Manila Policies on Investigating and Prosecuting
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Transcript of Manila Policies on Investigating and Prosecuting
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Ombudsman Public ecture
Policieson
Investigating and Prosecuting
Corruption Cases
de Speville & Associates November 2013
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BACKGROUND
20th century experience: Enforcement alone inadequate response togrowing problem of corruption
National anticorruption strategyrequires two additional elements
Prevention Public education and support
Recognised in 2005 UNCAC
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ENFORCEMENT
Community values in criminal lawto be upheld
Anticorruption laws to be enforced
Effective investigation andprosecution necessary
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CORRUPTION OFFENCES
Corruption for our purposes: The unauthorised trading of entrusted
authority Comprising:
briberygift offence
illicit enrichment
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MORE CORRUPTION OFFENCES
abuse of authoritytrading in influence
corruption-related crimebribery of judges, arbitrators and
sports officials bribery or treating of voters
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INVESTIGATING POLICY
CONTEXT Investigation depends on information But corrupt deal produces no
complaining victim
Information must come from reluctantthird party Investigating policy has direct effect
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THE POLICY ITSELF
Investigate every allegation ofcorruption capable of
investigation,no matter how unimportant
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WHY? The unimportant often unravels into the
very important
Dismiss the complaint as insignificant and
the complainant will never return
Picking and choosing breeds mistrust
All corruption matters no room for doublestandards
Many small acts of corruption harmfuland one small act can be disastrous
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IN CONSEQUENCE
Investigations are demand led Only reacting to allegations means
no targeting of individuals or sectors Anticorruption body responsive tocommunitys wishes
Reputation for impartiality developedand maintained by no selectivity
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IN CONSEQUENCE
Investigations are demand led Only reacting to allegations means
no targeting of individuals or sectors Anticorruption body responsive tocommunitys wishes
Reputation for impartiality developedand maintained by no selectivity
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CORRUPTION-RELATED CRIME
Investigation often includes othercriminality besides corruption
Corruption aspect often peters out
Operational decision case-by-casewhether to complete investigation ortransfer to police
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CONFIDENTIALITY
Confidentiality of investigation is vital:informants fear of leak will stopinformation sources
Strict internal confidentiality and needto know
Offence for anyone, includingcomplainant, to disclose fact ofinvestigation or any detail of it
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POWERS OF INVESTIGATION
Normal police powers of arrest,detention, search, seizure andsurveillance
Interception of communications Search for and examination of bank
accounts Suspects attendance & questioning Retention of travel documents
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CLOSING INVESTIGATIONS
Most investigations do not end incourt and must be closed (nfa) Vital that public feels investigation
properly done and can properly beclosed Not possible to make public
Solution: advisory committee oftrusted citizens which endorsesclosure
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PROSECUTING POLICY
GENERAL
Both sides of bribery deal equallyliable Same maximum penalty applicable to
both Circumstances of case may justifyvery different sanctions
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MINIMUM SENTENCES
Not a good thing many cases warrant only minor
penalty
reluctance to convict if excessivepenalty must follow
Counterproductive
Better to allow judge to imposesmall penalty in cases that meritnothing more
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ACCOMPLICE EVIDENCE,CORROBORATION AND OTHER
EVIDENTIAL PROVISIONS Accomplice evidence admissible for
prosecution Corroboration not required Evidential presumptions of property
ownership and of corruption Court protection of identity of
informant not called as witness
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PROOF IN ILLICIT ENRICHMENTCASES Prosecution to prove owned wealth in
excess of official salary of official Defendant to show excess lawfully
obtained In some countries prosecution to
prove wealth in excess of lawfulearnings a task that is almostimpossible. Object of offence
negated.
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PROSECUTORS DISCRETION
Successful prosecution often requiresone party to corrupt act to giveevidence against other.
Clear law needed that prosecutor canchoose not to prosecute one if hegives true evidence against other.
Likewise court power to sanctionlesser sentence on one giving trueevidence against other.
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RECOVERING THE PROCEEDS
Court power to forfeit seized propertyon being satisfied it results fromcorrupt act, whether convictionobtained or not
Consider also court power to forfeitseized property on prosecutorsapplication if no justified claim madein 12 months
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CONCLUDING REMARKS
Successful enforcement is essentialelement of national anticorruptionstrategy
Incumbent on policymakers to enactthese necessary substantive,procedural and evidentiary provisions
de Speville & Associates November 2013