus operandi referred to in the question may constitute the essential elements of an accounting offence that is described in Chapter 30, Section 9 of the Penal Code. According to the section, a person with a legal obligation to keep accounts, hislher representative or the person entrusted with the keeping of accounts intentionally neglects in full or in part the recording of business transactions or the balancing of the accounts, enters false or misleading data into the accounts, or destroys, conceals or damages account documentation and in this way essentially impedes the obtaining of a true sufficient picture of the financial result of the business of the said person or of hislher financial standing, commits an accounting offence. The punishment for an accounting offence is a fine or an imprisonment for at most three years. In some cases, the acts could be considered as forgery referred to in Chapter 33, Section 1 of the Penal Code.

According to the provisions of Act on Business Prohibition, a court may issue at demand by public prosecutor a business prohibition to a private entrepreneur or a representative or official of an business organisation for three years and at most seven years, if slhe has essentially neglected legal obligations or committed an offence that cannot be considered as a minor one in hislher business activities. Thus, bribery committed in business may serve as a basis for issuing a business prohibition.

3.5. Money laundering

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Money laundering is also a very good way to conceal the origin of some money, for example the money becoming from bribery and corruption.

Provisions on money laundering are included in the same context as the ones on a receiving offence, namely Chapter 32, Section 1 of the Penal Code. According to sub-section 2 of the section, a person shall be sentenced for a receiving offence if

(1) s/he receives, transforms, conveys or transfer assets or other property which he/she knows to have been gained through an offence or to replace such assets or property, in order to conceal or launder its illicit origins or to assist the offender in avoiding the lawful sanctions provided for the offence or

(2) conceals or launders the true nature, origin, location or transactions or rights pertaining to the property referred to in subparagraph (1) or

(3) fails to make a notification referred to in Section 10 of the Act on the Detection and Prevention of Money Laundering or in violation of the prohibition provided in Section 10, discloses a notification referred to therein. The punishment for a receiving offence is a fine or an imprisonment for at most one year and six months.

Offences that could serve as predicate offences for money laundering are not specified in the provision, but it is sufficient that it is a question of proceeds from crime. Therefore, assets gained by committing bribery may be laundered.

3.6. Criminal organisations

Establishing, leading or being a member in a criminal organisation is not currently punishable in Finland. However,. the Finnish government introduced a bill with a law proposal to the parliament on criminalizing a membership in a criminal organisation. in a way that the criminalization would meet the requirements set by the respective ED Joint Action. According to the proposed amendment of Chapter 17, Section la, a person who takes actively part in such activities of a criminal organization that are aimed either to commit offences for which the punishment is an imprisonment for at least four years or to commit an offence referred to in Chapter 11, Section 8 i.e. incitement to racial hatred, if this offence was committed, would he sentenced for participation in the activities of a criminal organization to a fine or to an imprisonment for at most one year. A criminal organization is defined in the proposal as such organised association of at least three persons that exists for a certain time arid members of which operate in concert to commit the above mentioned offences.

This matter is under reading in the parliament.

3.7. Corporate criminal liability

Provisions on corporate criminal liability of legal persons are included in Chapter 9 of the Penal Code. A corporation, foundation or other legal entity, in whose operations an offence has been committed, may on the request of public prosecutor be sentenced to a corporate fine, if such sanction has been provided in the Penal Code. Therefore, in relation to each offence, it must be separately stated whether the provisions concerning corporate criminal liability of legal persons are applied to it.

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", I

According to Chapter 16, Section 18 of the Penal Code, the provisions on corporate criminal liability apply to bribery and aggravated bribery. Respectively, according to Chapter 30, Section 13 of the Penal Code, the provisions on corporate criminal liability apply to bribery in business and, according to Chapter 32, Section 8 of the Penal Corle, they apply also to a receiving offence i.e. money laundering.

A corporate fine is a penal sanction with monetary amount of at least FIM 5,000 and at most F1M 5,000,000.

According to Chapter 1, Section 9 of the Penal Code, if Finnish law applies to the offence, corporate criminal liability shall also bc determined according to Finnish law. According to Chapter 1, Sections 6 ~nd 11 of the Penal Code, Finnish law shall apply to an offence committed outside of Finland by a Finnish citizen, if the offence is punishable also under the law of the place of commission and a sentence could have been passed for it also by a court of that foreign State. Thus, if such offence has been committed in the business of a legal person, for which the actual offender can be sentenced in accordance with Finnish law, then a corporate fine may be imposed to this legal person.

3.B. Jurisdiction

According to Chapter 1, Section 1 of the Penal Code, Finnish law is applied to an offence committed in Finland. According to Section 10 of the same Chapter, an offence is deemed to have been committed both where the criminal act was committed and where the consequence contained in the statutory definition of the offence became apparent.

As it was explained under the item 2.6.1, Finnish law requires dual punishability for processing an offence committed abroad by a Finnish citizen in concreto, i. e, a sentence for the offence could have been passed also by a court of that particular foreign State, for example, the right to institute charges must not have fallen under the statute of limitations. Furthermore, a person, who is permanently resident in Finland and a person, who is caught it in Finland and who is a citizen of Denmark, Iceland, Norway or Sweden or is permanently resident in one of those countries are deemed equivalent to a Finnish citizen.

According to Chapter 1, Section 8 of the Penal Code, Finnish law shall apply to an offence committed outside of Finland by a foreigner which, under Finnish law, may be punishable by imprisonment for more than six months, if the State in whose territory the offence was committed has requested that charges be brought in a Finnish court or that the offender be extradited because of the offence, but the extradition request has not been granted.

d. Preventive measures

Section 2, sub-section 3 of the Constitution of Finland describes the principle of constitutional State: the exercise of public powers shall be based on an Act. In all public activity, the law shall be strictly observed. Provisions on liability of a public official arc included in Section 118 of the Constitution. According to the Section, a civil servant is responsible for the lawfulness of his or her official actions, The section states also that everyone, who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public task. shall have the right to request that

7

the civil servant or other person in charge of a public task be sentenced to a punishment and that the public organisation, official or other person in charge of a public task be held liable for damages.

Provisions on general obligations of a public official are included in Chapter 3, Section 8 a and Chapter 4 of Act on Civil Servants (a special prohibition to accept financial benefit is included in Chapter 15). Punishment for breaking these obligations are provided in Chapter 40 of the Penal Code. Sections 1 - 3 of the Chapter on acceptance of a bribe, aggravated acceptance of a bribe and bribery violation as well as Sections 7 and 8 on abuse of a public office and aggravated abuse of a public offence may be applied. In addition to the provisions of Act on Civil Servants and the Penal Code, provisions of Act on Administrative Procedure (e.g. Sections 10 and 11 on incompetence due to the likelihood of bias) guide actions of public officials.

Section 29 of the Constitution of Finland prescribes in prohibition of an imperative mandate that requires independence and freedom from all binding orders from members of parliament. They have not criminal liability for accepting a bribe. Criminalization of active and passive bribery of members of parliament is under preparation, and the aim is that it will enter in force in the context of implementation of the Council of Europe's Criminal Law Convention on Corruption being under preparation.

Furthermore, ethical norms specific to different fields of administration are planned e.g. for the police. A working group on ethical matters of the Ministry of Finance submitted its report on lill June 2000. It contains e.g. recommendations for procedures to identify ethical situations in civil service departments.

There is no specific controlling system focusing on bribery in Finland. As gIvmg and accepting bribes is punishable, anyone can report observed cases to the police and for forwarding it a court for consideration.

Both advocates and accountants have their own ethical norms. Provisions on e.g. an advocate's obligation to adhere to proper practise in all hislher activities and other obligations are prescribed in Advocates Act (e.g. Section 5).

Auditing Act includes provisions on the obligation to observe good auditing practise (Section 16) as well as on an auditor's independence (Section 23) and disqualification (Section 24). Provisions on good aUditing practise in the field, of public administration are included in Section 6 of Act on Public Administration and Finance. Provisions of independence of an auditor and a firm of auditors as well as disqualification of an auditor are included in Sections 4 and 5 of the mentioned Act.

Each civil service department has its own auditing unit to control the use of public finances. State administration is controlled by the State Auditor's Office. Unlawful use of public finances by a public official is punishable in accordance with Chapter 40 of the Penal Code as abuse of public office, aggravated abuse of public office or as violation of official duty or negligent violation of official duty (Sections 10 and 11 of the Penal Code).

