RESOURCE M ATERIALSERIES No. 92

UNAFEI
Fuchu, Tokyo, JapanM arch 2014

Tomoko Akane
Director
United Nations
Asia and Far East Institutefor the Prevention of Crime andthe Treatment of Offenders(UNAFEI)
1-26 Harumi-cho, Fuchu, Tokyo 183-0057, Japan
http://www.unafei.or.jp
unafei＠moj.go.jp

CONTENTS
INTRODUCTORY NOTE

ⅵ

PART ONEWORK PRODUCT OF THE 155TH
INTERNATIONAL TRAINING COURSE

EFFECTIVE COLLECTION AND UTILIZATION OF EVIDENCE IN
CRIMINAL CASES
Visiting ExpertsʼPapers
Investigative Interviewing in England Part I :M odels for Interviewing
Witnesses and Suspects
by Mr. Timothy E. Curtis (United Kingdom)

3

Investigative Interviewing in England Part II :Some Tactical andLegal Considerations
by Mr. Timothy E. Curtis (United Kingdom)

19

Plea Bargaining, Cooperation Agreements, and Immunity Orders
by Mr. Robert R. Strang (United States)

30

Comparative Trial Advocacy
by Mr. Robert R. Strang (United States)

38

ParticipantsʼPapers
Investigation of Criminal Offences in Bhutan
by Mr. Kinlay Wangdi (Bhutan)

44

Criminal Procedure in Bhutan
by Mr. Kinlay Wangdi, Sonam Tashi and Tandin Dorji (Bhutan)

52

The Effective Collection and Utilization of Evidence in Criminal Cases:
Current Situation and Challenges in Brazil
by Mr. Andrey Borges de Mendonça (Brazil)

58

The Criminal Justice System in Brazil:A Brief Accountby Mr. Andrey Borges de Mendonça (Brazil)

63

Criminal Justice in Maldivesby Mr. Mahmood Saleem (Maldives)

71

The Criminal Justice System in Maldivesby Mr. Abdulla Shatheeh and Mr. Mahmood Saleem (Maldives)

77

Criminal Procedure in Thailand
by Ms. Bhornthip Sudti-Autasilp and Ms. Unchalee Kongsrisook (Thailand)

87

ⅲ

The Criminal Justice System of Ukraine
by Ms. Svitlana oliynyk (Ukraine)

100

Reports of the Course
Effective Collection and Utilization of Evidence in Criminal Cases
by Group 1

116

Effective Collection and Utilization of Evidence in Criminal Cases
by Group 2

124

PART TWOWORK PRODUCT OF THE 16TH UNAFEI UNCACTRAINING PROGRAMMEEFFECTIVE MEASURES TO PREVENT AND COMBAT CORRUPTION AND
TO ENCOURAGE COOPERATION BETWEEN THE
PUBLIC AND PRIVATE SECTORS
Visiting ExpertsʼPapers
Investigative Measures to Effectively Combat Corruption
by Ms. Rebecca B. L. Li (Hong Kong)

139

Measures to Prevent Corruption and to Encourage Cooperation between All Sectorsof Society
by Ms. Rebecca B. L. Li (Hong Kong)
150
Intelligence Based Investigation and Proactive Investigation :A Way Forward
by Mr. DatoʼAbdul Wahab Bin Abdul Aziz (Malaysia)

161

Enhancing Cooperation among Sectors in Corruption Prevention Strategy:MalaysianExperienceby Mr. DatoʼAbdul Wahab Bin Abdul Aziz (Malaysia)
170
Effective Measures to Combat and Prevent Corruption in the UK and the Current
Situation on Enforcement of the Bribery Act 2010
by Mr. David Green (United Kingdom)
177

ParticipantsʼPapers

ⅳ

Study on the Algerian Anti-Corruption Law
by Mr. Touti Fayçal (Algeria)

203

Criminal Justice Response to Corruption
by Mr. Mohammad Saidur Rahman and Mr. Md Golam Rabbani(Bangladesh)

210

The Brazilian Legal Framework against Corruption
by Mr. Vladimir Aras (Brazil)

223

Criminal Justice System Response to the Problem of Corruption in Kenya
by Mr. Abraham Kipkoech Kemboi (Kenya)

230

Status of the Utilization of the Private Sector in the Fight against Corruption in Kenya
by Mr. David Gathii (Kenya)
236
Individual Presentation Paper
by Mr. Oleg Crismaru (Moldova)

244

Anti‑Corruption Efforts in Myanmar
by Mr. Myo Khaing Swe (Myanmar)

252

Effective M easures to Prevent and Combat Corruption and to Encourage
Cooperation between the Public and Private Sectors
by Mr. Abraham Nikolous Ihalua (Namibia)

261

Corruption and its Impact on Law Enforcement Workby Ms. Oris I. Jaen Fernandez (Panama)

268

Effective M easures to Prevent and Combat Corruption and to Encourage
Cooperation between the Public and Private Sectors
by Mr. Rosito Amaral (Timor-Leste)

274

Reports of the Programme
Effective M easures to Investigate Corruption Cases
by Group 1

278

Effective M easures to Establish Systems to Prevent and Combat Corruption
by Group 2

287

APPENDIX

295ⅴ

INTRODUCTORY NOTE
It is with pride that the United Nations Asia and Far East Institute for the Prevention of Crime andthe Treatment of Offenders (UNAFEI)offers to the international community the Resource M aterial
Series No. 92.
Part One of this volume contains the work product of the 155th International Training Course,
conducted from 18 August to 2 October 2013. The main theme of the 155th Course was Effective
Collection and Utilization of Evidence in Criminal Cases. Part Two contains the work product of the
16th UNAFEI UNCAC Training Programme, conducted from 6 October to 13 November 2013. The
main theme of the 16th UNCAC Programme was Effective Measures to Prevent and Combat Corruption
and to Encourage Cooperation between the Public and Private Sectors.
With regard to the 155th Course,achieving prompt and proper punishment ofoffenders requires thatcriminal investigators discover the facts of the crime during their investigations, and it is equallyimportant to utilize evidence effectively to prove guilt at trial.Historically,acquiring statements fromsuspects,victims and key witnesses has been the primary means of gathering evidence.However,overthe past 50 years,it has become difficult to acquire such statements because of changes in society andgreater commitments to human rights, especially the rights of the accused.
When interviewing or interrogating witnesses or suspects, investigators must carefully obtainaccurate statements. Some countries have introduced special interview or interrogation techniques
based on cognitive psychology, such as the PEACE M odel (interview) in England and the REID
Technique (interrogation) in the United States of America. Additionally, several countries havesystems that facilitate witness testimony, such as offers of immunity and plea bargaining, or thatcompel witnesses to testify through the use of subpoenas. In addition to interrogation,some countries
use special investigation techniques to acquire important statements, such as undercover operations
controlled delivery and electronic surveillance, including wiretapping.
On the other hand,progress in science and technology has brought forensics to the field of criminal
investigation. Recently, new investigation techniques to acquire objective evidence, such as genetic(DNA)testing,computer forensics and video analysis,are being introduced in many countries and are
becoming essential investigation methods.
With regard to the 16th UNCAC Programme,corruption poses a serious threat to the stability andsecurity of societies.The threat is even greater when corrupt practices prevail in the public sphere.The
enormous negative impact of corruption and its increasing transnational aspects led to universal
recognition that this phenomenon had to be addressed collectively at the international level. Consequently, several multilateral instruments against corruption have been adopted since the mid-1990s.
The most important of these instruments, the United Nations Convention against Corruption (hereinafter referred to as “UNCAC”)was adopted by the UN General Assembly on 31 October 2003.
Articles 15 through 25 of UNCAC establish a framework for the criminalization of corrupt acts,
including public-and private-sector bribery,embezzlement,trading in influence,and moneylaundering.
As for any crime, investigators must use a combination of effective interview and interrogation
techniques in addition to the best available electronic and forensic technologies.Moreover,as UNCAC
stipulates in Articles 12,13 and 39,cooperation between the public sector and the private sector is very
important to prevent and combat corruption effectively. Finally, international cooperation is vital tocombating corruption, and countries must share information on the status of corruption within theirrespective borders. Such relevant information includes experiences, current problems, and sophisticated techniques in the investigative, judicial and asset recovery processes.
UNAFEI, as one of the institutes of the United Nations Crime Prevention and Criminal Justice
Programme Network, held these training programmes to offer participants opportunities to shareexperiences,gain knowledge,and examine crime prevention measures in their related fields,as well as
to build a human network of counterparts to further international cooperation, which is vital toaddressing these issues.
1G.A. Res. 4, U.N. GAOR, 58th Sess., Supp. No. 49, at 5, U.N. Doc. A/Res/58/4 (2003).

ⅵ

In this issue, in regard to both the 155th International Training Course and the 16th UNAFEIUNCAC Training Programme,papers contributed by visiting experts,selected individual presentation
papers from among the participants,and the reports of the 155th Course and the 16th UNCAC Training
Programme are published. I regret that not all the papers submitted by the participants of eachprogramme could be published.
I would like to pay tribute to the contributions of the Government of Japan, particularly the
M inistry of Justice, the Japan International Cooperation Agency, and the Asia Crime Prevention
Foundation for providing indispensable and unwavering support to UNAFEIʼ
s international training
programmes. Finally I would like to express my heartfelt gratitude to all who so unselfishly assisted
in the publication of this series.
M arch 2014

Tomoko Akane
Director of UNAFEI

ⅶ

PART ONE
RESOURCE M ATERIAL SERIES
No. 92Work Product of the 155th International Training Course“Effective Collection and Utilization of Evidence in Criminal Cases”

UNAFEIVISITING EXPERTSʼPAPERSINVESTIGATIVE INTERVIEWING IN ENGLAND
PART I:M ODELS FOR INTERVIEWINGWITNESSES AND SUSPECTS
Timothy E. Curtis

This essay will, as its title suggests, outline the models of investigative interviewing that have
evolved into current practice,not just in England,but in many parts of the world.It can be read alone
or in conjunction with Part II of this project which will look at some tactical and legal considerations
applicable to investigative interviewing.

I. INTRODUCTION
There is possibly no such thing as a perfect police interview and the author of this paper has heard
many experienced detectives make that observation. That is not to say that they do not constantly
strive for the best product available;it is more a recognition that, under close scrutiny, somebody
somewhere will be able to pass critical comment on some aspect of their performance as the interviewer. The reality is of course that in an adversarial judicial system such as that which operates inmany countries which derive their legal system from the English there will always be ʻ
the other sideʼ
who will be strongly motivated to highlight flaws in the interview process. If an interview was
conducted to such a poor degree that it could be argued the outcome was not reliable then the interview
could ruled as being inadmissible and its content not considered by the decision makers. In thesecircumstances it will almost always be the victim of the crime who suffers.If the product of a witness
interview is deemed to be unreliable then it is possible that they will have to give their evidence ʻ
liveʼin Court;if a suspectʼs admission is ruled to have been secured unfairly it may never get to the ears of
the Judge or jury.
Criticisms of police interviews have long been the topic of debate in arenas wider than just the
Courts though:many politicians,academics and other interested parties have evaluated and commented on some of the tactics and interview-skills employed during formal and informal reviews of cases.
M uch of this critical analysis has informed changes in practice through the years and it is true to saythat these developments continue to this day.But for many,the basic premise of an interview remains
the same:to find out what happened. Or “
the quest for truth”as it is sometimes defined as.Even thissimple foundation on which an interview is built has, in the past, been said to be the source of the
problem:if the interviewer has already decided what happened (or what ʻ
the truthʼis)then they might
conduct the interview in such a way as to achieve confirmation of their preconceived ideas ― rather
than adopt a more open-minded approach to explore of what might have happened.

II. CURRENT POSITION
There are a number of different interview frameworks that are currently trained to police officers
and other criminal justice system practitioners in the United Kingdom and this paper will,in the main,
deal with two ofthem:the four-phased interview advocated in the publication “Achieving Best Evidence
in Criminal Proceedings”(Ministry of Justice 2011)and the PEACE model. The four-phased model isa framework exclusively for witnesses whilst the PEACE model has an application across both witness
and suspect interviews.
These models developed in parallel to each other and although both started to gather a momentum
within the criminal justice system from the late 1980s they have remained as separate entities throughDirector and Training Consultant,Wessex Training Consultancy Ltd.;former Detective Sergeant,Hampshire Constabulary, United Kingdom.

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RESOURCE MATERIAL SERIES No. 92
out. That said there are obvious similarities between the two which will not be ignored as this essay
gives a generic overview of both models. It will also focus on some more specific techniques that canbe employed through the various phases.

III. THE SEVEN PRINCIPLES OF INVESTIGATIVE INTERVIEWING
As early as 1992 the British Government recognised the need to set out ideologythat would underpin
all investigative interviews. In doing so it published its seven principles (which can be seen in their
original form at appendix A)which remained unaltered until 2009 when they were bought up to date
to reflect changes in some legislation, publications and working practices. These principles ― still in
use today ― are:i.