Ministers have an obligation to present an account of hislher commercial activities and significant assets (Section 63 of the Constitution of Finland). The same obligation applies to the highest public officials (Chapter 3, section 8 a of Act on Civil Servants). Members of

8

parliament have a voluntary arrangement. The Speaker's Council of the parliament has issued instructions as recommendations for presenting an account on duties and financial bonds not being part of the scat (1995). Provisions on the obligation of a candidate elected in public election to give an account on his/her campaign finance have been prescribed in Act that entered in force on 15th May 2000. Given accounts are displayed for public inspection.

Act on Public Procurement based on ED directives, contains provisions on tendering of public contracts in order to secure equal and transparent treatment. The matter can be forwarded to the Office of Free Competition and its decision can be appealed to the Supreme Court of Administration.

Damages caused to a candidate, tenderer or provider must be compensated from public in accordance with Section 8 of Act on Public Procurement, if the Act has been violated in the context of tendering.

An eliminated candidate cannot have the signed contract declared void, although a formal possibility for doing so exists. However, Act on acts according to the law of property on which voidability in principle could be based concerns contracting partners only. It is difficult for an eliminated candidate to prove that he would have been selected instead the selected candidate. Costs caused by tendering will however be compensated, if law has been violated in the selection.

Finland has replied to the questionnaire referred to in footnote 2. The Multidisciplinary Group on Corruption of the Council of Europe has been separately informed about the recently enacted Act on Reporting Candidate's Campaign Finance that entered in force on 15th May this year.

Information has been submitted to the PC-R-EV Committee (Act on Preventing and Clearing Money Laundering). Supplied information can be disclosed to GRECO evaluators.

Costs caused by bribery are not deductible (e.g. Supreme Administrative Court, ref. 198:515265). Clarification of legislation is pending. (Donations for political purposes are not deductible, either. The reason for this that they are considered as professional expenses or a corporation)

Act on Administrative Procedures contains provisions on grounds for disqualification of public officials (Section 10). Inappropriate conduct in office is punished as an unfair competition offence (Chapter 30, Section 2 of the Penal Code). The aim of the Act on Restraints of Competition is to prevent mainly harmful restraints of competition.

The culture of administration the free media and legislation guarantee a certain level of public awareness. Public is aware of dangers of bribery e.g. via cases presented in the media. Ethical principles and models are under consideration.

Freedom of expression and access fight to public information are basic rights protected by the Constitution of Finland (Section 12). Act on pUblicity of the activities of public authorities contains provisions on pUblicity of official documents. The main rule is that the public has access to official documents.

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" e. Structures

Prevention of bribery falls to the duties of the police as far as it is a question of crime prevention. Various administrative measures taken by different authorities, e.g. regulations concerning financial policy (in practise, the most important are those concerning official journeys) and statements concerning incompetence due to the likelihood of bias, are important in prevention of bribery.

In addition, investigation of offences is the responsibility of the police, although prosecutors take part in targeting investigations in more serious criminal cases. The National Bureau of Investigation as the national central authority investigates criminal cases having wider national significance or coverage and connections abroad. The highest prosecution authority, the Office of the Prosecutor General, may take over prosecuting in the most significant criminal cases. The only exception to the normal order of criminal investigation is a case where a police officer is suspected of an offence (all offences included). In these cases, public prosecutor is in charge of investigation conducted by the police.

So there are no specialised services, charged specifically with combating corruption.

In principle, criminal processes in Finland are based on mandatory prosecution. However. relatively extensive rights of the prosecutors to waive measures shape this main rule towards the principle of discretionary prosecution. These significant rights were given in 1990 by a law amendment. Grounds for waiving measures have been written relatively loose on law, but these provisions have been specified by instructions given by the Prosecutor General.

A plaintiff has a secondary right to press charges and it serves as the basic legal remedy against discontinuing prosecution for unjustified reasons. If prosecutor does not press charges or waives prosecution, a plaintiff has the right press charges. This right applies also to cases where prosecutor has not pressed charges after imputation. Furthermore, all parties suffered from an offence in office committed by a public official have a primary and parallel fight together with prosecutor to press charges. In bribery cases, as in any other criminal cases, these regulations concerning a plaintiffs right to press charges require that a person (or a legal person) as a victim of crime is deemed to have a status of a plaintiff. Citizens or civic organizations do not have any specific right to press charges in relation to any particular type of an offence. However, all citizens have the right to report a criminal suspicion to the police for investigation by lodging a criminal complaint.

One more legal remedy is the Prosecutor General controlling the decisions made by public prosecutors. There are no limitations on appealing to the Prosecutor General.

2. Co-operation in the international level

Finland has signed the Council of Europe's Criminal Law Convention on Corruption (lh November, 1998) on 27th January, 1999. A government bill including the amendments required by the Convention is under preparation in the Ministry of Justice (in connection to the amendment of provisions on offences in office; a working group proposal finished in May 2000 is currently in circulation for comments). It is intended that the government proposal will be introduced to the parliament in the end of 2000, and on this basis, the Act may enter in force in the summer of2001.

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Finland signed the Council of Europe's Civil Law Convention on Corruption (9th September, 1999) on 8th June, 2000. The government proposal is under preparation in the Ministry of Justice. It is likely to enter in force at the same time as the Criminal Law Convention.

The Convention, drawn up on the basis of Article K.3 of the Treaty on European Union, on the protection of the European Communities' financial interests (signed in Brussels on 26 July 1995).

The Protocol, drawn up on the basis of Article K.3 of the Treaty on European Union on the protection of the European Communities financial interests (signed in Dublin on 27th

September 1996).

The Convention, drawn up on the basis of Article K.3(2)( c) of the Treaty on European Union, on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union (signed in Brussels on 26th May 1997).

The Convention on combating bribery of foreign public officials in international business transactions (signed in Paris on 17th December 1997).

International Legal Assistance in Criminal Matters Act and Decree are the most important provisions concerning legal assistance afforded by Finland. The purpose of law was to create a well-working set of regulations based on which the Finnish authorities could afford legal assistance in criminal matters as extensively as possible and avoiding unnecessary formalities. For example, our legislation does not require a treaty between Finland and a requesting State. Finland will afford legal assistance to the extent it is defined in our national laws. The scope of application of the Act is very wide and there are no limitations based on types of offences. Provisions on circumstances where the Finnish authorities must refuse of granting legal assistance are included in Section 12 of the Act mentioned above. Discretionary grounds, i.e. -cases where the Finnish authorities may refuse of affording legal assistance arc included in section 13 of the same Act. There are no cases known which Finland would have refused legal assistance in suspected bribery cases.

The Finnish central authority referred to in Legal Assistance in Criminal Matters Act and in international agreements in general is the Ministry of Justice. However., the National Bureau of Investigation serves as the central authority referred to in bilateral agreements on crime prevention signed as treaties. As the Ministry of Justice forwards requests for legal assistance, it is responsible for compiling statistics on them. Finland has made a reservation in the European Convention on Mutual Assistance in Criminal Matters stating that in Finland also the police authorities arc judicial authorities referred to in the Convention. The National Bureau of Investigation compiles statistics on requests for legal assistance made and received by the police.

However, statistics compiled by the Ministry of Justice and National Bureau of Investigation do not give a reliable picture on requests for legal assistance concerning bribery, because the keyword used in recording the cases is not 'bribery', but most often it is the name of a suspect. The defective situation concerning the statistical data is also reflected by the fact that when direct contacts are used, the case is not recorded in a centralised manner by any authority.

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According to the Ministry of Justice, the number of requests concerning corruption received in Finland during the five past years is at most five. There are no recorded cases on requests concerning bribery made in Finland. According to the Ministry of Justice, the cases are very rare and the given figures are based on recollections of the officials handling requests for legal assistance.

Conditions for extradition are included in Act on Extradition in Criminal Cases (so-called general Extradition Act) and in Act on Extradition in Criminal Matters between Finland and other Nordic States. The main rule is that Finnish citizens cannot be extradited. However, a Finnish citizen can be extradited to a Member State of the European Union and to another Nordic State for court proceedings.

According to the general Extradition Act, a person cannot be extradited, unless the act referred to in the request committed in similar circumstances in Finland constitutes the

.. essential elements of an Offence for which the maximum punishment is at least an imprisonment of one year. According to the Nordic extradition act, extradition is possible for any other acts, except those resulting in a fine. Finland extradites Finnish citizens for bribery on the above-described limitations.

Therefore, a situation when Finland would not extradite a Finnish citizen suspected for bribery relates to the fact that the target of a request is a Finnish citizen. In these situations, a foreign State must make a request to Finland for taking measures in pressing charges in Finland. The case will be then investigated as any other national criminal case and after pre-trial investigation, it will be forwarded to prosecutor for consideration of charges. In case, charges will be pressed, General Prosecutor will give an Order for Prosecution. As. a rule, a case cannot be taken to be considered by a court in Finland without an Order for Prosecution when a criminal Act has been committed abroad.

6. Conclusions

As we have seen above the corruption and bribery are very rare in Finland. We can look after the reasons for that but it is very difficult to find clearly and simply reasons why it is so. The history of Finland explains some of it. I mean that we have a Constitution Law which is very strict. Secondly we have a honesty body of civil servants. Thirdly, our society in Finland is very explicit, so it is very difficult to find an officer who takes bribery himselflherself. If we are thinking about our nation we can observe that in Finland lives only 5,5 million peoples. We have also a very active media which is very good because just media is called ''thirdly state authority". Media is very important because our court proceedings are normally open and everybody can go to the court to see and hear what has happened.

Journalists (and everybody) can also get an enormous amount of public documents and supervision by that way is very effective.

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NATIONAL REPORT

FOR

DENMARK

By Torben ISHeY, Chairman a/Transparency International Denmark

1. The organisation of the fight against corruption on the national level

a. General policy

a.1. What general policy does your country have towards corruption (is it an issue or not; focus on repression and/or prevention, ... )?

Being nearly a country without any corruption according to the evaluations through the last five years (CPI-index) the general policy against corruption in the Danish society is mainrely focusing on the cases abroad. The Danish government has this year implemented and ratified an anti-corruption law according to OECD's and TI's recommendations. The law is for the moment believed to be the toughest legal structure in Europe.

On the other hand the Danish political administration has to consider the risks of corruption concerning the uni- and multilateral economic support in the developing countries.

The Danish Industry regards the competition based on corruption in international business transactions as a major problem due to lack of serious political and legal interventions in more corrupted areas inside the European Community as well as in other parts of the world.

In concluding words the issue of corruption is not a real political focus as the Danish society is functioning very transparent and without any devastating scandales.

a.2. Do you consider this policy satisfactory or not? If not, in your opinion what are the main deficiencies?

The main deficiencies are the reluctant political attitude to the fact of international corruption per se. As mentioned above being a not-corrupted society in a relative corrupted world the agenda and fight against corruption have a relatively low priority. It is relevant for the Danish internal as well as external political profile to focus on corruption in a more comprehensive way according to the fact of globalisation.

b. Statistics

b.1. To what extent and from which sources are statistical data available concerning: - corruption - international co-operation in corruption cases - the link between corruption and organised crime - the link between corruption and money laundering?

1

Statistical data: a) on corruption: few cases, mainly data available through the media and the legal system. b) cases not available, if any. There is and has not been cases involving a Danish form in active or passive corruption. The environment of business transactions in this matter does not invite for publicity. It is although a fact that Danish firms have experiences outside DK with corrupt activities. c) The link between corruption and organised crime and money laundering is well known and some statistics may be available form the legal administration but will normally be of a more secret nature during investigation. The link to drug-trafficking and drug-dealing is another interesting field which should be considered much more seriously in the international arena. TI-DK regards the fight against corruption as a part of the so-called Harm Reduction policy (a general concept to reduce harm and risk for drug-addicts)

b.2. Can you provide these data? If they are not available, can you make an estimation?

Data may be available but the request for these should be very accurate. Some of the data may be restricted due to criminal investigation.

Free access to information in the public sector forms the is general status.

c. Repressive legislation

c.l. Which types of behaviour can be sanctioned as forms of corruption (bribery, trading in influence, ... )? Active andlor passive corruption? In the public and lor the private sector?

Attached the Danish Law.

c.7. Do you consider this legislative framework satisfactory? If not, in your opinion what are the main problems?

Yes. The legal framework is OK. Relevant too is the strong link to the press and the Law of free access to information in the public administration.

d. Preventive measures

d.l. Does the law contain provisions, destined to prevent corruption (auditing standards, financial disclosure obligations, codes of conduct, ... )?

Preventive measures exist on all levels including auditing standards, taxation rules, codes of conducts etc. and local policies. The opinion itself vitali sed through the general popUlation as well as from the press reacting against public and private mismanagement, child-labour, environmental unawareness and the basic Human Rights are well-established political objectives and are (still) considered as political guidelines for the further democratic process.

2

By this, I mean that the public OpInIOn is due to an active media and high level of informations able to establish a relevant response to what happends in the society - dealing from a political attitude to childlabour in som (third-world) countries to weaponindis try, HR etc.

This very close dialoque within a society is important concerning transparency

e. Structures

e.1. Has your country established specialised services, specifically assigned with the combat against corruption? If so, what is the institutional context (e.g. established within the police), the composition, the functions and the powers of these services?

A formal structure and service assigned with the combat against corruption is not established in the administrative public sector. The primary steps are still based on an international level (ED/OLAF) and in the Council of Europe. The NGO Transparency International is in fact the only organisation with a full-scale approach towards corruption. The public administration and the services have an acceptable function and power but do not regulate the political agenda and by that means do reflect a relative reluctance for a more adequate strategy for prevention and intensified combat.

The Ombudsman institution is important. The right to access into any public administration is important too. The legal system and police is rules in a same transparent way and the police corps and judges are normally believed to be rather un-corrupted. You may of course find som weak elements - but in these cases it is based on simple criminal activities. There has been no cases of corruption within the police or legal system for many years. The latest case belongs to the post-war (Second WW) society, with organised crime and corrupted policemen. As DK has implemented a very tough law against corruption we still have no cases. The Danish Industry is generally keeping a high morality - and loosing jobs. This issue has to be discussed in DK to prevent a more corrupt behaviour because of inadequate competition.

Some steering commitee will be established by politicians or public administration or expert group to analyse the police or legal system if the police orr judges are belived to have done anything wrong.

e.2. Do you consider this structural framework satisfactory? If not, in your opinion what are the main problems?

TI-DK is an acceptable platform. The only but serious problem is lack of funding which gives a slow speed.

The Ombudsman institution is important. The right to access into any public administration is important too. The legal system and police is rules in a same transparent way and the police corps and judges are normally believed to be rather un-corrupted. You may of course find som weak elements - but in these cases it is based on simple criminal activities. There has been no cases of corruption within the police or legal system for many years. The latest case belongs to the post-war (Second WW) society, with organised crime and corrupted

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policemen. As DK has implemented a very tough law against corruption we still have no cases. The Danish Industry is generally keeping a high morality - and loosing jobs. This issue has to be discussed in DK to prevent a more corrupt behaviour because of inadequate competition.

Some steering commitee will be established by politicians or public administration or expert group to analyse the police or legal system if the police orr judges are belived to have done anything wrong.

2. International co-operation regarding corruption

a. Supply

Co-operation should for be done through the TI-network. TI-DK has a good reputation and a fine contact to members of the Parliament.

b. Demand

Co-operation should be divided into factual cases and dealt with by the legal system and principles according to code of conducts, management, education, legal adjustment and the congruent efforts in the international society and especially in the EU. The gap between the corruption rates inside the nations of EU may be an barrier towards a truly democratic and economic integration of the nations.

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§ 122

Annex

The Danish Penal Code concerning corruption

Any person who unlawfully grants, promises or offers some other person exercising a Danish, a Foreign or an International public office or function a gift or other privilege in order to induce him to do or fail do anything by which he would be guilty of a breach of duty shall be liable to a fine, simple detention or imprisonment for any term not exceeding three years.

§ 144

Any person who, while exercising a Danish, a Foreign or an International public office or function unlawfully receives, demands or accepts the'promise of a gift or other privilege shall be liable to simple detention or to imprisonment for any term not exceeding six years or, in mitigating circumstances, to a fine.

Excerpts from the report on the motion to amend The Penal Code during the negotiation, which is finished now. The law is as above.

A minority (different parties of the Parliament) believes that the implementation of, among other things; the EU Convention on Bribery, the OECD Convention on Bribery, and the European Council's Penal Convention are, on the Danish part, important contributions to combat corruption and bribery. In order for the Conventions to have the intended effect, the minority meanwhile finds it crucial that persistent effort be made to induce other countries to accede to and to implement the Conventions in a similar manner. Only when all countries have introduced the same rules will it be possible to do something about corruption and bribery, just as it is a pre-condition of avoiding the distortion of competition and of seruring similar conditions for businesses.