The aim of investigative interviewing is to obtain accurate and reliable accounts from victims,
witnesses or suspects about matters under investigation

ii. Investigators must act fairly when questioning victims, witnesses and suspects. Vulnerable
people must be treated with particular consideration at all timesiii. Interviewing should be approached with an investigative mindset.Accounts obtained from theperson who is being interviewed should always be tested against what the investigator alreadyknows or what can reasonably be established.
iv. When conducting an interview,investigators are free to ask a wide range of questions in orderto obtain material which may assist an investigationv. Investigators should recognise the positive impact of an early admission in the context of thecriminal justice system
vi. Investigators are not bound to accept the first answer given.Questioning is not unfair merely
because it is persistentvii. Even when the right to silence is exercised by a suspect,investigators have a responsibility to
put questions to them.
It can be seen that whilst many of the principles apply to both witness and suspect interviews someapply exclusively to one discipline or the other. Acknowledging these differences we need to look at
how the models of interviewing vary,how they evolved and the key drivers behind those developments.
Firstly we will look at specific guidance on interviewing vulnerable and intimidated victims andwitnesses.
A. Victim and Witness Interviewing
In 1988 Judge Elizabeth Butler-Sloss published her report of the inquiry into a significant numberof child abuse investigations in the English County of Cleveland. In it she commented that the interviews conducted with the witnesses:“
mostly failed the standards agreed by professionals working in
the area of child sexual abuse”(Shaw 2011).As a result of this inquiry the Right Honourable Douglas
Hurd,the UK Parliamentʼs Home Secretary of the day,established an advisory group to consider theusing of visually recorded interviews of child victims and witnesses as a means of taking their evidence
to Court. In his letter setting out the groupʼs terms of reference he was clear from the outset that:
although it is the context of child abuse that this idea has gained ground it has wider
implications, and an argument ― although probably a less compelling one― could be mounted forthe evidence-in-chief of other vulnerable groups to be given in this way(Pigot 1989).
The group published their recommendations 18 months later in what has become known as the“Pigot Report”(after its chair, His Honour Judge Thomas Pigot) but is more properly titled:“
The
Report of the Advisory Group on Video Evidence”(Home Office 1989). In it they endorsed Professor

4

155TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTSʼPAPERS
John Yuilleʼ
s “Step Wise”approach to interviewing.1 This is one which recognised the need for rapport
to exist between interviewer and interviewee at the start of the interview;the need for the interviewee
to recognise the seriousness of the context of the interview ― and thus the need to be truthful;the needfor the interviewee to be encouraged to speak freely about what they want to say before questioning
begins;and when questioning actually commences it progresses from an open style before,if necessary,
moving to more specific probing.M etaphorically speaking,this modelʼ
s DNA exists in many of todayʼsinterview frameworks used around the world.
In 1992, adopting (and making reference to) many of the Pigot inquiryʼ
s recommendations, theBritish Government Home Office in conjunction with the Department of Health published “TheMemorandum of Good Practice”(Home Office 1992) and what became known as “
The Four Phased
Interview”was born. This formalised the approach to be adopted in interviews with child witness incriminal proceedings and, in doing so, also acknowledged Judge Elizabeth Butler-Slossʼ
s report referred to earlier. The four phases of the interview were:
RapportFree narrative account
Questioning
Closing the Interview
Instantly the influence of Yuilleʼsʻ
step-wiseʼapproach can be seen and his philosophy of minimising
any trauma the child may experience during the interview whilst maximising the amount and qualityof the information forthcoming and,at the same time,maintaining the integrity of the process (Yuille1998 pg 1) was reflected. To achieve these objectives each phase contained significant guidance andwhilst it is not intended to duplicate it all here some of the key points are worthy of reminder.
1. Phase One:Rapport
Everything needed to done overtly and whilst the main aim of this phase was to establish a rapport
with the child and make them feel as relaxed and as comfortable as possible,the fact that the interview
was being visually and audibly recorded needed to be made clear ― as did the rationale for doing so.
The child also needed to understand the reason for the interview. Given that the Pigot inquiry
recommendations were aimed at securing Court-grade evidence the necessary rules of evidence needed
to be considered during this phase and whilst there was no requirement for the child to swear an oathduring the interview it was acknowledged that it would be helpful for the court to be aware of thechildʼ
s need to tell the truth. This was also the phase that the interviewers were encouraged tosupplement their existing knowledge about the childʼs cognitive and social development and, inparticular, their communication skills so that the rest of the interview could be conducted using
age-appropriate language.
2. Phase Two:Free Narrative AccountThis phase,as its name suggests,was where the child was encouraged to speak spontaneously andfreely ― ideally about the matter under investigation. The key point here is that the account was tobe given in a manner that was free of interviewer influence.Interviewers were encouraged to employ
ʻactive listeningʼskills and use open questions as much as possible ensuring all the time that they werecommunicating at a level suitable for the interviewee sat opposite them.
3. Phase Three:Questioning
The purpose of this phase of the interview was to probe further information volunteered in the freenarrative account phase. Whether the interviewer sought greater detail or just clarification of something already said the guidance was the same ― use four specific question types (open-ended,specificbut non-leading, closed, and finally leading)and recognise the hierarchy that exists between them.
1Professor John Yuille is an Experimental Psychologist at the University of British Columbia,Canada and had spent overthirty years researching memory in adults and children.

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RESOURCE MATERIAL SERIES No. 92(1)Open-ended.
The interviewer should, as much as possible, use open-ended questions in the first instance (and,indeed,return to this style at the earliest opportunity when they were departed from).Although it was
obvious that the question phase had been entered it was still possible to secure information with theleast amount of interviewer-influence if ʻ
openʼquestions were employed.
(2)Specific but non-leading.
Specific but non-leading questions allowed the interviewer to secure clarification on particularpoints already made earlier in the process.
(3)Closed
The Memorandum ofGood Practice(MoGP)was clear(Pg:20):“If specific but non-leading questions
are unproductive, questions might be attempted that give the child a limited number of alternative
responses”.This endorsement of the use of closed questions was given with additional guidance.It gives
the example: “Was the manʼs scarf you mentioned blue or yellow, or another colour or canʼt youremember?”(MoGP:Pg 20).Here you can see that the closed question is constructed in such a way as
to allow the child to select an option other than blue or yellow (without such an opportunity thequestion could be construed as leading).It also allowed a response from a child who genuinely did notknow what colour the scarf was.
(4)Leading
The final question type in this hierarchy is ʻ
leadingʼ.Leading questions were advocated only if they
were applied with the utmost care and only then if they were likely to lead on a point which was
unlikely to be a fact in dispute at any subsequent trial.The Memorandum of Good Practice made thedifferentiation clear to new-to-role interviewers insomuch as, when it is generally accepted that aperson X has been killed at a particular time,it would not be not be considered as leading to ask thechild ʻwhat were you doing when X was killed?ʼ
. What is far less likely to be admissible would be aquestion:
which either suggests the required answer, or which is based on an assumption of facts which had
yet to be proved. Thus ʻDaddy hurt you, didnʼ
t he?ʼis an example of the first type of leading
question, and “When did you first tell anyone about what Daddy did?ʼput to child who has not
yet alleged that Daddy did anything is an example of the second type
(MoGP Page 26).
At all times the interviewer was encouraged to revert back to ʻ
open questionsʼif any new information came to light.
4. Phase Four:Closing the Interview
This phase was essential as it was designed to ensure that the child witness did not leave the process
in a distressed state.The child should not feel that they had failed or let the interviewers down and it
was important to ensure that the child left the interview room in a positive frame of mind.It was also
an opportunity to answer any questions that the child might have of the interviewers and for a
discussion to take place about what might happen next.In many respects it can be viewed as a returnto the rapport phase where neutral topics were discussed before ending the process.
The guidance published in the Memorandum of Good Practice proved to be so helpful in achieving
its main objective of securing court-grade interviews of child victims that, following a further Home
Office report (ʻSpeaking Up For Justiceʼ)in 1998 and the Youth Justice and Criminal Evidence Act of
1999, the same model of interviewing was extended for use with certain categories of vulnerable andintimidated adult victims and witnesses.The Memorandum of Good Practice was replaced by“Achieving Best Evidence in Criminal Proceedings”(M inistry of Justice 2001) and four new categories ofvulnerable witness were added to the existing one ofʻchildrenʼ― and thus became eligible for interview
under the four-phased model. They were:i.

6

Witnesses with learning disabilities,

155TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTSʼPAPERS
ii. Physically disabled witnesses,iii. Witnesses with a mental disorder or illness
iv. Witnesses who were suffering from fear and distress (intimidated witnesses).
The four phases of the interview remained more or less the same as they were under the M emorandum of Good Practice and this continued to be the case for nearly six years.In 2007 however,to reflect
the changes in relevant legislation and the adoption of a “Victimʼ
s Charter”, a second edition of“Achieving Best Evidence in Criminal Proceedings”was published.This edition not onlyrecognised thedefinitions ofʻ
significantʼ,ʻreluctantʼand ʻ
hostileʼwitnesses (and gave interview guidance accordingly)
but it also slightly adjusted the question hierarchy of the third ― or question ― phase of the interview.
It now re-labelled the ʻclosedʼquestions of earlier publications as ʻforced-choiceʼquestions and gave
additional guidance as to their use.
2011 saw the third edition of“Achieving Best Evidence in Criminal Proceedings”published ― again
to cater for changes in practice and legislation ― but the model and its phases remained fundamentally
unchanged.A significant addition to this edition however was the inclusion ofextended guidance on theuse of the“Enhanced Cognitive Interview”.Although the cognitive-interview(in 2001)and the enhanced
cognitive-interview (in 2007) were referred to in earlier editions the 2011 version was a much richer
source of information on the various techniques available to interviewers.
Whilst the model to interview victims and witnesses was evolving and enjoying a varietyofre-births
the world of suspect interviewing was no less active and just as 1992 saw the publication of the
M emorandum of Good Practice for the interviewing of witnesses it proved to be a landmark year in
the development of suspect interviewing too.
B. Suspect Interviewing
Police in England and Wales had been audible-tape recording their interviews with suspects since
its trials in 1984 and so by the late 80s a wealth of material (much of which had completed its route
through the full criminal justice system)existed for evaluation and comparison.Some police interviews
with suspects were also visually recorded and in 1992 Professor John Baldwin2 published a report for
the Home Office following his evaluation of 600 such interviews (400 visually recorded and 200 audibly
recorded). His report:“
Videotaping police interviews with suspects ― An evaluationʼis described by
Clarke and M ilne (2001)as probably being the “watershed”moment in the well-documented criticism
of police interview skills (page 1).
Baldwin was able to criticise over a third of the interviews he evaluated, grouping their failings
under four main headings:
I.

The ineptitude of the police officers conducting the interviews resulted in Baldwin identifying
them as being “nervous, ill at ease and lacking in confidence”with some of them being“unfamiliar with the available evidence and had clearly not read the written statements”(M cGurk et al. 1993)

II. The interviewers assumed guilt and therefore expected a confession.This,in turn,influenced
the type of questions posed as well as the manner and tone in which those questions were asked― to the extent that any confession subsequently offered by the suspect was not pursued
sufficiently to sustain the case.
III. A poor interview technique was manifestly demonstrated by,amongst other things,interrupting the suspect and becoming “unnecessarily flustered by the intervention of a third party, suchas a legal representative”. (M cGurk et al. 1993).

2Professor Baldwin was the Director of the Institute of Judicial Administration for over twenty years and is now theEmeritus Professor of Judicial Administration at the Birmingham Law School in England.

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RESOURCE MATERIAL SERIES No. 92
IV. Unfair questioning or unprofessional conduct.Baldwin expressed concern “
in a small numberof cases”where the interviewers employed an “
unduly harrying or aggressive approach”(M cGurk et al. 1993).
Whilst Baldwin acknowledged that the interviews he used in his research were not necessarily arepresentative sample both he,and subsequently the Home Office,were sufficiently concerned to makerecommendations for change.The Police were not averse to change and it needs to be recognised thatin parallel to Baldwinʼ
s research the Association of Chief Police Officers (ACPO)had (in October 1991)
already established a working party on Investigative Interviewing and were actively reviewing theirworking practices.An outcome of all of this work was the adoption,in 1993,of a model of interviewingthat would be applicable to all suspect and witness interviews.It was based on a series of phases andwould become known by the mnemonic P.E.A.C.E., an acronym designed to assist the police inrecognising the different stages.
P.E.A.C.E.
The stages of a PEACE interview are:Plan and prepare;Engage and explain;Account,clarify andchallenge;Closure;and finally Evaluate. PEACE therefore is, in essence, Yuilleʼs step-wise approach
under different headings.Its application to a suspect interview obviously meant that different considerations would exist at each stage ― but officers familiar with the four phased interview (advocated in
the Memorandum of Good Practice)would recognise the parallels.
PEACE

Four phased

Plan and prepare

The M emorandum of Good Practice reflected thisthinking when it was also very clear that: “NoInterview should be conducted without adequate planning”(MoGP pg 9).

Engage and explain

RapportAccount

Free Narrative Accountclarify, challenge
ClosureQuestion phase
ClosureEvaluation

Although,as has already been stated,PEACE can apply to witness as well as suspect interviews wewill focus, in this essay, on its application in a suspect context. We will consider the statutory
obligations on the interviewer later but first we will take a generic look at the various stages of a
PEACE interview.

P eace:Plan and Prepare
It is easy to argue that this is the most important part of the interview ― particularly in a suspectcontext. As somebody once said:“Failing to plan is planning to fail”!Good planning would start toaddress at least three of Professor John Baldwinʼs four categories of failings in the interviews that heassessed (referred to earlier in this essay)and even the fourth,ʻ
the unfair or unprofessional approachʼ,might be further minimised by better preparation.
There are a number of generic points that need to be considered before the interview takes place.
Amongst these are:i.

What can this interviewee contribute to this investigation?

ii. What are my legal considerations /constraints?
iii. What offence (or offences)am I investigating ― and thus what are their ʻpoints-to-proveʼ
?

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155TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTSʼPAPERS
iv. What do I already know about this interviewee and what do I need to find out?
v. Does this interviewee have a third party present ― a legal advisor or an ʻ
appropriate adultʼ?
This is by no means an exhaustive list and each investigation will bring with it different ʻplanning
and preparationʼconsiderations but for this overview of PEACE we will briefly look at the five points
above.
(a) What can this interviewee contribute to this investigation?
From the outset you always have to plan for one of three responses from your interviewee:i.

prepare for a denial,

ii. prepare for an admission andiii. prepare for your suspect to not answer any of your questions.
All three of these responses (even ʻa suspect who does not answer your questions) can take on
various guises but the need to plan for them is the same. Does, for example, the denial take the formof alibi that needs to be confirmed /rebutted or does the suspect claim ʻ
mistaken identityʼ― in whichcase what are my identification options?
In the case of an admission the interview still needs to proceed to a depth that will,as Baldwin put
it, sustain the case. Does the confession identify additional lines-of-enquiry such as those that might
assist in the recovery of outstanding property― or identify additional victims?Does the admission go
further than the original victim reported?A confession still needs to be probed.
A suspect who wishes to not answer the questions put to him can do so in a variety of ways.He canjust choose to respond “no comment”at the end of each question ― thus provoking the interviewer to
ask the next question ― or he can choose to say nothing whatsoever. The important thing in theplanning phase is that the interviewers have planned to deal with the eventuality.
(b) What are my legal considerations /constraints?
The Police and Criminal Evidence Act 1984 is the primary piece of legislation that impacts suspect
interviews. Amongst other things it governs the detention of a suspect when he or she has not been
charged with any offence and stipulates the amount oftime that a person can be so detained ― and who
to apply to if the investigation wants the period of detention to be extended.It also reinforces the factthat a detainee is entitled to free and independent legal advice.
Other things that an interviewer needs to consider at this early stage in the process include things
like:
Is English the first, or most appropriate, language for the interviewee?
The fact that special considerations exist if the detainee is a juvenile or a mentally disorderedor vulnerable adultHas the detainee made any significant statements in the past?
Is there any ʻSpecial Warningsʼmaterial in existence that require additional cautions under
sections 36 or 37 of the Criminal Justice and Public Order Act of 1994?(This is discussed ingreater detail in Part II of this essay.)(c) What offence is being investigated and what are the points-to-prove?
Whilst it seems obvious that the interviewer should know what they are investigating Milne andClarke (2001) in their comprehensive review of police interviews revealed that less than 30% ofinterviewers covered the points-to-prove in a “comprehensive manner”and,more worryingly,just over9

RESOURCE MATERIAL SERIES No. 92
14% of the interviewers did not cover them at all (Pg 38). Just as important as points-to-prove isknowledge of any statutory defences that might exist for the offence under investigation so that they
too can be covered in the interview.
(d) What do I already know about this interviewee and what do I need to find out?
Given that the next stage of the PEACE model is “Engage and explain”there is an expectation thatthe interviewer will, at least try to, ʻengageʼwith the interviewee. To this end it is useful to find out,
so far as is relevant to the investigative process,some background information on the individual.This
becomes particularly relevant if the employment of various interview tactics is being considered.The
planning and preparation stage can be viewed as an opportunity to carry out a form ofʻ
gap analysis.
Once the interviewee identifies what they do not know about their interviewee when theyʻ
engageʼwiththeir interviewee in the next phase of the process.
Another consideration could be whether this person has been interviewed in the past.If so,is there
anything to learn from that contact with the police?
Does this interviewee have a third party present ― a legal advisor or an ʻ
appropriate adultʼ
?When
it is remembered that M cGurk et al.(1993)reported that officers became“
unnecessarily flustered by theintervention of a third party, such as a legal representative”the need to prepare for this eventuality is
obvious. Equally the solicitor and appropriate adult have clearly defined roles and responsibilities in
an interview and the interviewer needs to be prepared to ensure that they are carried out.
pE ace:Engage and explain
There are two distinct components to this phase:ʻ
engagementʼand ʻ
explanationʼ
.Firstly letʼs lookat theʻengageʼelement.Depending upon what particular event is under investigation the interviewer(s)may have to spend a considerable amount of time in the next day or so with the person sat on the otherside of the interview table. It is therefore right to recognise that:
Interviewers and interviewees can be influenced by appearance, manner and speech, regardless ofwhat is said［］therefore you must give thought to how you are going to manage the openingof the interview(Centrex 2004).
This extract comes from the Central Police Training and Development Authorityʼ
s publication“The Practical Guide to Investigative Interviewing”and explains perfectly why first impressions count.
It is logical therefore to attempt to manufacture an environment aimed at meeting the needs of theprocess.There is no great mystique in human engagement and people do it every day.When you meetsomebody you have never met before one of the first things you do is introduce yourself― and find out
their name. And yet this seems to be anathema to some investigative interviewers, particularly in asuspect interview context.“I donʼt want［the suspect］to know my first name”,and “I donʼt want tobe his friend”were just two surprising responses from some police officers of an English Shire police
force when this point was addressed with them.The latter comment clearly misses the rationale for theguidance.It is not about trying to create a friendship but about ʻ
engagingʼwith the interviewee. Whilst
this all seems very logical almost all models of interviewing have had to include this instruction as partof their framework,perhaps demonstrating the ease with which this aspect would be ignored by someinterviewers if not so included.
Other ʻengagementʼconsiderations include the identification of any particular concerns that theinterviewee may have. This can range from a desire for a drink of water through to an impassioned
enquiry surrounding his anticipated release-from-custody time.Either way,the important thing is thatthe interviewee is talking to you.Importantly it gives you the ability to actually manage any concernsthat he might voice but also,a potentially beneficial spin-off might be that this interaction may makeit psychologically harder for him to remain silent when the interview moves into its true investigative
phase.
The second element of this phase of the interview is to explain.This should not be seen as a mutually
exclusive ʻchunkʼof the interview and can easily be woven in with the engagement process but,either

10155TH INTERNATIONAL TRAINING COURSE
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way, there are two main points that will warrant explanation:the reason that the interview is being
conducted and secondly, the manner in which it is going to unfold. It is illogical, just because theinterviewee is under arrest, to assume that they are familiar with the legal system. It is therefore
appropriate to spend time checking their understanding and,if in any doubt,reinforcing the value thatthe interview will add to the investigation as a whole ― and thus the significance that their contribution in the exchange will make.This is also the opportunity to explain what might happen during theinterview.
These might include things such as:i.

The formalities and procedures of a tape (or video)recorded interview ― including:a. The right to free and independent legal advice,b. What will happen to the recording media at the conclusion of the interview.
c.

If the interview is being remotely monitored,the additional procedures that relate to sucha practice.

ii. Although the interview may be being audibly(or visually)recorded notes might still be taken
during the process.
iii. Exhibits might be produced, revealed and discussed.
iv. The interviewee should not make any thing up and fabricate a response just to ʻ
pleaseʼtheinterviewer.
v. The interviewee should give as much detail as possible
vi. The interviewee will be given time to answer questions put to them ― so if there are times ofsilence it may be because the interviewer is giving the suspect thinking-time.
This is by no means an exhaustive list but it illustrates the need, when engaging with the interviewee in the first instance, to assess his or her linguistic abilities and level of understanding so thatwhen the above features are explained it is delivered at a level that the interviewee will understand.
This becomes particularly relevant when ʻ
cautioningʼthe suspect and ensuring that they have an
understanding of its content.
The “
Caution”
The PACE “
Code of Practice for the detention, treatment and questioning of persons by police
officers”defines an interview as: “
the questioning of a person regarding their involvement orsuspected involvement in a criminal offence or offences”. Every police officer is very aware that suchinterviews need to be conducted only once the interviewee has been told that:
You do not have to say anything. But it may harm your defence if you do not mention whenquestioned something which you later rely on in Court. Anything you do say may be given inevidence.
This ʻ
Cautionʼhas sometimes been referred to as a ʻright to silenceʼand,to some degree,comparisons can be made with the “Miranda Rights”enshrined in the laws of the United States of America(which start: “You have the right to remain silent”) but the English caution makes the clear
distinction between what the suspect says (or does not say) ʻ when questionedʼand what he later
intends to ʻ
rely on in courtʼ
.
Research (Jacobson 2008:Pg 9) has shown that even well educated people can have difficulty in
explaining the caution in ʻ
plain Englishʼand so when one considers the added stresses that possibly
exist when under arrest it is even more critical to ensure that the suspect understands it. To this end

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RESOURCE MATERIAL SERIES No. 92
many interviewers now ask three questions of the suspect who they have just cautioned. These are:i.

Do you have to say anything?

ii. If this matter goes to Court and you tell them something that you could have told me during
this interview what might the Court think?
iii. What will happen to the tapes?
It is argued that coherent responses (by the suspect) to these three questions demonstrate anunderstanding of the caution.Whilst the author of this essay acknowledges it to be a step in the right
direction he does not necessarily see it as the final solution.
peA ce:Account, clarify, challenge
The opening question (in this phase)should give the interviewee the opportunity to admit or deny
the offence,provide a reasonable explanation for what happened (and their involvement)or provide an
alibi.Here we will look at examples of four different question constructs and their potential outcomes.
An open question:“
You have been arrested for［offence］. What can you tell me about it?”This gives the suspect anopportunity to respond in any of the four directions mentioned on the previous paragraph.
A closed question“
You have been arrested for［offence］.Did you do it?”This is merely a variation on the above andmight,at best,secure only a “yes”or “no”reply― which obviously then demands a second question
which will need to have been planned accordingly.
Time constrained question
Restricting the time frame inside which you want the suspect to comment can be done in two ways:“Where were you between［time］and［time］?”or,“Where were you at［exact time］?”.Both addressslightly different investigative objectives and should be employed tactically where appropriate. A
third variation:“What were you doing at［location］at［either a specific time or between-times］?”
could be used with a suspect arrested at or near the crime scene.
M icro-summary questions.
If the suspect has already made a relevant comment it is possible to include that fact to act as aprefix to many of the above types of question. An example might be: “The police and ambulanceservice were called to your house and found your partner had been stabbed in the chest. When they
asked you what had happened, you said that you stabbed him/her. Tell me how you came to stab him/her?”Similarly: “When you were arrested this morning you said youʼ
d been defending yourself when
you hit Brian. Tell me what happened?”
Whilst all of the questions focus immediately on the matter under investigation they approach thesubject in subtly different ways and a good interviewer will have used the engage and explain phase toassess which wording is most likely to provoke the most desirable response from the interviewee.
Again psychology makes a significant contribution here. Look at the difference between these twoquestions, which both ask the same thing:“
You have been arrested for sexually abusing your daughter. Tell me what happened?”and“You have been arrested because we are enquiring into an allegation by your daughter that you had
sex with her. We want to understand what has happened, so tell us what you know about this?”
Knowing your interviewee and therefore being able to assess which wording (and which questiontype)is likely to achieve your objective is the key.Securing the fullest,most detailed account that theinterviewee can (or is willing to)give is the primary aim of this phase of a PEACE interview and it istherefore hoped that the planning, preparation,engagement and explanation will all pay dividends at

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155TH INTERNATIONAL TRAINING COURSE
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this point.
Once an account is forthcoming the interviewers task is to identify specific topics within that
account that they want to clarify further.Once these topics have been identified they should probe each
one separately before moving to the next. Once the suspectʼs topics have been exhausted the interviewers can start to introduce their own topics.These could be,for example,apparent points ofconflict―where a witnessʼ
s account and the suspectʼs account appear at odds. Similarly it could be that theinterviewers want to introduce new material to the suspect ― such as scientific findings.
The Centrex publication of 2004,the “Practical Guide to Investigative Interviewing”(pages 95 and101)has a diagrammatic representation of a PEACE interview and the below is a development of that
illustration showing just the Account phase:In some law-enforcement settings the “Interviewer Areas”are occasionally referred to as “Firststage challenge”(although such terminology does not exist in the purist PEACE model)in recognitionof the fact that this is where the relationship between the interviewer and the suspect can start tochange and even deteriorate if not properly managed.A PEACE traditionalist would refer to this stageof the interview as ʻ
moving from account to clarificationʼ
. Either way the continued use of open,
non-confrontational questions at this point is advocated.The difference in style between the following
two questions is obvious ― even though both use open questions ― but it is important, at this stage,that something akin to the latter is adopted.