With the adoption of this Bill, bribery is criminalized such that Danish Businesses at home and abroad are liable to punishment for under-the-table-payments to secure contracts. It is clear that this example falls within the core of what the Minority whishes to criminalize. Meanwhile it is also quite clear that situations will occur, where the Danish Businesses will be met with demands of payments/grants for services rendered, which do not fall within the core of what constitutes bribery and which the Minority does not wish to see affected by this Bill.

In many parts of the world, Danish Businesses are met with conditions and traditions which are quite remote from Danish civic culture and the Danish welfare system. These may be conditions such as:

• salary systems based on external supplementary benefits • the absence of a functioning system of public authority

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.. • different culturally conditioned social conventions

,

which render nonns for appropriate behaviour in a given country very different to those which exist in Denmark. It is often the case that a grant is necessary for a business to achieve what it is already entitled to.

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NATIONAL REPORT

FOR

CYPRUS

By Eva ROSSIDOU-PAPAKYRIACOU, Counsel of the Republic, Attorney General's Office

1. The organisation of the fight against corruption on the national level

a. General policy

a.1. What general policy does your country have towards corruption (is it an issue or not; focus on repression and/or prevention; ... ) ?

Even though corruption is becoming an increasingly international phenomenon, in Cyprus it does not constitute a serious problem.

However, the Cypriot authorities recognising the increasing thread of Corruption Offences internationally, have adopted legislative and practical measures to prevent and combat this problem.

Cyprus has a comprehensive legal and administrative framework against corruption. Legislation criminalising active and passive corruption is in place since many years ago. Preventive measures have also been adopted in order to minimise possible acts of corruption.

The Government is committed and has the political will to give priority in adopting all international instruments in this area.

Cyprus is active in addressing corruption internationally as well, with its participation in the work carried by International Organisations. It is to be mentioned the participation of Cyprus in the Multidisciplinary Group of Corruption (G.M.C.) of the Council of Europe and the Group of States Against Corruption (GRECO). In fact Cyprus was one of the very first countries which joined GRECO of which it is a founder member, and signed the Council of Europe Criminal Law Convention on Corruption as soon as it was appeared for signature on 27.1.1999. Furthermore, Cyprus volunteered to be among the first 10 countries to be evaluated by GRECO before the end of2000.

It should also be noted that the Cypriot Authorities organise international and domestic Seminars and Conferences to address issues related to Corruption. As an example is the 4th

European Conference of Specialised Services in the Fight against Corruption - organised in co-operation with the Council of Europe, in Limassol-Cyprus in October 1999. It is also worth mentioning the organisation of the OSCE Parliamentary Seminar on Organised Crime and Corruption in Cyprus, between 4-5 October 2000.

The Parliament of Cyprus is also very active in addressing this phenomenon. A special Committee within the Parliament was set up during the recent years to exercise control over the Public Sector including possible Corruption instances and to suggest further measures to minimise opportunities of corruption.

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a.2. Do you consider this policy satisfactory or not? If not, in your opinion what are the main deficiencies?

The policy of the Republic of Cyprus against corruption is considered to be satisfactory. However, if a need for any further measures in the future appears, there is the political will to adopt additional measures.

b. Statistics

b.t. To what extent and from which sources are statistical data available concerning: - corruption - international co-operation in corruption cases - the link between corruption and organised crime - the link between corruption and money-laundering?

Statistical data are not available. However, it is estimated that corruption does not constitute a serious problem in Cyprus. It must be noted that a very few cases were investigated during the last years and were brought before the Cyprus Courts.

As regards international co-operation, the Cypriot competent authorities have assisted foreign authorities in corruption cases in a number of cases.

Organised crime in Cyprus is at very low level; it has not reached alarming dimensions. There are also no links with organised crime groups of other countries. It could be said with certainty that in Cyprus there is no connection between corruption and organised crime.

Concerning money laundering, it could be said that there is a link with corruption, since at a certain stage, even in the few cases of corruption that occur in Cyprus, the proceeds of corruption need to be laundered in order to appear legitinate, by entering the real economy.

The competent authorities, recognising the link between corruption and money laundering, in 1998 amended the anti-money laundering legislation, namely the "Prevention and Suppression of Money Laundering Activities Law of 1996" in order to include in the list of "predicate offences", corruption offences for the purposes of the application of the aforementioned legislation.

c. Repressive legislation

c.t. Which types of behaviour can be sanctioned as forms of corruption (bribery, trading in influence, ... ) ? Active and/or passive corruption? In the public and/or the private sector?

In Cyprus corruption in various forms constitute a criminal offence.

Specifically, the Criminal Code (Cap. 154) includes a series of specific offences covering official corruption (active and passive), extortion by public officers, abuse of office, frauds and breaches of trust and willful neglect of official duty, receiving property to show favour,

2

false assumption of authorities certifying false claims and other offences against the administration of lawful authority.

A relevant Law is the Law dealing with the illicit enrichment by public officials or elected representatives (Law No. 65/1995) which criminalises the illegal acquisition of property by some Government Officials mentioned in the Law, including Ministers, Members of the Parliament and other Officials. This Law includes provisions for the confiscation of assets so acquired.

Furthermore, on 14.7.2000 with the Law No. 23 (111)/2000, Cyprus ratified the Council of Europe Criminal Law Convention on Corruption. Therefore, according to the legal system of Cyprus the various provisions concerning the offences included in the Convention have become domestic legislation.

With the ratification of the Council of Europe Criminal Law Convention on Corruption, the following offences were incorporated in the domestic legislation:

Active bribery of domestic public officials. Passive bribery of domestic public officials. Bribery of members of domestic public assemblies. Bribery of foreign public officials. Bribery of members of foreign public assemblies. Active bribery in the private sector. Passive bribery in the private sector. Bribery of officials of international organisations. Bribery of members of international parliamentary assemblies. Bribery of judges and official of international Courts. Trading in influence.

It should be noted that with the ratification Law (23(111)/2000) the sanctions for the above mentioned offences have been increased from 5 years imprisonment to 7 years imprisonment.

Additionally, the Customs and Excise Law, No. 82 of 1967, contains provisions related to corruption (active and passive) of the members of the Customs and Excise Department.

Furthermore, Cyprus is in the process of signing and ratifying the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. It is noted that Cyprus has already submitted application for accession. The time of accession to the Convention depends on the progress of the negotiations. It has also signed the Council of Europe Civil Law Convention on Corruption.

c.2. Are those legal provisions only applicable if nationals are corrupted or is their scope of application more extensive (foreigners, members of international

. t' )? orgamsa IOns, ... .

The legal provisions criminalising corruption are applicable not only to nationals but their application is more extensive. They are applicable to foreigners, members of the Parliament and all that who are covered by the relevant provisions of the Council of Europe Criminal Law Convention on Corruption which was ratified by the Republic of Cyprus.

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c. 3. Which sanctions can be imposed (imprisonment, fine, confiscation measures, deprivation of rights, administrative sanctions, blacklisting, ... ) ?

Further to the sanctions that can be imposed which were mentioned I the reply to (c) 1, confiscation measures can be applied according to the relevant provisions of the "Prevention and Suppre$sion of Money Laundering Activities Law".

Also administrative measures may be taken, such as exclusion from public tenders, disqualification from the practice of commercial activities (e.g. withdrawal or suspension of permit for banking activities).

c.4. To whom are these legal provisions applicable (physical persons and/or legal persons) ?

These legal provisions are applicable both to physical (natural) and legal persons. That is so, not only with the relevant provisions of the Council of Europe Criminal Convention on Corruption, but also under the Interpretation Law (Cap. 1), which provides that the term "person" includes both natural and legal person.

c.S. What is the territorial scope of application of the provisions?

The territorial jurisdiction over these offences is provided by the Criminal Code, (Cap. 154) and specifically, by section 5 (Territorial and extra-territorial application) which is the following:

"5.-(1) The Criminal Code and any other Law creating an offence are applicable to all offences committed-

(a) within the territory of the Republic; or (b) within the Sovereign Base Areas by a Cypriot against or in

relation to a Cypriot; or (c) in any foreign country by a citizen of the Republic whilst in the

service of the Republic; or (d) in any foreign country by a citizen of the Republic if the offence

is one punishable in the Republic with life imprisonment or imprisonment exceeding two years and the act or omission constituting the offence is also punishable by the law of the country where it was committed:

(e) in any foreign country by any person if the offence is-

(i) treason or an offence against the security of the Republic or the constitutional order;

(ii) piracy; or (iii) connected with the coin or currency notes of the

Republic; or

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(iv)

(v)

related to the unlawful dealing in dangerous drugs; or one to which, under any International Treaty or convention binding on the Republic, the law of the Republic is applicable.