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In your account you said you left home at 10.00pm whereas I have a witness who says they saw
you in town at 9 .30pm. Tell me again what time you left homeandIn your account you said that you left home at 10.00pm. I need to tell you now that a witness
has come forward who says they saw you in town at 9 .30pm. Can you see the problem we havehere? This is why Iʼm interviewing you［about this offence］― so that we can resolve thisdiscrepancy. So, take your time to ensure we both fully understand what you are saying here andwhen you are ready, tell me when you left home?
In the second example the “we”in the ʻ
problem that we haveʼand ʻ
we can resolve thisdiscrepancyʼrefers to the interviewer and the interviewee.This point can be reinforced by appropriate
body language to ensure that the interviewee does not think that it is a problem that ʻ
weʼ― the law
enforcement agency― have.Was he to think that there is obviously nothing that he can do to address
the issue.This is why it is important that he sees himself as part of the solution ― not just the problem.
Empirical evidence shows that this approach is more likely to maintain the engagement with theinterviewee, which is the objective of the tactic.
This is the phase that all the new evidence (that the investigators intend to use in the interview)isrevealed to the interviewee. Some interviewers want to hold back what they consider to be theirstrongest, most damming piece of evidence, their coup de gras, for a final challenge point ― but thisapproach is flawed.How do they know it is their strongest point if they have not given the suspect theopportunity to comment on it?He might have a perfectly logical explanation for his fingerprints being
on the knife.Until he is asked the interviewers can only guess his response.It is not onlyunprofessional
for them to assume that they know the answer but it also reinforces Baldwinʼs point (as reported in
M cGurk et al 1993) referred to earlier in this essay that the interviewers assumptions unhelpfully
influenced the manner in which they delivered their questions. Only once all the material that theinvestigators intend to use in the interview has been discussed ― and the suspectʼs responses considered― can a decision be made as to what points are the ʻstrongestʼ. Without doubt the assessment of aparticular evidential aspectʼs strength and weakness is very subjective and additional planning isessential. There are a number of different tactics available to interviewers when delivering theirʻchallengeʼand whilst there is no single universal solution to the approach that should be adopted wewill look at one approach in detail this paper:the principle of prioritisation.
The premise is simple:take a number of evidential points that remain in conflict with the suspectʼs
account and assess the value they add to the investigation.Now prioritise them ―weakest to strongest― and prepare a closed question around each point-of-evidence to be put to the suspect. The actual
delivery tactics of the questions will depend upon many factors unique to each investigation but thefollowing is a guide. Start the interview with a brief but formal re-assessment of the suspectʼsunderstanding of the ʻ
Cautionʼ. Deliver the questions (as planned in advance) and acknowledge thesuspectʼ
s responses.Because the question type has moved from ʻ
openʼto a more closed construction theinterviewer is not expecting lengthy replies.The interviewer needs to be ready for potential frustrationfrom the suspect as he (the suspect)will almost certainly be repeating responses he has given earlier.
Whilst the interview concludes on what the interviewers consider to be the strongest point-of-challenge
they should not overtly label it as such.It should be delivered,in question form,in the same measured
and professional manner as the others have been.
The rationale for the use ofthis tactic is two-fold.Overtlythe interviewers are ensuring that all they
have put all of the key points of evidence (that they intend to use in interview)to the suspect and are
giving him chance to reiterate his previously delivered explanations. Perhaps more psychologicallythere is an acknowledgement that by prioritising the points-of-challenge there is an opportunity for thesuspect to see the true weight of evidence being considered against him. Delivering these points in aclosed manner also allows the suspect to see this evidence with absolute clarity.
The tactic is not designed to elicit a false confession and it should not be employed in such a way
as to exert an unfair pressure on the interviewee but a suspect who has lied during the earlierinterviews ― because they have not recognised the evidence that exist against them ― might choose
to reconsider their earlier responses in the light of this clarity.Equally an offender who has chosen to14

155TH INTERNATIONAL TRAINING COURSE
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remain silent until this point may decide to respond during this phase.M uch as is the case at the very
beginning of an interview, the interviewer should be ready at this stage to receive an admission ―either full or partial ― or a continued denial.
A third effect of this tactic is that should this matter go before a court, the jury have, in thisinterview,a summary of some of the key prosecution points alongside the defendantʼ
s responses,all ina ten to twelve minute interview tape (or six page interview-transcript).Somewhat theatrically it has
been said in the past that if the interview tapes are played (in court)in chronological order then the lastthing the jury will hear before entering their retiring room to ʻ
decide the fate of the accusedʼis thisresume.
ʻ
Reliableʼand ʻ
Fairʼ:Sections 76 and 78 of the Police and Criminal Evidence Act 1984
There is a similarity between seeking clarification and challenging something insofar as they bothseek an explanation.What makes them different is often just the style with which they are employed.
In an investigative interview both need to be conducted in an appropriate and professional manner.
Sections 76 and 78 of the Police and Criminal Evidence Act 1984,whilst important throughout the entire
investigative process, are particularly relevant here as they deal with the admissibility of evidence ingeneral and confessions in particular.
Section 78 states:
In any proceedings the court may refuse to allow evidence on which the prosecution proposes torely to be given if it appears to the court that, having regard to all the circumstances, including
the circumstances in which the evidence was obtained, the admission of the evidence would havesuch an adverse effect on the fairness of the proceedings that the court ought not to admit it.
Simplistically this gives the court the option to exclude evidence (which would normally be
admissible)if it considers that it was unfairly obtained.This has in the past included evidence obtainedin such that breaches the European Convention on Human Rights and/or the Police and Criminal
Evidence Act Codes of Practice. In the context of a suspect interview is easy to see that if the Court
considered tactics employed during that interview to have been unfair then it has the right to exclude
it.
Section 76 is even more relevant to interviewers as it relates directlyto anyadmission that a suspect
may make. It allows a court to exclude that confession if it agrees that it:
was or may have been obtained ―(a) by oppression of the person who made it; or(b) in consequence of anything said or done which was likely, in the circumstances existing at thetime, to render unreliable any confession which might be made by him in consequence thereof,
M uch like section 78 above the European Convention on Human Rights is the agreed point ofreference here thus “Oppression”, in this context, would include “torture, inhuman or degrading
treatment, and the use or threat of violence”. Oppression (as a term)was also specifically consideredby the Court of Appeal in the case of Regina versus Fulling (1987) where it was held to be given its
ordinary dictionary meaning and: “was likely to involve some impropriety on the part of theinterrogator”(CPS 2013).In the case of M iller,Paris & Abullahi (1993)the interview was held to havebeen oppressive even though the solicitor was present throughout.
Although there is a lot for the interviewers to consider during the planning and execution of theclarification and challenge phases of any interview the Central Police Training and Development
Authority was very clear in its 2004 guidance (which still holds today):
The account needs to be challenged when you have good reason to suspect that an interviewee isdeliberately withholding relevant information or knowingly giving a false account(Centrex 2004).

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If, during a challenge, the suspect was to suddenly make an admission the interviewer should beready to return to an open-style of questioning ― and seek this newʻaccountʼ
; PEACE should therefore
not be seen as a restrictively linear, one-way approach, much more a flexible framework in which tointerview.
peaC e:Closure
In a suspect interview there are some obligations placed on the interviewer,not least by Code E of
the Police and Criminal Evidence Act Codes of Practice. Amongst these requirements is the need togive the suspect the opportunity to clarify or add anything he has already said,the time the interview
is being concluded and the suspect should be handed a notice which explains what happens to theinterview tapes. It remains obvious that these matters should still be carried out in a professionalmanner, not least because there there may be a requirement for further interviews. It is also right to
let the suspect know what will happen next.
Interviewers can sometime treat this stage of the interview as merely a procedural formality when,
in fact, it should be considered tactically. As just one example, it could be used as an opportunity toreveal what will be covered in the next interview. In doing so the legal advisor could be briefedaccordingly and any other ʻdisclosureʼmaterial handed over to the suspect. The Police and Criminal
Evidence Act demands that the police deal with a detainee “expeditiously”:by revealing at the end of
one interview what will be covered in the next ― in order to give the suspect thinking time can surely
be argued to meet that obligation.
peacE :Evaluation
Although this phase is conducted after the interview is concluded it is still a fundamental part of theprocess. Logic demands that there was an aim, an intended objective for conducting the recently
concluded interview. That same logic demands that the interviewer assess whether that aim andobjective was achieved. If it wasnʼ
t then the investigation could be severly let down unless thisevaluation is conducted and a new approach to address the investigative objective is considered.
There are three things that should always be evaluated at the end of the interview: what new
information (if any)was forthcoming, the suspect and finally the interviewer.
i.

The new information that came out of the interview
a. What new information do you now have?
b. Does it corroborate existing information?
c.

Does it generate new lines-of-enquiry?

d. Does it elevate existing lines-of-enquiry to a higher priority?
ii. The interviewee
a. What was his demeanour?
b. Has his health or well-being deteriorated/improved?
c.

Has he changed his approach (from ʻ
no-commentʼto now answering questions ― orvice-versa)?

iii. The interviewerʼs performancea. Was there still a professional rapport existing?
b. Should we change interviewer for the next interview?

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Has that interview identified any professional development / training issues for theinterviewer?

d. What does the interviewer need to do differently next time to achieve the investigative
objectives?
It is clear that a well conducted evaluation will inform the ʻplanning and preparationʼphase of any
subsequent interview with the suspect and therefore is an essential ingredient in the process.
In conclusion the PEACE framework can be applied to victim and witness interviews just as it canbe to suspects.Whilst some of the considerations discussed above might not be relevant with witnesses,
many will.Equally additional factors may exist with victims ofcrime that are not relevant to suspected
offenders.It is hoped that by comparing the opening section of this report,which focussed on witness
interviewing,with the latter section,dedicated to PEACE (in a suspect context)a broad understanding
has been secured of the current system of investigative interviewing in England.
References
Baldwin, J. (1992)Video taping police interviews with suspects ― an evaluation. Home Office :London
Police Research Series Paper 1.
Central Police Training and Development Authority(2004)The Practical Guide to Investigative Interviewing. London:Centrex.
Clarke, C. & Milne, R. (2001) National Evaluation of the PEACE Investigative Interviewing Course.
Portsmouth :Institute of Criminal Justice Studies.
Home Office (1998)Speaking Up for Justice. London:HMSO.
Home Office (1992) Memorandum of Good Practice. London:HM SO.
Home Office (1992) Home Office Circular 22/19 9 2 Principles of Investigative Interviewing. London:HMSO.
M cGurk, B.J & others (1993) Investigative Interviewing Courses For Police Officers: An Evaluation.
London:Home Office Police Research Group.
M inistry of Justice (2001)Achieving Best Evidence in Criminal Proceedings. London:HMSO.
M inistry of Justice (2007)Achieving Best Evidence in Criminal Proceedings. London:HM SO.
M inistry of Justice (2011)Achieving Best Evidence in Criminal Proceedings. London:HMSO.
Pigot, T. And others (1989)The Report of the Advisory Group on Video Evidence. London:HMSO.
Shaw R. (2011)The Cleveland Report by Judge Elizabeth Butler-Sloss［online］available from:http://www.childrenwebmag.com/articles/key-child-care-texts/the-cleveland-reportby-judgeelizabeth-butler-sloss> Accessed 24/07 13.
Yuille, J. C and others (1993). Interviewing children in sexual abuse cases. In G. S. Goodman & B. L.
Bottoms (Eds.), Child victims. child witnesses (pp. 95-1 15). New York:Guilford Press.
Yuille, J.C (1998) The Step-Wise Interview:A Protocol for Interviewing Children［online］available
from: http://redengine.lawsociety.sk.ca/inmagicgenie/documentfolder/ac2062.pdf> accessed(28/06/13).

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APPENDIX AThe Original Seven Principles of Investigative Interviewing
1.

The role of investigative interviewing is to obtain accurate and reliable information from suspects,
witnesses or victims in order to discover the truth about matters under investigation.

2.

Investigative interviewing should be approached with an open mind.Information obtained from theperson who is being interviewed should always be tested against what the interviewing officer
already knows or what can reasonably be established.

3.

When questioning anyone a police officer must act fairly in the circumstances of each individual
case.

4.

The police interviewer is not bound to accept the first answer given. Questioning is not unfair
merely because it is persistent.

5.

Even when the right of silence is exercised the police still have a right to put questions.

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INVESTIGATIVE INTERVIEWING IN ENGLAND
PART II:SOM E TACTICAL AND LEGAL CONSIDERATIONSTimothy E. Curtis

This paper has been written so that it can be read as a stand-alone document in its own right but
its primary purpose is to complement “Part I “Models for Interviewing Witnesses and Suspects”and it
is recommended that it is read in conjunction with that essay.

I. INTRODUCTION
The Greek philosopher Aristotle spoke of Ethos, Pathos and Logos as “ingredients of persuasion”
or tools to encourage another to take a particular point of view.Whilst investigations should never be
conducted in such a way as to distort the truth (so as to fit an investigatorʼ
s preconceived ideas)it ispossible to draw parallels between Aristotleʼ
s teachings and modern-day models of investigativeinterviewing.In the sister-paper to this essay(“Part I: Models for Interviewing Witnesses and Suspects”)
we saw how the four-phased interview for vulnerable and intimidated victims and witnesses (asadvocated in the M inistry of Justice publication “Achieving Best Evidence in Criminal Proceedings”)
was comparable with the PEACE model of interviewing (employable in both suspect and victim/
witness contexts). In this paper we will look at various strategies and tactics that can be employedduring interviews as well as some additional factors that influence practice and procedures. In doing
so we may see at least two of Aristotleʼsʻ
ingredientsʼat work ― if not all three.
Without looking too hard it is possible to see aspects of ʻ
Ethosʼ― the attempt to establish theinterviewerʼs authority ― present in the “Engage”phase of a PEACE model interview and quitepossibly again in the“Challenge”element;ʻ
Pathosʼ― the art ofappealing to the intervieweeʼ
s emotions― without doubt features in the “Clarification / first-phase-challenge”steps; and ʻ
Logosʼ― thepresentation of an argument in logical terms ― in the “Final-challenge”delivery, across a PEACE
interview.This sort of psychology has long been recognised as playing a role in police interviews andmany eminent professionals in that science have informed the research into techniques that the police
now use. But where psychology (and/or acts of persuasion) meets the Criminal Justice system aboundary exists which cannot be crossed:everything that is done must fall the right side of the law.
Article 3 of the European Convention on Human Rights (protection from torture, inhuman anddegrading treatment or punishment) and Article 6 (the right to a fair trial) are both significant
indicators of where that boundary is drawn (and both of those clauses are also reflected in the moreglobal Universal Declaration of Human Rights in its Articles 5 and 10 respectively).Interviewers needto recognise this when considering their tactics.
The Association of Chief Police Officers recognised these challenges when,in 2005,it published its
guidance on this matter. It stated that for an official body such as the police to stay within thestandards set by Humans Rights legislation it needed to be able to show that its activities met thatbenchmark. To that end they created a mnemonic that became the mantra for investigative decision
making.The acronym they used was (coincidentally given that this paper is being delivered in Tokyo)“JAPAN”!
J ustification (legality) ― that there were reasonable grounds to suspect some knowledge or
involvement relevant to the criminal offending or disturbance of the peace;

Director and Training Consultant,Wessex Training Consultancy Ltd.;former Detective Sergeant,Hampshire Constabulary, United Kingdom.

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A uthorisation ― that the proper procedures have been followed,recorded and all actions wereauthorised;
P roportionality ― that the nature of the interference is proportional to the matter being
investigated in its seriousness;
A ccountability ― all the options considered and all the relevant factors must be recorded;
N ecessity ― that the methods used are necessary for the purpose of the enquiry.
(ACPO 2005 pg 34)
An interview, be it with a suspect or a witness, has to be ʻ
investigativeʼotherwise it is unlikely toachieve its objective ― indeed interviewers are actively encouraged to employ an “investigativemindset”in the Seven Principles of Investigative Interviewing. So there is little dispute that aninterviewer is not merely somebody who asks questions,they are an investigator.Thus,if they apply
the five-point ʻJAPANʼguidance to their decision making they will be in a stronger position to defend
their strategy in court.
The National Police Improvement Agency makes an additional point on the topic of decision
making:In order to be effective the investigator must develop the ability to make reliable and accountable
decisions. This may often be under pressure or difficult circumstances(NPIA 2013)
In an investigative-interviewer context that pressure can be because they are making tacticaldecisions dynamically, in the heat of the interview. They may have planned and prepared for theexchange diligently but something happens in front of them that causes them to change direction anduse a different strategy altogether. If, as they should have done, their original plan was recorded(“Writing an interview plan in all cases will ensure that the most appropriate elements of PEACE arebeing used”― Clarke and Milne 2001)the interviewers will need to justify their departure from that
plan.That justification will itself need to be recorded ― albeit,in these circumstances almost certainly
retrospectively. This point is reflected in the performance criteria of an interviewer (as set out in theagreed National Occupational Standards)“Ensure all decisions, actions, options and rationale are fully
documented in accordance with current policy and legislation”(Skills for Justice 2008). Applying the“Justified,Authorised,Proportionate,Accountable,Necessary”rationale to the recording process has
been found to be a useful template.

II. ADVERSE INFERENCES
Before we look at specific tactics that can be considered in investigative interviews it is right tolook at another legislative issue that must be considered during interviews with some suspects.This issections 35 to 37 of the Criminal Justice and Public order Act 1994 which allows potentially adverse(onthe part of the suspect) inferences to be drawn by the court. Section 35 deals specifically with aninference being made if the accused remains silent during the trial. There are caveats that apply but,given that section 35 can only apply after the interview has taken place it has less relevance to thisessay than sections 36 and 37; so we will concentrate on them. As we do so we will also remindourselves of the wording of the ʻ
cautionʼthat applies to all interviews of people for whom there are
grounds to suspect them of having committed an offence:“
You do not have to say anything. But it may harm your defence if you do not mention now
something which you later rely on in court. Anything you do say may be given in evidence.”
Here,it is clear that there is no obligation on the suspect to answer any questions ― so long as heor she understands the implications of such a refusal at a later date.Section 36 though shifts the onus
of commenting back to the suspect. It states:

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Where―(a)a person is arrested by a constable, and there is―(i) on his person; or(ii) in or on his clothing or footwear; or(iii) otherwise in his possession; or(iv) in any place in which he is at the time of his arrest,
any object, substance or mark, or there is any mark on any such object; and(b)that or another constable investigating the case reasonably believes that the presence of the object,substance or mark may be attributable to the participation of the person arrested in the commissionof an offence specified by the constable; and(c) the constable informs the person arrested that he so believes, and requests him to account for thepresence of the object, substance or mark; and(d)the person fails or refuses to do so,then if, in any proceedings against the person for the offence so specified, evidence of those matters
is given［］the court or jury, in determining whether the accused is guilty of the offence charged,
may draw such inferences from the failure or refusal as appear proper.
Section 37 has a similar impact:
Where―(a)a person arrested by a constable was found by him at a place at or about the time the offence forwhich he was arrested is alleged to have been committed; and(b)that or another constable investigating the offence reasonably believes that the presence of theperson at that place and at that time may be attributable to his participation in the commission of theoffence; and(c) the constable informs the person that he so believes, and requests him to account for that presence;
and(d)the person fails or refuses to do so,then if, in any proceedings against the person for the offence, evidence of those matters is given,［］the court or jury, in determining whether the accused is guilty of the offence charged, may
draw such inferences from the failure or refusal as appear proper.
In both Sections there are areas that have been,and will continue to be,areas for debate:in section
36,what constitutes “otherwise than in his possession”?;and in section 37,how flexible can “
at orabout the time
”be?These have been ultimately matters for the Court to decide but the responsibility lies firmly with an interviewer to ensure that, at the time of questioning, the suspect understands
what is being asked of them. In circumstances where Sections 36 or 37 apply the original caution
advising them that they ʻ
do not have to say anythingʼis no longer relevant and the suspectneeds to understand that the obligation on them has changed.To achieve this understanding they are
given, what is referred to in relevant guidance as, a “Special Warning”. Significantly, whilst theoriginal caution is published and agreed (Police and Criminal Evidence Act 1984 Codes of Practice:
Code C Paragraph 10.5) a ʻ
Special Warningʼisnʼ
t: “Legislation does not provide a specific form of
wording”(Centrex 2006 Pg 11)for it.The reference point then has to be the Police and Criminal
Evidence Act Codes of Practice (Code C, Paragraph 10.11)which states:
For an inference to be drawn when a suspect refuses to answer a question about one of thesematters, or to answer it satisfactorily, the suspect must first be told in ordinary language:a) what offence is being investigated;b) what fact they are being asked to account for;c) this fact may be due to them taking part in the commission of the offence;d) a court may draw proper inference if the fail or refuse to account for this fact;e) a record is being made of the interview and it may be given in evidence if they arebrought to trial.

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It is therefore the interviewerʼs responsibility to construct a ʻ
warningʼthat embraces the five factors
listed above in a form that they can justify was appropriate for their intervieweeʼ
s level of understanding.Clearly the application of this “Special Warning”has the potential to confuse the interviewee ifnot
explained well by the interviewee. Occasionally interviewers find themselves saying things like:“Iʼmnow taking the Special Warning off”when no longer asking questions to which Sections 36 or 37 apply.
It is perhaps not surprising when some practitioners prefer to introduce ʻSpecial Warning materialʼ
only towards the end of the interview (approaching the challenge phase)in case they render the rest of
it as inadmissible due to the interviewee being confused.

III. THE FIVE TIERS OF INVESTIGATIVE INTERVIEWING
There is, without doubt, a need to exercise vigilance when interviewing around evidence to which
sections 36 and 37 of the Criminal Justice and Public order Act 1994 applies but professional interviewers should not be apprehensive and probably should not let it influence their interview plan to that
degree. The more serious the case, the more scrutiny on things like the use of “Special Warnings”islikely to be and in recognition of that probability, the Police in England and Wales have adopted atiered system of interview skills so that, for more serious investigations a higher level of skilledinterviewer can be called upon.
For many years there were five tiers of investigative interviewer:
Tier 1 ― an entry-level introduction for basic recruits;
Tier 2 ― for more experienced officers dealing with more serious offences;
Tier 3 ― identified ʻSpecialist interviewersʼutilising additional techniques in the most serious
crimes;Tier 4 ― for managers and supervisors of interviewers;andTier 5 ― Interview Mangers/Coordinators.
This structure not only gave Senior Investigating Officers in serious crime investigations clarity
over what sort of resources they should be deploying across their interviews but it also gave Workforce
Development departments a focus for any future Training Needs Analysis.
A commonly adopted application of the Tiers was that all uniformed patrol officers would betrained to Tier One, all detectives to Tier Two, all supervisors to Tier Four and then a core nucleus
of staff, from specific policing disciplines, would be trained to Tiers Three and Five as necessary. It
is important to recognise that the Tier Three specialism existed in both the witness and the suspectarenas and so departments such as Major Crime Investigation Teams would have some Tier Three(suspect)specialist interviewers as well as some Tier Three (victim/witness)specialist interviewers.
This Tiered structure existed until the publication of the National Investigative Interviewing
Strategy (National Police Improvement Agency 2009) when it was incorporated within the Professionalising the Investigation Programme (PIP)and aligned with the National Occupational Standardsof the Police. In essence nothing changed: Tier 1 became PIP level 1 ʻVolume and Priority Crimeʼinterviewers and Tier 2 became PIP level 2 ʻ
Serious and Complex crimeʼinterviewers. Tier 3, whilst
still PIP level 2 investigators would be formally identified as having the additional competencies of aʻSpecialist suspectʼor aʻSpecialist victim and witnessʼinterviewer.Tier 4 was absorbed into the generalsupervisory responsibilities and the Tier 5 Interview Mangers/Coordinators continued to exist in theirown right.
M any Police Forces employ a progression strategy demanding that to become an Interview
M anager/Coordinator you have to have been a ʻSpecialistʼinterviewer (in either the suspect or witness
field). The logic of this straight forward: they can advise on a technique or tactic that they arethemselves familiar with and have practiced.