(2) No criminal proceedings shall be instituted in the Republic in respect of an offence committed in a foreign country if the accused having been tried in such country for such offence was either convicted or acquitted. "

Furthermore, with the ratification Law of the Council of Europe Criminal Law Convention on Corruption (Law No. 23(111)/2000, dated 14.7.2000), the jurisdiction of the Cyprus Courts is extended, with a specific provision of the Law, to the cases of offences involve persons who are officials of international organisations, members of international parliamentary assemblies and judges and officials of international courts.

c.6. Does the law contain particular provisions relating to the burden of proof in corruption cases (reversal, division, protection of whistle blowers, ... ) ?

The Law does not contain particular provisions relating to the burden of proof in corruption cases. The same rules are applicable as in the case of all criminal offences. However, the necessary protection to "whistle blowers" or other witnesses could be offered.

c.7. Do you consider this legislative framework satisfactory? If not, in your opinion, what are the main problems?

The legislative framework is considered to be satisfactory, since it criminalises all forms of corrupt behaviour and provides for severe penalties.

d. Preventive measures

d.l. Does the law contain provisions, destined to prevent corruption (auditing standards, financial disclosure obligations, codes of conduct, ... ) ?

Concerning preventive measures in the Public Sector, the Auditor-General of the Republic, an independent Officer, whose appointment and functions are provided in the Constitution is responsible for the Public Expenditure and Control.

The Auditor-General controls all disbursements and receipts and audits and inspects all accounts and other assets administered and of liabilities incured, by or under the authority of the RepUblic. For this purpose he has the right of access to all books, records and returns relating to such accounts and to places where such assets are kept.

It is to be mentioned that every year the Auditor General prepares the Annual Report and the findings of the auditing of the assets administered is submitted to the Government and to the Attorney General. The Report is examined thoroughly by the Attorney General's Office for

5

any possible criminal or disciplinary liability, including corruption suspicions, against any public employee, in order to take the necessary measures.

Of great importance is the adoption of preventive measures in the area of tendering of public contacts. A special Law ensuring transparency and equality in the tendering of public contracts is in place as follows:

The area of tendering of public contacts is governed by the Public Procurement Law 102 (1)/97 and the Regulations thereto (No 104/99) which regulate the procedure to be followed, and the general principles applicable to ensure transparency, promotion of competition and the securing of fair and equal treatment (non-discrimination) of all suppliers, contractors and Service providers.

The law is based on the principles applicable in the European Union and also on the UNCITRAL Model Law on Procurement of Goods, Construction and Services.

The Accountant General being the President of the Main Tender Board and his office, the Treasury Department of the Ministry of Finance, acts as the competent authority for the overall monitoring of public procurement issues.

The Main Tender Board and the Departmental Tender Boards are the institutions responsible for implementing the provisions of the Public Procurement Law of 1997 and its relevant Regulations. Furthermore, committees for the evaluation of tenders at each Department, as well as technical committees responsible for the preparation of technical specifications and for the approval of the technical specifications, and the acceptance of goods after technical inspections, can be set up by the competent authority either on a permanent or on an ad-hoc basis.

During the tendering stage, the Law enables all tenderers, to submit to the Main Tender Board comments, suggestions, and complaints in relation to the technical specifications and the general terms of the tender. The Main Tender Board considers such comments and suggestions and investigates the complaints, and in justified cases corrective measures are taken, such as modification of the tender documents or specifications.

Under the national law, decisions taken by the Tender Boards to award, reject or cancel a tender are treated as administrative decisions subject to judicial review under Article 146 of the Constitution.

Such administrative decisions are separable from any contract entered into by the administration pursuant to an award of tender - this being a matter in the domain of private law.

An aggrieved tenderer may challenge the validity of a decision to award, reject or cancel the tender on various grounds, including unequality of treatment and infringement of the principles of free competition and secrecy. The judicial review extends, inter alia, to the terms upon which the tenders are invited as well as to the evaluation procedures and recommendations leading to the award. Interim measures are not available to an aggrieved tenderer at the pre-award stage. However, once a tender has been awarded, a provisional order suspending the award may be obtained pending the judicial review.

6

Annulment of the relevant act or decision gives the aggrieved tenderer the right to instigate legal proceedings in a Civil Court for just and equitable damages pursuant to Article 146.6 of the Constitution. This right although arising from the action of the administration in the domain of public law, is a private right associated with the loss suffered by a successful litigant before a revisional Court. It is ancillary to judicial review, as a measure necessary for its effectiveness. Primarily, it entitles the injured party to recover damages not remediable by proper administrative action. The jurisdiction of the Civil Court is limited to the ascertainment of the loss and its quantification.

The above mentioned procedure minimises opportunities for corruption and safeguards the necessary transparency.

Concerning codes of conduct for public employees, the Public Service Law includes a Code of Conduct which must be followed.

This Code of Conduct regulates, inter alia, their duties and responsibilities, including provisions to prevent corrupt behaviour, and provides for disciplinary measures, in cases of violation of such provisions. The Body which is responsible among other functions, to take disciplinary measures against public officials, including the power to impose sanctions (which include compulsory retirement and dismissal) is the Public Service Commission, and independent organ, provided by the Constitution.

Professional Codes of conduct for practicing lawyers and accountants are in place, covering their obligation and duty to act with honesty, integrity and within the parameters of the Law in Cyprus.

Furthermore, it should be noted that all professionals, including lawyers and accountants, have specific obligations prescribed in the "Prevention and suppression of Money Laundering Activities Law", including the obligation to report to the Cyprus Financial Intelligence Unit suspicious transactions. It is of course of great importance in the fight against corruption the obligation of all financial institutions to disclose suspicious financial transactions, which might lead to the identification of corruption offences and it is also provided in the aforementioned Law.

d.2. Do you consider this legislative framework satisfactory? If not, in your opinion what are the main deficiencies?

The legislative framework in the preventive aspect is considered to be satisfactory; however if some other measures will be necessary, the necessary steps for their adoption will be taken.

e. Structures

e.1. Has your country established specialised services, specifically assigned with the combat against corruption? If so, what is the institutional context (e.g. established within the police), the composition, the functions and the powers of these services?

7

)) )

1 '/

Investigation of corruption offences/cases is assigned to expert police officers who are members of a special team at the Criminal Investigation Department (C.LD.) Headquarters.

These police members are under the instructions of the Head of the Criminal Investigation Department, but at the operational level and in the course of the investigation of Corruption cases, they are under the control, supervision and instructions of the Attorney-General of the Republic, an Independent Officer, who is the head of the Law Office of the Republic, not falling under the control or supervision of any Ministry, and politically independent.

Furthermore, of great importance is the power of the Attorney General, to appoint independent criminal investigators in cases where a person submits a written complaint to the Attorney General concerning either a member of the Police Force in relation to any criminal offence (including corruption offences) or any person who has committed a criminal offence of economic nature.

These criminal investigators could be any officials or professionals, e.g. lawyers and accountants, who upon their appointment automatically poses all the powers of police investigators as these are set out in the Criminal Procedure Law, and have autonomy and independency in the exercise of their duties.

Furthermore, within the framework of the Commissions of Inquiry Law, the Council of Ministers may appoint one or more persons of expert knowledge and established repute, with broad powers to investigate into a state of affairs on matters of public interest and report thereon. The proceedings before such Commissions are quasi-judicial.

Concerning preventive measures in the public sector, the Auditor-General of the Republic, another independent Officer, by virtue of the Constitution, is responsible for the Public Expenditure and Control. He/she controls all disbursements and receipts, and audits and inspects all accounts of money and other assets administered and of the liabilities incurred, by or under the authority of the RepUblic.

Prosecution of corruption cases is part of the duties of the Public Prosecutors of the Attorney General's Office.

The necessary independence and autonomy of the persons or Bodies in the performance of their functions is safeguarded as follows:

The investigation and prosecution of corruption offences is under the direct supervision of the Attorney General of the Republic who is an independent officer, appointed according to the Constitution directly by the President of the Republic under the same conditions as those applied for the Judges of the Supreme Court.

The Attorney General is politically independent and cannot be removed from his Office, until he reaches the age of 68 irrespective of any changes in the Government ruling parties. Furthermore, he is the head of the Law Office, an independent department not falling under any Ministry.