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IV. TACTICS
Having a range of tactics available to an interviewer is important as every interviewee will bedifferent and so a one-size-fits-all approach will almost certainly fail. Add to this fact that many
repeat-offenders are interviewed time and time again by police officers and the need to be flexible in
the execution of the interview takes on a heightened relevance. Something as common as receiving nosatisfactory response to an interview question can be an area where different approaches can,and inmany case should, be considered.
A. “No comment”
When a suspect exercises his right not to say anything meaningful in reply to the questions put tothem he should, in the first instance be reminded of the implications of the ʻ
cautionʼthat he is being
interviewed under. He should be reminded that that if he intends to rely on an account at Court,that
Court might be less inclined to believe him than had he offered that explanation during the interview.
Whilst that is something for the suspect to consider the interviewers also have a responsibility here:if
they do not ask the question during the interview then no proper inference (following the suspectʼsrefusal to answer)can be expected to be drawn by the Judge or jury. Basically, if the question is not
asked ― it cannot be a failure to answer it.Empirical evidence disappointingly exists of officers who
have failed to plan for such a potential and they end up saying to the suspect (who has responded “Nocomment”to their opening fifteen questions):“Are you going to keep saying ʼno commentʼto all of ourquestions?”When the suspect replied that he was never going to answer any of their questions so theymight as well charge him if they had the evidence ― the interviewers terminated the interview at thatpoint. This episode concluded with a supervisor intervening and, following appropriate planning, theinterview was resumed later in the day.But this demonstrates that “no comment”is a difficult response
to constantly put questions to unless you are ready to do so. Poorly prepared interviewers cansometimes find them falling into a metronomic response where the interview goes something like this:Question:“Where were you last night?”
Reply:“No comment”
Question:“Did you go to the nightclub?”
Reply:“No comment”
Question:“Did you go into the nightclub?”
Reply:“No comment”
Question:“Did you see the barman in the nightclub?”
Reply:“No comment”
Question:“Did you threaten the barman?”
Reply:“No comment”
Question:“Did you punch the barman?”
Reply:“No comment”
Etc, etc etc.
The ʻ
metronome effectʼis where as soon as the interviewer has finished the question the suspect
responds “no comment”
and as soon as the suspect has finished the word “comment”the interviewer is straight back in there with the next question. No pause. Nothing. Just the start of the nextquestion. To which the suspect replies “no comment”and the interviewer, in anticipation that that23

RESOURCE MATERIAL SERIES No. 92
would be the response,comes straight in with the next question.It becomes metronomic when question
is followed by answer is followed by question is followed by answer is followed by question is followedby
The reality is neither party is thinking about what is going on. Almost certainly the suspect
is not listening to the questions ― he is just waiting for the interviewer to stop talking to give hisʻreplyʼ
.In these circumstances however it is crucial that the interviewer gives the suspect time to digest
what the question was and to show that he was given time to consider his response.
Another tactic in a similar vein employed by suspects is where they respond with the words “nocomment”but do not give the interviewer time to deliver the question. They actually speak over the
top of the question. The problem for the interviewer here is that the Court may hold that the suspectdidnʼ
t in fact hear the question ― or,indeed,that the question was not successfully asked.In either casethe ability to ask the court to draw a proper inference might prove difficult.
Responding with “
no comment”is one method suspects can adopt when refusing to give adequate
responses in interview.Another is just remaining silent.Much like saying “
no comment”there is morethan one way of remaining silent in an interview.The suspect can stare directly at the interviewers in
an attempt to intimidate them or he can ignore them completely and adopt a body-language reinforcing
this stance.This could be as extreme as standing and facing the wall or,less dramatically,they mightjust lay their head on their arms on the table feigning sleep.The interviewers need to have a response
for these tactics ― not least ensuring that the interviewee is not suffering some sort of mental
break-down making his health and well-being an issue. In short, the interviewers need to ensure that
there is nothing existing at the time that will impact on the reasonable expectation of the suspectanswering.
B. Written Questions
If there is likely to be any doubt that the question has been put to the suspect an option exists forthe interviewers to write them out,much like a questionnaire,and give them to the interviewee.As is
always the case there are additional points that need to be considered with such a tactic but it is an
option.It is also something that is worth considering as giving advanced notice ofwhat will be includedin the next interview.
C. Pre-Interview ʻDisclosureʼʻDisclosureʼis terminology often used when speaking about pre-interview briefings with thesuspectʼ
s legal advisor.This briefing reveals ― or ʻ
disclosesʼwhat material it is intended to discuss inthe next interview.The rationale for such a practice is to give the opportunity for the legal advisor to,in private,advice the suspect and take instructions from him.Whilst this sounds perhaps like the police
being overly helpful there are, in fact a range of investigative benefits in existence here.
If the police ask a question the suspect could make ʻ
no commentʼ
.He could claim that he did so,onthe guidance of his legal advisor. His legal advisor could in turn claim that they had insufficient
information from the police on which to base coherent advice to their client ― thus ʻno commentʼwasthe only advice they could give.If the Court considered this as being circumstances existing at the timeof the interview that would have removed the reasonable expectation for the suspect to answer thequestions put to him in interview it is possible for no proper inference to be drawn from the suspectʼsrefusal to answer it. To be clear:there is no legal obligation to disclose anything in advance of theinterview but it is something that is occasionally done to progress the interview process. There is
obviously the pitfall here of revealing so much of your case that the suspect has an opportunity toconstruct a false explanation to fit the facts of the case ― and this could be argued if ʻ
pre-interview
disclosureʼwas not dealt with professionally and with an investigative mindset.To illustrate this point
let us look at the introduction of scientific evidence,such as a finger-print of the accused at the scene,
into the interview.
Let us consider an investigation where a school has been broken into during the long summer
holiday and a lot of wanton damage and destruction has been caused.This includes heating pipes that
had been suspended from the ceiling in the reception hall having been pulled down,flooding the area.
The fingerprints of three people are discovered on the upper part of one of the pipes ― consistent withpeople swinging on it and it eventually giving way under their weight.These fingerprints are identified

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as belonging to three students of the school.The three youths were all interviewed simultaneously.The
legal advisor of one youth was given the full circumstances of the scientific evidence:the fact that it
was fingerprints,where they were― both where in the building and where on the pipe― and theywere
also given photographic evidence.In interview this youthʼs account was that he and his friends,during
term time (ie when they had legitimate access to the school),had held a competition to see who could
jump the highest ― and make a mark highest on the wall. The youth went on to explain that he wasso good at this game that he climbed onto the banister rail of the stairs in the reception and jumped
from there
and was even able to just about touch the heating pipe.That was why his fingerprints
would have been found on something that was normally twenty feet off of the ground ― certainly notbecause he had swung on the pipe breaking pulling it from the ceiling. Poor ʻ
disclosureʼtactics had
given him the ability to construct a whole story around the potentially damning piece of evidence. A
more thought-through disclosure strategy was used on the second youth.
The second youth was told only that the police had “intelligence”that suggested he (the youth)
might have been responsible for the damage. It was left for the youth and his legal advisor to ponder
what this ʻ
intelligenceʼmight have been.Was it an independent informant or one of the other detainees
in an admission to the police, was it closed-circuit television footage or something else. The legal
advisor argued that he did not enough information on which to advise his client ― hence the youth
made no comment to the questions put to him.In the next ʻ
disclosureʼpackage it was then revealed tohim that the ʻintelligenceʼwas in fact ʻscientific, forensic intelligenceʼ. Still the legal advisor did notknow whether this ʻ
intelligence was likely to be a footwear mark,fingerprint,DNA or fibre evidence― or something else.The interviewing officers pointed out that all they were trying to do was secure
an uncontaminated account from the youth that might explain his probable presence at the scene of thecrime but the youth maintained his position of making no comment. The officers revealed next that
there was fingerprint evidence available to them. The youth obviously pointed out that he was astudent at the school and so his fingerprints were likely to be present. It was only when the locationof the fingerprints was revealed to him did the youth make a reply― this being that he had heard thedamage going on and entered the building in an effort to see what was happening.In doing so,he musthave inadvertently grabbed the pipe (which was now at waist level) ― thus leaving his fingerprints
behind. Any subsequent Judge and jury would be able to see that ample opportunity had been given
to the youth to explain his involvement,and that he only chose to do so when given the whole amountof information linking him to the scene. Pre-interview disclosure therefore does not need to tie thehands of the interviewer. Indeed it is sometimes helpful to consider it alongside one of the National
Police Improvement Agencyʼ
s Principles of Investigative Interviewing.
D. Facilitating the Cooperation of Suspects:Early Admission of Guilt
The fifth Principle states:“Investigators should recognise the positive impact of an early admission
in the context of the criminal justice system”(NPIA 2009). The question that this raises for aninterviewer is:are they obliged to reveal more information in advance of the interview than they would
otherwise have intended ― in order to provoke an early admission (if,indeed the interviewee is guilty)
or is it right to hold back the information in order not to contaminate any early confession ― thus
allowing the offender to demonstrate their true regret?The answer is almost certainly unique to each
investigation and goes back to the ʻJustified, Authorised, Proportionate, Accountable, Necessaryʼapproach to defensible decision making discussed earlier.If there is any doubt about the contributionthat an admission in interview can make to the sentence that an accused can receive in Court some timelater it should be removed by the Sentencing Guidelines Council.When considering mitigating factors
relevant to the offender they state:The issue of remorse should be taken into account at this point［oncethe seriousness of the offence has been considered］along with other mitigating features such asadmissions to the police in interview.(Sentencing Guidelines Council 2006).The interviewer needs to becareful how this guidance is introduced into the interview so as to ensure it does not become interpreted
as an unfair inducement. It is almost certainly for this reason that very few interviews contain thediscussion in such stark terms.
E. The Custody-Time Clock
The incremental approach to ʻ
disclosureʼused in the example above with the youthsʼfingerprints on
the school heating pipe identifies another consideration for the interviewer:“
How much time have I got
left before this suspect needs to be released?”The Police and Criminal Evidence Act 1984, Code C,

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paragraph 1.1 lays the foundation:“All persons in custody must be dealt with expeditiously, and released
as soon as the need for detention no longer applies”. Section 37 of the same Act states that where aperson has been arrested for an offence:
If the custody officer determines that he does not have such evidence before him［to charge thedetainee］, the person arrested shall be released either on bail or without bail, unless the custody
officer has reasonable grounds for believing that his detention without being charged is necessary
to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such
evidence by questioning him.
Here it is clear that a person can be held in custody solely for the purpose of interviewing them.But
does incremental ʻ
disclosureʼconflict with an ʻ
expeditiouslyʼdealt with investigation and unfairly
extend the time a person spends in custody ― particularly if to be interviewed is the sole reason he isso detained?We are back,yet again,to defensible decision making ― and decisions of this nature will
have to be defended on a regular basis to an ever escalating-in-authority independent reviewer.
Section 40 of the Police and Criminal Evidence Act 1984 states that a detainee who has not been
charged must have his continued detention reviewed and further authorised not later than six hours
after the initial detention was first authorised. The detention must be reviewed again not more thannine hours after the previous one was conducted and subsequent reviews will be at intervals ofnot morethan nine hours ― up to a maximum period of detention not exceeding 24 hours.These reviews will be
conducted by an officer of at least the rank of inspector who has not been directly involved in theinvestigation.
Section 42 of the same Act authorises an officer of the rank of Superintendent or above to extend
this maximum by another 12 hours in certain circumstances, namely:
it is an indictable offence;the detention continues to be necessary to secure or preserve evidence relating to an offence
for which he is under arrest or to obtain such evidence by questioning him;andthe investigation is being conducted “
diligently and expeditiously”.
This has the potential to extend the detention up to 36 hours without charge, by which point, if afurther extension is desired it will be a matter for M agistrate to rule on.
Initially a Magistrate can issue a Warrant of Further Detention to extend the custody period for up
to a maximum of 36 hours (making 72 hours in total).Application can later be made for this warrant
to be itself extended to a maximum of 96 hours detention ― after which the suspect must be charged
or released.
It is right to recognise that a significant amount of legislation,requirements and provisos have beensummarised in these few sentences but,for the purpose of investigative interviewing and the tactic ofincremental disclosure ― the point is made:the investigation (and therefore the interview) must be
dealt with diligently and expeditiously and an independent Inspector, then Superintendent, thenM agistrate must be regularly convinced the need to detain the suspect remains. These review thresholds give the suspectʼs legal advisor the opportunity to put forward their views regarding,not least,theinterviewerʼ
s diligence and expedience.Whilst these views are put to the Review Officer (the Inspector,
the Superintendent or the magistrate)a tenacious legal advisor will have already made their mark in
the interviews ― and interviewers need to be ready for these interventions.
F. Dealing with Legal Advisors in Interviews
Ideally police interviews with suspects will be conducted by two interviewers ― one to lead theprocess and ask the questions and the second to take notes, summarise as appropriate and otherwise
assist his or her colleague as necessary. A rule of thumb tactic for police officers when dealing withlegal advisors is that the lead-interviewer should remain engaged with the interviewee and the26

155TH INTERNATIONAL TRAINING COURSE
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second-interviewer, the note-taker, should be the one who responds to any intervention during theinterview by the legal advisor. A simple rationale for this is if the legal advisor ʻ
winsʼthe argument
then the lead-interviewer has not ʻ
lost faceʼin the eyes of the suspect ― thus whatever ʻ
engagementʼ
existed between the lead and the suspect, none of it has been lost. If any professional credibility has
been lost in the room (in the eyes of the suspect)it has been lost by somebody not directly interviewing
them.A second,more reasoned,basis for the second interviewer engaging with the legal advisor is thatit does not mean that the lead-interviewer has to be distracted from their train of thought.Often,when
an interview is going well (in the eyes of the police)a legal advisor will make an intervention merely
to break the momentum. Allowing the lead interviewer to maintain their line of thinking whilst theircolleague deals with the distraction is extremely helpful to the lead.This tactic can even be enhanced
by manufacturing a specific seating arrangement in the interview room. Look at the setting below:

Even if the second interviewer deals with the legal advisorʼs intervention they are talking across the
diagonal of the table― across the line-of-sight that exists between the lead interviewer and the suspect.
This can potentially disrupt the engagement that you want to continue to exist between these two
individuals. Just swapping the interviewers seating positions means that this is less likely to happen.
A variation on this theme ― and one that provokes discussion amongst trainees ― is that shown
below:

Here the rapport between the lead and the suspect is much easier to maintain and any discussion
between the legal advisor and second interviewer can seem almost ancillary to the interview going onover the other side of the table.Another benefit of this seating plan is that there is no barrier between
the interviewer and the suspect.This may be advantageous or it may not be― and there may be otherfactors to consider too ― but the point is, even something that we often do without thinking (such as
walking into an interview room and sitting down)should be planned for in an investigative interview.
G. Tactical Interview Advice:The Interview Manager
Interview Manager/Coordinators have already been referred to earlier in this essay.Their role is,amongst other things,to advise on a range of planning and tactical considerations (some of which havebeen discussed above). This coordination is crucial to the investigation as a whole as so many things
can upset the interview strategy unless it is coordinated. A well meaning press-release to the newshungry media following the discovery of a dead body can ― and will ― influence a pre-interview
disclosure strategy.The press release will,by definition,release information to potential witnesses andthe offender thus contaminating future interviews.A commonly practiced investigative technique is thehouse-to-house enquiry. Unless this is coordinated by or with the Interview M anager an injudicious
release of information into the public domain can occur.Investigative Interviews stretch far beyond theconfines of the interview room; equally factors previously not considered as relevant can have amassive impact on what happens during that maximum of 96 hour detention.
H. Tactical Interview Advice:The Psychological Interview Consultant
Sometimes even more assistance is required and this can come in the form of a Behavioural
Investigative Advisor (BIA)or,more recently,a Psychological Interview Consultant (PIC).In the past27

RESOURCE MATERIAL SERIES No. 92
these specialists have been referred to as psychological profilers, forensic psychologists and criminal
profilers amongst other titles. They will almost certainly not be police officers but are an external
service who can be called upon as and when considered necessary. For many years they have been
considered as having a contribution to make to investigations as a whole it has only been in relatively
recent years that their contribution to investigative interviewing has become finely honed.
They can offer interview guidance against specific character disorders:a psychopath,for example
can be superficially charming and intelligent, and yet under the surface they might be unreliable,
dishonest,insincere,manipulative and egocentric.When interviewing such a person they will say that
there is little point in spending too much time on trying to build a rapport with the suspect.Interviewers
should avoid criticism of him or his actions and also avoid conveying or expressing emotions. A PIC
will also say that there is limited value in appealing to a psychopathʼs better nature as he may well nothave one. If he does it is quite possible that this is a hard-to-reach area of his psyche.
A second example would be a suspect with a histrionic personality disorder will quite possibly seelife as mundane and boring and will crave attention and excitement. In interview it might be helpful
to flatter their intelligence and independence and to emphasise the need to resolve the situation.
Equally a paranoid person might well be suspicious, mistrustful and hyper-sensitive. Here, if theinterviewers emphasised the importance of the suspect giving their version of events then this might beappropriate motivation to encourage an account from them.
These are just three examples of the sort of generic advice that a BIA and/or a PIC might be able
to give,but more specific assistance might also be possible,depending on how much information about
the suspect exists on which they can build their guidance. It is quite possible for them to advise on
things like:
Nature and timing of arrest
Who is to make the arrest
Characteristics of interviewers
Duration of interviews
Timings of interviews
Order of questions asked
When and how to make challenges
Topics to include /avoid
What would be the most effective first question
How might questions be most effectively worded
How can rapport be most effectively established and maintained
Just as importantly BIAs and PICs recognise also what they cannot do. They are academics witha background in behavioural sciences;they are not investigators,interviewers or interrogators.They
do not pretend to keep up with relevant legislation surrounding investigation and/or interviewing nor
do they profess to be able to ʻ
get inside the mind of a killerʼor to ʻ
push the right buttons in order to
get them to confessʼ
.The stereotypical portrayal of a criminal psychologist in Hollywood movies andtelevision dramas is often an image they need to dismantle for some more naive investigators!

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V. CONCLUSION
This paper has aimed to give an overview of some of the strategies,tactics and techniques that canbe considered during an investigative interview.Whilst its focus may appear to have been on suspects
much of what has been discussed is equally applicable to some witnesses. Each tactic needs to beadapted to suit the circumstances that exist at the time,the presentation ofthe interviewee and the skillset (and confidence)of the interviewer.It is hoped that this paper has also shown that ongoing advice
is available to interview teams and Senior Investigators ― both from within their own ranks andbeyond. In conclusion, consider the words of filmmaker Errol M orris:
I think an interview, properly considered, should be an investigation. You shouldnʼ
t know what
the interview will yield. Otherwise, why do it at all?
Follow that mindset, in both witness and suspect interviews and you will not go far wrong.
References
Central Police Training and Development Authority(2004)The Practical Guide to Investigative Interviewing. London:Centrex.
Centrex (2006)Practice Advice on the Right to Silence (Revised Edition) Wyboston:ACPO.
Clarke, C. & Milne, R. (2001) National Evaluation of the PEACE Investigative Interviewing Course.
Portsmouth:Institute of Criminal Justice Studies.
M inistry of Justice (2011)Achieving Best Evidence in Criminal Proceedings. London:HMSO.
National Police Improvement Agency (2009) Briefing Paper: National Investigative Interview Strategy
Wyboston:NPIA.
Sentencing Guidelines Council (2006) Overarching Principles: Domestic Violence Definitive Guidelines
London:Sentencing Guidelines Council.
Skills for Justice(2008) National Occupational Standards Element CJ203 Carry out specialist interviews
with suspects［online］Available from http://www.college.police.uk/en/10587.htm>accessed 13
Aug. 2013.

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PLEA BARGAINING, COOPERATION AGREEM ENTS,
AND IMMUNITY ORDERS
Robert R. Strang

The term “plea bargaining”has become a label often used to describe a series of disparate
mechanisms to investigate, prosecute, and adjudicate criminal liability. For some, plea bargaining is
the indispensable tool to address criminal conduct,while for others it has become a symbol of coercion
and injustice. The purpose of this Article will be to distinguish the very different mechanisms that areoften grouped under the plea bargaining concept,to examine their key characteristics,and to analyze
some of the benefits and costs that come with each approach.

I. PLEA BARGAINING
From the payment of wergeld to the victimʼ
s family by the accused among Germanic tribes inRoman times, the consensual resolution of criminal liability is an ancient practice. Today, different
forms of plea bargaining practices are growing around the world. Jurisdictions from both theadversarial and the inquisitorial traditions provide alternatives to the full criminal trial.
At its essence,the plea bargain is an admission ofguilt in return for,or in hope of,a shorter sentenceor alternative disposition. It does not necessarily require cooperation, just acceptance of personal
responsibility in return for mercy. While plea bargaining is sometimes thought of as an innovation of
the United States and contrary to the search for the truth obtained during a full trial and the principleof legality (mandatory, rather than discretionary, prosecution decisions)observed by civil traditions,consensual resolution and abbreviated trial procedures in criminal cases follow a long tradition
existing in both common law and civil law jurisdictions.
Plea bargaining can serve multiple purposes. The expedited procedures allow for more efficient
resolution of cases,which promotes judicial and prosecutorial efficiency. As full blown trial with thefull panoplyofrights takes substantial judicial resources,manycountries have adopted plea bargaining
to reduce court congestion. The consensual resolution of simpler or minor offenses is seen as needed
to ensure that the right to a speedy trial in more serious cases can be protected.
There are additional motivations for adopting plea bargaining. Trials are inherently uncertain;insome countries, prosecutors see plea bargaining as a way to ensure that defendants who they believe
have engaged in criminal activity receive some punishment, even if the length of sentence is reduced.
In addition,in cases where witnesses have been traumatized by the underlying criminal activity,a plea
bargain allows the victims to avoid having to face the very same individuals who harmed them. In
cases where investigative or other confidential information (or possibly illegal investigative action)is
involved, a plea bargain may avoid the need to disclose such information during a public trial.
Finally,a plea bargain can be seen as serving a valuable penological purpose. Defendants in mostplea bargains must acknowledge their own guilt in open court. Such public acceptance ofresponsibility
can be an important first step on the defendantʼ
s road to rehabilitation. In the context of international
criminal tribunals and crimes against humanity, such acceptance of responsibility may have evenlarger societal benefits as a step toward national or international reconciliation.
There is a variety of plea bargaining and other consensual resolution systems employed in different
Resident Legal Advisor to the Philippines, Office of Overseas Prosecutorial Development, Assistance and Training(OPDAT), United States Department of Justice.

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jurisdictions. The particular approach adopted reflects past historical experience, different legal
cultures, distinct criminal systems, and particular motivations for change.1
In countries with civil law traditions where plea bargaining was not historically considered
acceptable, the diversion of minor criminal offenses where the punishment did not involve detention
was still considered appropriate.There is the possibility of bargaining by the parties in such cases,but
without the possibility of imprisonment,such bargaining is not seen as unduly coercive to the accused.
Depending on the system,a confession may be required. In other countries,judges are not involved in
the diversion.
Another form of consensual resolution of cases is victim accused reconciliation. This approach,which has always existed in traditional criminal justice systems,is enjoying an intellectual renaissanceelsewhere under the concept of “
restorative justice”. Typically involving some type of payment fromthe accused to the victim or the victimʼ
s family, this type of victim-centered resolution is more often
applied where the injury is of a more private nature, such as petty assaults, and for offenses where
private prosecutors on behalf of the victim,rather than public prosecutors of the state,were empowered to bring charges. It often involves direct bargaining to reach a compromise between the accused andthe victimʼ
s representatives and therefore is seen as not violating the civil law “principle of legality”
as it exists outside the framework of state prosecution. Such reconciliation is seen as a tool to restore
community peace and avoid ongoing blood feuds. It faces criticism, however, because it can permit
particularly wealthy and powerful defendants to avoid criminal liability.
Pioneered in Prussia in the nineteenth century, penal orders are another form of consensual
resolution of cases.2 Prosecutors offer defendants a specific punishment on a take it or leave it basis
prior to the initiation of criminal proceedings, although in some countries additional bargaining
remains a possibility. Penal orders face criticism as they are often implemented without the assistanceof defense counsel or judicial oversight.
Other countries, such as Italy and Russia, provide for a fixed statutory discount, typically a one
third reduction in sentence,for agreeing to plead guilty and forego a criminal trial. Some jurisdictions
have limited this option to more minor cases, although once a legal system begins to experience thesignificant reduction in caseload, the range of cases often has been statutorily expanded.3 Somecountries such as France set a minimum discount of one third, but judges remain free to sentence
defendants to shorter term,while in other jurisdictions there is a maximum discount,such as in Croatia
which limits the actual sentence to at most two thirds of the sentence provided by statute. Admissionof guilt is not always a prerequisite ― sometimes a plea of nolo contendere,such as in Spain and Italy,
is sufficient. As the sentence reduction is determined by statute,there is little bargaining. In jurisdictions where there is a high degree of corruption, such a statutorily-determined plea bargain system
reduces a suspicious publicʼ
s perception that a plea agreement was arrived at corruptly.
Yet other countries,such as Bulgaria and Argentina,still have a trial,but use expedited procedures.
The defendant agrees to a trial on the investigative file, waiving some procedural rights to confront
witnesses,for example,in return for a lighter punishment. Such forms of abbreviated trials may help
with court congestion, but do less to contribute to reconciliation as the defendant does not admit hisor her guilt and can even be acquitted.
On the far end of spectrum is the U.S. system of plea bargaining, where all cases are subject to
1A comprehensive description with specific citations of the different approaches to plea bargaining throughout the worldis contained in Stephen C. Thaman, Plea-Bargaining, Negotiating Confessions and Consensual Resolution of Criminal
Cases, Electronic Journal of Comparative Law, vol. 11.3 (Dec. 2007).
2D. T. Johnson, Plea Bargaining in Japan, in M . M. Feeley & S. Miyazawa (eds.), The Japanese Adversary System inContext 142-45 (2002). There is some academic dispute as to whether plea bargaining exists in Japan ― some observethat the apparent fact that a Japanese defendant in pretrial custody who admits to his crime is often then released andlater sentenced to time served is a form of plea bargaining.
3For example, in 2001, Russia first introduced plea bargaining for cases involving punishment less than five years, andthen expanded it to ten years only two years later. Similarly,in Italy,the system expanded plea bargaining from cases
punishable by three yearsʼimprisonment to those punishable by five.