He has the constitutional right for the institution, conduct, take over or discontinuance of criminal prosecutions. In the exercise of his functions/powers the Attorney General is not answerable to any authority.

8

NATIONAL REPORT

FOR

AUSTRIA

by Ernst Eugen FABRIZY, Deputy of the General Attorney, Palace of Justice Vienna

1. The organisation of the fight against corruption on the national level

a. General policy

a.l. What general policy does your country have towards corruption (is it an issue or not; focus on repression and/or prevention, ..... )?

Corruption is not an issue of policy in Austria today and had not been in the years before. Fight against corruption is no point in the declaration of the aims of the present government. Corruption is not mentioned in the latest report of national security of the year 1998, even not in connection with organised cnme, which is dealt with broadly. There is also no public discussion about corruption going on. It is seldom an issue of reports in newspapers or other media.

a.2. Do you consider this policy satisfactory or not? If not, in your opinion what are the main deficiencies?

In my opinion corruption is really a minor problem in Austria. From my experience as public prosecutor corruption rather happens in the field of public procurement, especially in construction.

~

International research confirms the opinion that corruption is not of great importance in Austria: The global anti-corruption organisation "Transparency International" newly published the "2000 Corruption Perception Index", which relates to perception of the degree of corruption as seen by business people, risk analysts and the general public. 90 countries are included in this report, and Austria ranks on place 15 of the countries in which bribes are taken least. Besides Austria has improved its position for two ranks since last year. The "1999 Bribe Payer Index" of "Transparency International" includes the 19 leading exporting countries; Austria ranks on place 4 of the countries using bribes abroad least.

b. Statistics

b.l. To what extent and from which sources are statistical data available concerning: - corruption

international co-operation in corruption cases the link between corruption and organised crime the link between corruption and money laundering?

1

'. Statistical data concerning corruption is hardly available in Austria. One of the reasons for this deficiency is the lack of a definition of corruption. The only available data is the court statistics about the conviction of persons because of certain offences (see below under section c.1), but these statistics are not sufficient, because not all regulations in question sanction a behaviour representing corruption.

Statistics concerning international co-operation in corruption cases, the link between corruption and organised crime and the link between corruption and money laundering do not exist in Austria. The two latter phenomena are broadly described in the latest report of the government on national security, but no connections to corruption are mentioned.

b.2. Can you provide these data? If they are not available, can you make an estimation?

According to the court statistics for the year 1998 following numbers of people have been convicted pursuant to the cited sections of the Austrian Penal Code (see below under section c.1):

Section convictions

153 150

302 62

304 3

305 0

306 0

306a 0

307 3

308 0

While all convictions according to sections 304 and 307 StGB (like possible convictions pursuant sections 305, 306, 306a and 308 StGB) result of a behaviour considered to be corruption, this cannot be said concerning the convictions pursuant to sections 153 and 302 StGB: I estimate that only 5 % of the convictions according to section 153 and 10 - 20 % of convictions according to section 302 StGB concern a behaviour which can be considered to be corruption.

Concerning the dark figure I cannot make any estimation.

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c. Repressive Legislation

c.l. Which types of behaviour can be sanctioned as forms of corruption (bribery, trading in influence, ... )? Active and/or passive corruption? In the public and/or the private sector?

Austrian criminal law provides for punishment of every conceivable form of corruption in a wide sense.

Section 153 of the Austrian Criminal Code (StGB) deals with the offence of breach of trust. It addresses cases where somebody knowingly abuses the authority conferred to him by statute, official order or contract to dispose of property not belonging to him or to oblige the other person and causes damage to an other person in this way. The provision is applicable on misuse of power in the private as well in the public sector.

Section 302 StGB establishes the offence of abuse of public authority. It applies to domestic public officials who knowingly misuse their authority with the intention to cause a damage on the rights of another (natural or legal) person.

Section 304 StGB deals with the offence of passive bribery. It applies to domestic public officials, public officials of another member state of the European Union and officials of the European Communities who require, accept or have themselves promised an advantage to him or a third party for the exercise or the refraining of the exercise of an official act in violation of his duties, if the perpetrator is a domestic public official, also in conformity with his duties. It is only applicable, when the behaviour of the official is not punishable under another provision which provides a more severe punishment like sections 153 and 302 StGB.

Section·305 StGB establishes the offence of passive bribery of senior executives of a public enterprise. It addresses cases where such a person requires, accepts or has himself promised an advantage to him or a third party for the exercise or the refraining of the exercise from a legal act in violation or in accordance of his duties.

Section 306 StGB deals with the offence of passive bribery of expert witnesses. It provides for punishment of expert witnesses who require, accept or have themselves promised an advantage to him or a third party for delivering false findings or a false opinion.

Section 306a StGB establishes the offence of passive bribery of staff members and expert advisers. It applies to staff members of a senior executive of a public enterprise and expert advisers acting for payment exercising influence (on the senior executive or a public official) who require, accept or have themselves promised an advantage to him or a third party with the view to the exercise or the refraining from the exercise of a legal act (by the senior executive) or an official act (of the public official) in violation of his (the senior executive's or the public official's) duties.

Section 307 StGB deals with the offence of active bribery. Paragraph 1 provides for punishment of persons who offer, promise or give an advantage to

1. a public official, a public official of another member state ofthe European Union or an official of the European Communities for the exercise or the refraining from the exercise of an official act in violation of his duties (section 304, paragraph 1),

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2. a senior executive of a public enterprise for the exercise or the refraining of the exercise from a legal act in violation of his duties (section 305, paragraph 1),

3. an expert witness for delivering false findings or a false opinion (section 306), 4. a staff member of a senior executive of a public enterprise for influencing that the

latter exercises or refrains from exercising a legal act in violation of his duties (section 306a, paragraph 1),

5. an expert adviser acting for payment for influencing the exercise or the refraining from the exercise of an official act or a legal act in violation of duties (section 306a, paragraph 2), or

6. with the exception of the case in subject 1 above, a foreign public official for the exercise or the refraining from the exercise of an official act in violation of his duties in order to obtain or retain business or any other improper advantage in the conduct of international business

for him or a third party.

Paragraph 2 provides for punishment of one who offers, promises or give not merely a petty advantage to

1. a public official for the exercise or for refraining from the exercise of an official act in conformity with his duties (section 304, paragraph 2) or .

2. a senior executive of a public enterprise for the exercise or the refraining from the exercise of a legal act in conformity with his duties

for him or a third party, unless the perpetrator - according to the circumstances - cannot be blamed for having offered, promised or given this advantage.

Section 308 establishes the offence or illicit intervention ("trafficking in influence"). It provides for punishment of one (except a person who acts within the competence as attorney against payment) who knowingly, directly or indirectly, exercises influence so that a public official, a senior executive of a public enterprise, a member of a legislative body or a foreign public official exercises or refrains from exercising an official duty or a legal act partially and demands, accepts or has been promised an advantage for him or a third party for exercising this influence.

According to the regulation of section 12 StGB all participants are treated as offenders. So not only the immediate offender commits the offence but also any person who instigates another person to commit it as well as everybody who is an accessory to its commission.

Summarising is to say that active corruption is punishable pursuant to sections 307 and 308 StGB, passive corruption pursuant to sections 153,302,304,305,306 and 306a StGB. The sections 302, 304, 305, 306, 306a, 307 and 308 StGB are applicable only in the official sector, the section 153 StGB in the official as well as in the private sector.

c.2. Are those legal provisions applicable if nationals are corrupted or is their scope of application more extensive (foreigners, members of international organisations, ... )?

The immediate offenders of sections 153, 307 and 308 StGB can be Austrian nationals as well as foreigners, of section 302 StGB only domestic public officials, of section 304 StGB domestic public officials, public officials of another member state of the European Union and public officials of the European Community, of section 305 StGB senior executives of an Austrian public enterprise, of section 306 StGB expert witnesses heard by an Austrian court

4

• or administrative authority and of section 306a StGB staff members of a senior executive of an Austrian public enterprise and expert advisers of an Austrian public official or of a senior executive of an Austrian public enterprise. Austrian nationals as well as foreigners can be instigators or accessories to all offences mentioned.

Section 307 StGB is applicable on the corruption of domestic public officials, public officials of another member state of the European Union, officials of the European Communities, senior executives of an Austrian public enterprise, expert witnesses heard by an Austrian court or administrative authority, staffmembers ofa senior executive of an Austrian public enterprise and expert advisers of an Austrian public official or of a senior executive of an Austrian public enterprise and foreign public officials.

c.3. Which sanctions can be imposed (imprisonment, fine, confiscation measures, deprivation of rights, administrative sanctions, blacklisting, ... )?

The punishment for the offence of breach of trust (section 153 StGB) is imprisonment for up to six month or a fine of up to 360 daily rates; when the damage exceeds ATS 25 000 imprisonment for up to three years, ifthe damage exceeds ATS 500 000 imprisonment from one to ten years. If the offence is committed by a domestic public official by abusing an opportunity resulting from his public function, the maximum penalty according to the relevant provision can be increased by fifty percent.

The punishment for the offence of abuse of public authority (section 302 StGB) is imprisonment from six month to five years, if the offence is committed by exercising an official act with a foreign country or a supranational or international organisation or if the damage exceeds ATS 500000 from one to ten years.

The punishment for the offence of passive bribery (section 304 StGB) is imprisonment up to three years, if the advantage exceeds ATS 25000 up to five years. If the domestic public official acts in conformity with his duties, the punishment is imprisonment up to one year, if the advantage exceeds A TS 25 000 up to three years.

The punishment for the offence of passive bribery of senior executives of a public enterprise (section 305 StGB) is imprisonment up to one year, if the executive acts with violation of his duties up to three years.

The punishment of the offence of passive bribery of expert witnesses (section 306 StGB) is imprisonment up to three years.

The punishment for the offence of passive bribery of staff members and expert advisers (section 306a StGB) is imprisonment up to two years.

The punishment for the offence of active bribery (section 307 StGB) is imprisonment up to two years (paragraph 1), if the offence is committed concerning a domestic public official or a senior executive of an Austrian public enterprise acting in conformity with his duties imprisonment up to six month or a fine up to 360 daily rates (paragraph 2).

The punishment for the offence of illicit intervention (section 308 StGB) is imprisonment up to three years.

5

Whoever has committed an offence and has obtained economic benefit from it or has received economic benefit for committing an offence, is to be condemned to a payment of an amount equivalent to the gained illegal profits (confiscation of profits, section 20 StGB). Pursuant to this regulation given and accepted bribes can be confiscated.

A public official who is condemned to an imprisonment exceeding one year for having intentionally committed an offence is deprived of his public function by law (section 27 StGB).

Business law provides for exclusion from the exercise of a business of a person who has been sentenced to imprisonment exceeding three month or to a fme exceeding 180 daily rates (section 13 of the Business Law 1994).

Law on private companies provides for the dissolution of the company by the administrative authorities, if the managing directors commit a criminal offence in operating the enterprise and misuse of further operation of the enterprise is concerned with regard of the type of the committed offence and the character of the enterprise.

Enterprises have to be excluded from participation in public procurement procedures, if a verdict pronounced against the enterprise or against a natural person employed in the management of the enterprise raises doubts about the reliability of the enterprise or a grave breach of law in exercise of the professional activity of the enterprise has been established (section 58 of the Federal Law on public procurement 1997).

c.4. To whom are this legal provisions applicable (physical persons and/or legal persons)?

Criminal offences (sections 153,302,304,305,306, 306a, 307 and 308 StGB) can only be committed by physical persons. Confiscation of profits (section 20 StGB) can be imposed on physical as well as legal persons. Exclusion of the exercise of a business pursuant section 13 of the Business Law 1994 is applicable primarily to physical persons, but also to legal persons when a physical person who pertains decisive influence on the management of the business is condemned to the mentioned penalty. Law on private companies is applicable only to such legal persons. Section 58 of the Federal Law on public procurement is applicable to enterprises of all kind.

c.S. What is the territorial scope of application of the provisions?

Basically criminal law (sections 20, 153,302,304,305,306, 306a, 307 and 308 StGB) applies only to criminal acts committed within Austria (section 62 StGB). lfthe immediate offender commits the offence abroad, the instigator and the accessories can be punished according to Austrian law, if they acted themselves in Austria. On the other hand participation in a criminal act, which is committed by the immediate offender in Austria, as well as handling stolen goods and money laundering in respect to a criminal act committed in Austria are punishable there (section 64, paragraph 1, subsection 8 StGB).

6

Basically Austrian criminal law also applies to criminal acts committed abroad, if the act is punishable also according to the law of the state where the act was committed, if the perpetrator has been an Austrian national at the time of the criminal act or if he acquired Austrian nationality later on and still is Austrian at the time of the trial, or if the perpetrator has been foreigner at the time of the criminal act, is being caught in Austria and cannot be extradited to a foreign state for other reasons than the nature or characteristics of the criminal act (section 65, paragraph 1 StGB).

Business law 1994 is only applicable to exercise of business in Austria. Law on private companies applies only to Austrian private companies. Federal law on public procurement 1997 is only applicable on procurement of the Austrian federal administration.

c.6. Does the law contain particular provisions relating to the burden of proof in corruption cases (reversal, division, protection of whistle blowers, ••. )?

Austrian law does not contain particular provisions to the burden of proof in corruption cases.

c.7. Do you consider the legislative framework satisfactory? If not, in your opinion what are the main problems?

I think that the Austrian legislative framework for combating corruption is sufficient. The main problem for prosecuting corruption cases is not law, but proof.

d. Preventive Measures

d.1. What kind of preventive measures exist in your country (auditing standards, financial disclosure obligations, codes of conduct, ... )?

There are different preventive measures concerning active and passive corruption.

As to prevent active corruption, merchants are obliged to keep books and record in these books their business transactions and the situation of their property according to the principles of correct accounting (section 189 ofthe Code of Commercial Law). The annual financial statement and the situation report of companies (except small private companies without the obligation to establish a supervisory board) have to be examined by an auditor (section 268 of the Code of Commercial Law). The legal representatives of a company have to provide the auditor with the possibility to examine the books and records of the company and its property and debts; the auditor may ask them for all information and records he considers necessary for a thorough examination (section 272 ofthe Code of Commercial Law). Monetary and other gifts may not be deducted from the incomes, when giving or receiving them constitutes a criminal offence (section 20, paragraph 5 of Income Tax Law 1988, section 12, paragraph 1, subsection 5 of Corporation Tax Law 1988).

As to prevent passive corruption, the laws on public service demand loyalty from public officials and forbid them to require, accept or have themselves promised a gift or another advantage (for example sections 43 and 59 ofthe Federal Law on public service).

7

d.2. Do you consider this legislative framework satisfactory? If not, in your opinion what are the main deficiencies?

In my opinion the legislative framework for prevention of corruption is satisfactory. The non­deductibility of bribes at taxation of incomes seems to be the most important factor for preventing active corruption. Besides a more stringent obligation of the tax authorities to inform the public prosecution of any suspect of corruption seems desirable.

As to passive corruption, in my opinion an unbroken loyalty of public officials is more important than any regulation or code of conduct. The conditions of employment for public

. officials seem also to be of great importance. I think that lifelong term of employment, increase of salary with age and the promise of a good retirement pension were very important factors to prevent corruption broadly from Austrian public officials up to now. Unfortunately these conditions are under discussion now, and public opinion seems to be against granting such "privileges" to public officials.

e. Structures

e.l. Has your country established specialised services specifically assigned with the combat against corruption? If so, what is the institutional context (e.g. established within the police), the composition, the functions and the powers of these services?

Austria has not established specialised services for combating corruption. If there is a connection to business in the individual case, the case is handled by departments of the police and the public prosecution service specialised in economic offences.

e.2 Do you consider this structural framework satisfactory? If not, in your opinion what are the main problems?

I think that the structural framework for combating corruption in Austria is sufficient. The small number of cases does not afford a special service. The means for repressive combat against corruption are often the same like for combating economic crimes; so the handling of most corruption cases by departments for economic offences is suitable.

2. International co-operation regarding corruption

a. Supply

a.l. To what extent can your country offer international co-operation in corruption cases (exchange of police information, mutual assistance in criminal matters, extradition, ... )?

In corruption cases Austria can offer full international co-operation, that means as well exchange of police information as mutual assistance in criminal matters as extradition.

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Requests for police information may be fulfilled under the applicable conditions and prerequisites as laid down in the framework of Interpol, European Police co-operation agreements and bilateral police agreements.

Basically mutual legal assistance and extradition are provided on the basis of multilateral and bilateral treaties.

Austria is a party to the following conventions which deal with legal assistance:

1,/ The European Convention of20 April 1959 on Mutual Assistance in Criminal Matters;

2,/ The Additional Protocol of 17 March 1978 to the European Convention on Mutual Assistance in Criminal Matters;

3./ The United Nations Convention of 19 December 1988 against Illicit Traffic in Narcotic Drugs and Psychotropic Substances;

4,/ The Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition on checks at common borders;

5./ The Council of Europe Convention of8 November 1990 on Laundering, Search, Seizure and Confiscation ofthe Proceeds from Crime;

6./ The Convention of 17 December 1997 on Combating Bribery of Foreign Public Officials in International Business Transactions.

Austria has also concluded bilateral treaties with a number of countries in the field of mutual assistance, including Germany, Italy and France.

In absence of a treaty, mutual assistance may be provided under the Austrian Extradition and Mutual Legal Assistance Act (ARHG) on the basis of reciprocity.

a.2. Who should the applicant apply to (which authority, person in charge at this instant, address, phone and fax number)? On which conditions and in which form?

Requests for police information must be forwarded to the police authority designated in the police agreement applied. In the case of using the Interpol channel, the applicant has to apply to the national central office (NCB) ofInterpol of his country, which will contact the national central office of Interpol in Austria.

Mutual assistance is granted by the courts and not by the prosecution service in Austria. So a request for mutual assistance must be directed to a (the competent) court and not to a prosecution office. It is only advisable to address a request to a prosecution office, if the applicant just wants only information from it.

When multilateral (like the Schengen Convention) or bilateral treaties (like concluded with the Czech Republic and Slovakia) allow it, a request for mutual assistance can be forwarded directly to the competent court. If direct transmission is not permitted, but a multilateral (like the European Convention on Mutual Assistance) or bilateral treaty allows it, the request may be transmitted to the Austrian Federal Ministry of Justice. The address is

Bundesministerium fUr Justiz Abteilung IV 1

9

Neustiftgasse 2 A 1016 Wien bSTERREICH Tel.: ++43-1-521 52-0 Fax: ++43-1-521 52-2500

In relations with States with which Austria does not have specific mutual assistance arrangements, requests for assistance are processed through diplomatic channels.

For granting mutual assistance generally the District Court (Bezirksgericht) is competent, in which area the action shall take place. If a request is made for a coercive measure, such as search, seizure, provisional injunctions for safeguarding confiscation of profits or forfeiture, interceptions of telecommunications and other intrusive measures, the matter must be submitted to the Court of First Instance (Landesgericht).

If an applicant does not know which court is competent, he can ask - as well as other questions about mutual assistance - one of the contact points ofthe European Judicial Network. These contact points are locally based for the areas of the four Courts of Appeal (Oberlandesgerichte); their addresses are:

1.1 for the Court of Appeal of Vienna (States Wien, Niederosterreich and Burgenland);

Richter Dr. Peter SEDA Landesgericht fur Strafsachen Wien Landesgerichtsstrasse 11 A 1082 Wi en bSTERREICH, Tel.: ++43-1-401 27-13 95 Fax: ++43-1-402 59 04

2,/ for the Court of Appeal of Linz (States Oberosterreich and Salzburg):

Richter Dr. Klaus-Peter BITTMANN Landesgericht Linz F adingerstrasse 2 A4020 L i nz bSTERREICH, Tel.: ++43-73 2-76 01-24 33 Fax: ++43-73 2-76 01-24 70

3./ for the Court of Appeal ofGraz (States Steiermark and Karnten):

Richter Dr. Heinz FUHRMANN Landesgericht fur Strafsachen Graz Conrad-von-Hotzendorf-Strasse 41

10

-.. A8010 Graz OSTERREICH Tel.: ++43-31 6-8047-212 Fax: ++43-31 6-8047-348

4.1 for the Court of Appeal ofInnsbruck (States Tirol and Vorarlberg):

Richterin Dr. Gabriele SMITH-LUKASSER Landesgericht Innsbruck Maximilianstrasse 4 A 6020 Inn s b r u c k OSTERREICH Tel.: ++43-51 2-5930-249 Fax: ++43-51 2-58 22 86

There is also a central co-ordinating contact point at the Federal Ministry of Justice, which address is

Staatsanwalt Dr. Stefan BENNER Bundesministerium flir Justiz N eustiftgasse 2 A 1016 Wi en OSTERREICH Tel.: ++43-1-521 52-2502 Fax: ++43-1-521 52-2500

a.3. Which particularities should the applicant be aware of when requesting co­operation from your country?

Mutual assistance:

Reciprocity is a principle of the Austrian System. Law provides that the Austrian judicial authorities may only comply with a mutual assistance request, if the State from which the request has been received could comply with a similar request of Austria (section 3 ARHG). This provision applies only to the extent that any international agreement does not provide otherwise. So it does not apply for granting or receiving assistance within the framework of the European Convention on Mutual Assistance.

Another principle is dual criminality. The Austrian judicial authorities can grant assistance only in proceedings in respect of offences which are also punishable under Austrian law and the punishment of which falls within the jurisdiction of the Austrian judicial authorities (section 51 paragraph 1 subsection 1 ARHG). In bilateral treaties between Austria and other European countries and the United States the requirement of dual criminality has been restricted to cases of coercive measures. Besides pursuant to the Schengen Convention assistance is possible also in the case of certain administrative proceedings (Article 49). In practice the question of whether an offence that had given rise to a request has a corresponding offence under Austrian law is interpreted in a broad sense.

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Austria may only comply with a request for mutual assistance if its public policy or other essential interests are not prejudiced by the execution of the request (section 2 ARHG). In practice such cases are very rare.

A characteristic of the Austrian system for carrying out mutual assistance is that requests are executed under the same conditions that would apply if the measures were to be sought in national criminal proceedings. Therefore mutual assistance shall be made available in accordance with the provisions of criminal procedure that are in operation in the national jurisdiction (section 58 ARHG). So the special requirements for specific investigative acts according to the Austrian Criminal Procedure Code, in particular in relation to seizure and opening ofletters and interceptions of telecommunications, must be fulfilled (section 51, paragraph 1, subsection 3 ARHG). Moreover a court order must be enclosed to a request for search, seizure or interceptions of telecommunications (section 56, paragraph 2 ARHG). In this scope there are no limitations on the type of assistance that may be sought from Austria.

On the other hand law permits a request for the adoption of a specific procedure which deviates from the general rule subject to the requirement that it must be compatible with the principles of Austrian criminal procedure (section 58 ARHG).

In its declaration to the European Mutual Assistance Convention Austria has stated that incoming requests and annexed documents which are not in German, French or English must be accompanied by a translation into one of those languages. In practice, however, the Austrian authorities often accept mutual assistance requests made in another language and carry out the translation work themselves.

With consent of the Austrian Ministry of Justice parties from another country (foreign judges, public prosecutors and other participants in the foreign proceedings as well as their lawyers) may attend to the execution of a request (section 59 ARHG).

Extradition:

An extradition for prosecution is possible for criminal acts committed intentionally, which are subject to imprisonment or other deprivation ofliberty for more than one year according to the law of the requesting state and subject to imprisonment for more than one year according to Austrian law (section 11, paragraph 1 ARHG).

Extradition of Austrian nationals is prohibited (section 12, paragraph 1 ARHG). Austria has, in principle, jurisdiction in cases where extradition is refused on the ground that the person sought is an Austrian citizen (section 65, paragraph 1, subsection I StGB; see above under section 5.c).

a.4. Which (legal and factual) obstacles do, in your opinion, hamper an efficient co­operation in practice (bank secrecy, double incrimination, language, policy priorities, ... )? Which practical remedies can you suggest?

In a number of cases of requests received from a foreign authority other than a court, for example a prosecutor, in relations to searches, seizures or interceptions of telecommunications the requirement of the enclosure of a court order (section 56, paragraph 2

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ARHG) was not met. If the requesting authority is competent to order the measure under the law of the requesting State, the requested Austrian courts now demand an appropriate information to confirm that the requesting authority was competent to carry out the relevant function.

b. Demand

b.l. What are your expectations when you request co-operation from another country in a corruption case?

The Austrian public prosecutors and judges expect that their applications for mutual assistance are complied with fully and quickly.

b.2. To what extent are these expectations met?

Following the reports of public prosecutors applications are complied with often late, casually not in the way like expected and sometimes not at all.

b.3. Which are the main problems and how can these be solved?

Direct contacts to the competent foreign authority or to a contact point seem to be very helpful, but it is often difficult to identify the competent authority in the other State. In important cases the attendance to the execution of the request abroad can also be recommended.

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