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bargaining both over the charges and the punishment. Given the wide range of punishment for specificoffenses,some critics see the plea bargaining system in the U.S.--which has grown from approximately
half of all U.S. criminal cases in the 1920s to around ninety-five percent of criminal cases today --ashighly coercive. Even within such a system, there are potential protections, including increased
discovery to the defense prior to the guilty plea,procedural safeguards to the defendant at the time ofplea,and judicial control over sentencing. In federal U.S.prosecutions,the plea bargain is memorialized in a written agreement where the benefits of leniency in return for the guilty plea are defined
through the United States Sentencing Guidelines, which provide for a specific reduction of the defendantʼ
s applicable offense level, and corresponding sentence range, in return for such “
acceptance of
responsibility.”
There has been a significant wave of expansion in the growth of plea bargaining mechanisms
throughout the world. Beginning twenty-five years ago with the introduction of the patteggiamento in
Italy, countries in the former Soviet Union,South America,Europe,and elsewhere have adopted new
systems of consensual resolution of cases. These laws more than changed the law books; plea
bargaining has rapidly been used to resolve an increasingly significant portion (often more than fifty
percent in some countries)of new criminal cases.
This increase in the spread of plea bargaining has not been without its critics. Adversarial systems
more readily adopt plea bargaining,finding that if the adversarial parties reach agreement,no trial isneeded. Civil law countries hold closer to the idea of the search for the material truth,and therefore
legal commentators believed that such plea bargains prevent that truth from being found. Many critics
believe that the absence of equality of arms during the investigative stage makes plea bargaining
inherently unfair, while others believe that lack of procedural and substantive protections to theaccused during the plea bargaining process and the overall lack of judicial supervision increase thepossibility that the innocent will increasingly be coerced into pleading guilty to avoid potentiallydraconian punishment if they go to trial. Some commentators lament the introduction of plea
bargaining as part of an “Americanization”of criminal procedures,without appropriate considerationof whether such “transplanted”ideas are appropriate within the existing traditions of the receiving
country.4 Others see plea bargaining as a return to the show trials of the past, while a few see theprocess of plea bargaining to obtain confessions of guilt as almost the modern form of torture.5
With the expansion of different forms of consensual case resolution expanding to many civil law
jurisdictions, it appears that plea bargaining, in whatever form, is likely to continue. Whatever
particular form that prevails,it would seem that some protections,such as providing the accused somebasic understanding of the evidence against them, as well as ensuring that any plea is knowing,
intelligent,and supported by a factual basis through a judicially-controlled process with the participation of a defense attorney are emerging as potential international “best practices”.

II. COOPERATION AGREEMENTS
By comparison to traditional plea agreements,cooperation agreements are investigatorytools. The
cooperating defendantʼ
s admission of personal guilt is not the primary goal;the point is to use thiscooperating defendant,proactively or historically,to develop evidence to prosecute other individuals,
usually co-conspirators. Often seen proverbially as using “
the little fish to catch the big fish,”in somejurisdictions, such as the U.S., it can involve using the big fish to catch some of the little ones too.
The use of witnesses, sometimes called “crown witnesses,”6 who themselves are participants in

4See, e.g., M. Langer, From Legal Transplants to Legal Translations:The Globalization of Plea Bargaining and theAmericanization Thesis in Criminal Procedure, Harv. Intʼl L. J. 1 (2004);Cynthia J. Alkon, Plea Bargaining as a Legal
Transplant, A Good Idea for Troubled Criminal Justice Systems, 19 Transnatʼ
l L. & Contemp. Problems 356 (2010.
5J. H. Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3 (1978).
6In this Article,such witnesses with their own criminal exposure will be referred to as cooperating defendants when suchdefendants face criminal prosecution for their own conduct, and immunized witnesses when excused from criminal
prosecution. Often provisions for such cooperating witnesses are contained in newer witness protection laws,rather thanin the traditional criminal procedure.

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criminal activity is an increasingly accepted international practice. For example, Article 37 of theUnited Nations Convention against Corruption (UNCAC)provides:
1. Each State Party shall take appropriate measures to encourage persons who participate or who
have participated in the commission ofan offence established in accordance with this Convention
to supply information useful to competent authorities for investigative and evidentiary purposes
and to provide factual, specific help to competent authorities that may contribute to depriving
offenders of the proceeds of crime and to recovering such proceeds.
2. Each State Party shall consider providing for the possibility,in appropriate cases,of mitigating
punishment of an accused person who provides substantial cooperation in the investigation orprosecution of an offence established in accordance with this Convention.7
The driving motivation for the use of cooperating defendants is the need to combat organizedcriminal groups more effectively. Often operating under a code of silence, these criminal enterprises
are tightly knit and hierarchical. The criminal bosses are often several steps removed from thestreet-level criminal activity,making their criminal prosecution without the cooperation of lower-levelparticipants unrealistic.
In a case where multiple defendants are arrested,the accused might collectively benefit by remaining silent, but each knows that if one of the other defendants cooperates in the hopes of obtaining
leniency, they might be left behind if they hold out. This “prisonerʼs dilemma”encourages eachdefendant to consider pursuing cooperation at the earliest moment in the hopes of moving into thecooperating defendant status as quickly as possible before other defendants pursue that option and thedoor is closed.
While the concept of using cooperating defendants is straightforward,the mechanics can be trickier.
Cooperation can take place at different stages of the case. Cooperation with the police, particularly
at the time of the arrest or when the investigation first becomes known to that individual can be of
substantial value as the cooperating defendant may be able to surreptitiously elicit incriminatingstatements from co-defendants prior to their learning that the cooperating defendant has been arrested
and before the co-defendants have obtained counsel. Such proactive cooperation can also be extended
to cooperation in other unrelated cases,where the cooperating defendantʼ
s knowledge of how particular criminal activity transpires, such as in the narcotics area,makes them potentially ideal to engage
in controlled purchases.8
While such early cooperation can be of particular benefit to the investigation,in the U.S.,only theprosecutor can formally move a defendant into the cooperating status. An investigator may promisea defendant that they can bring the cooperation of the defendant to the attention of the prosecutor,butthey lack the legal capacity to do so unilaterally.9
Naturally defendants approach the idea of cooperation with trepidation. There is of course thephysical danger that cooperation may place them or their family in for betraying their former partners
in crime. Witness protection can help address this problem to varying degrees. Indeed,most individuals in the United States M arshals Serviceʼs “Federal Witness Protection Program”are criminal
defendants who are cooperating against their co-conspirators, not innocent citizens who happened to
7Article 26 of the United Nationʼ
s Convention Against Transnational Organized Crime (UNTOC) provides similar

encouragement.
8Proactive cooperation can potentially take place throughout the process or even after the trial, although its potential
for success substantially diminishes over time and such street work may raise problematic bail and liability issues
particularly for violent criminals once a cooperating defendant has been charged or after s/he pleads guilty. As time
passes from the moment for arrest, historical cooperation in the form of information and testimony regarding pastcriminal activities become more the normal form of cooperation.
9 In many jurisdictions around the world, the police may offer to “look the other way”regarding a defendantʼs criminal
exposure and never bring that activity to the attention of prosecutors in return for information on the criminal activitiesof others. Such “
informal”cooperation arrangements are more similar to immunization as the criminal informant will
not face any criminal prosecution, although s/he will lack the legal protections of a formally immunized witness.

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witness criminal activity.10
In addition,the process of cooperation can be a complicated. Seeking to cooperate,the accused may
have to waive his or her right against self-incrimination and admit guilt prior to knowing whether the
proposed cooperation will ultimately be accepted by the prosecutor and they will receive the benefitsof cooperation. Some defendants may face such overwhelming evidence of their guilt that confession
without any form of limitation against its future use may be their only option. For others, the U.S.
prosecutor offers a “proffer agreement”a short term written agreement to govern a meeting between
the defendant,the defense attorney,the prosecutor and law enforcement agent at which the defendants
can offer his or her potential cooperation to law enforcement law enforcement without those admissions being directly usable against the defendant in court so long as their statement are truthful.
Indeed,in some jurisdictions,the potential cooperating witness must not only admit their culpability to
the crime under investigation, but also must describe their entire past criminal history to allow theprosecutor to evaluate them as a potential trial witness, thereby increasing their potential criminal
exposure if their cooperation does not work out.
In some countries,such cooperation in return for leniency can only be offered to the least culpabledefendant. In the U.S.,it is not so limited based on the idea that since the cooperating defendant will
still be pleading guilty, they will face punishment consistent with their role in the criminal activity,
minus whatever reduction their cooperation earns them. Thus,serious criminals are not getting a “freepass”for their cooperation, but rather only a reduction.
If the potential cooperation looks promising,the U.S.prosecutor then negotiates a written cooperation agreement with defense counsel which provides that the defendant will plead guilty to specificcriminal charges and provide cooperation under the direction of law enforcement. In return, theprosecution agrees that should the defendantʼ
s cooperation be determined to be both truthful and11 the prosecutor will submit a motion to the defendantʼ“substantial,”s sentencing judge detailing thecooperation and attendant circumstances. While the paradigmatic form of cooperation is testimony
against co-conspirators, cooperation can come in different forms: in could be both proactive andhistorical,testimony and information (particularly if that intelligence or possibility of testimony led toguilty pleas of co-defendants), and could apply to cases before that court or in a court in a different
jurisdiction, including a different country.
At trial,the cooperating defendant may be in an unusual procedural posture. In some jurisdictions,such as Russia,the defendant remains part of the same case as the defendants against which s/he will
testify. This causes some concern, when the defense attorneys for the remaining defendants seek todiscredit the cooperating defendant and the court criticizes them for playing the role of prosecutor. In
the U.S., by contrast, severance is the approach. The cooperating defendant separately pleads guilty
earlier in a separate and generally closed courtroom proceeding, and then testifies against the coconspirators as a government witness. While the cooperating defendant has pled guilty prior to
testifying against their co-conspirators, they typically have not yet been sentenced, allowing theprosecutor and later the judge an opportunity to assess their full cooperation before determining what
reduction in sentence,if any,their cooperation has earned.12 Thus the U.S.prosecutor must determine
whether the cooperating defendant will prove to be a productive witness and sufficiently corroborated
by other evidence despite the fact that they will be aggressively cross-examined by the remaining
defendants regarding the cooperation agreement that they have entered into with the government andtheir motivation to blame their co-defendants in an effort to gain the favor of the prosecutor in orderto receive a reduced sentence.
Under the U.S. system, the judge maintains discretion over the sentencing of the cooperating
defendant. The United States Sentencing Guidelines gives the sentencing judge the authority to reduce
the sentence of the cooperating defendant as follows:
10 Robert E. Courtney III, Insiders as Cooperating Witnesses: Overcoming Fear and Offering Hope (2010).
11 As noted above, the UNCAC also makes use of the “substantial”standard to measure cooperation.
12 Rule 35 of the U.S. Rules of Criminal Procedure permits postsentencing reductions under limited circumstances, somost cooperating defendants hope to have their sentencing delayed while they cooperate.

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5K1.1. Substantial Assistance to Authorities Upon motion of the government stating that thedefendant has provided substantial assistance in the investigation or prosecution ofanother person who
has committed an offense, the court may depart from the guidelines.
(a)The appropriate reduction shall be determined by the court for reasons stated that may include,
but are not limited to, consideration of the following:(1)the courtʼ
s evaluation of the significance and usefulness of the defendantʼ
s assistance,taking
into consideration the governmentʼs evaluation of the assistance rendered;(2)the truthfulness, completeness, and reliability of any information or testimony provided by
the defendant;(3)the nature and extent of the defendantʼ
s assistance;(4)any injury suffered, or any danger or risk of injury to the defendant or his family resulting
from his assistance;(5)the timeliness of the defendantʼ
s assistance.13

III. IMMUNITY ORDERS
Immunized witnesses are a close cousin of the cooperating defendant, but for the immunizedwitness, the result is even better. So long as they provide truthful testimony, they typically face nocriminal liability at all.
There are two broad categories of immunity. First a witness could receive the broader “transactional immunity”, which precludes the Government from prosecuting a witness for any offense (or“transaction”) related to their compelled testimony. Alternatively, a witness could receive “useimmunity,”which precludes the Government from using,directly or indirectly,the witnessʼcompelled
testimony in a later prosecution of that witness. As a practical matter,the limitations on indirect useof compelled testimony make use immunity the near functional equivalent of transactional immunity.
The concept of immunity enjoys some international sanction. Section 37(3)of the UNCAC specifically encourages the state parties to consider such provisions:
Each State Party shall consider providing for the possibility, in accordance with fundamental
principles of its domestic law,of granting immunity from prosecution to a person who provides
substantial cooperation in the investigation or prosecution of an offence established in accordance with this Convention.14
Given that the immunized witness receives immunity from prosecution, in many countries, theimmunized witness is limited to the individual in the conspiracy with the least culpability.
Why provide such an attractive offer to the witness? Generally speaking, there are two reasons.
The first is that the witness has a minor role with little criminal exposure,but until the threat of that
limited exposure is legally removed,the witness can still exercise their right against self-incrimination
to testify. In order to secure their testimony,an immunity order or a non-prosecution agreement15 canbe negotiated removing the possibility that their testimony can be used directly or indirectly againstthem so long as it is truthful (perjury by a witness following the grant of immunity still remains a basis
for criminal liability). This tool can be particularly useful in the area of corporate criminal liability,
13 See United States Sentencing Commission Guidelines M anual (Nov. 2012).
14 Similarly, Article 26(3)of the UNTOC provides similar encouragement.
15 Immunity orders and nonprosecution agreements serve the same purpose,but are slightlydifferent in form and process.

An immunity order is entered before the court whereas a non-prosecution agreement is an agreement, much a plea
agreement, between the prosecutor and witness.

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where lower-level employees engage in criminal activity at the instruction and for the benefit of senior
management.
The second type of immunized witness is where there is suspicion of serious wrongdoing by thewitness but insufficient evidence against them in order to pressure him or her to be a cooperating
defendant. Therefore, the offer of immunity is the only means to gather sufficient evidence in orderto bring a criminal case against the co-defendants. Indeed, if all the co-defendants could enforce anagreement to remain collectively silent, there might be no criminal convictions at all. At least in the
U.S.,the grant of immunity allows the government to compel testimony from a defendant,like it could
from any other person under its jurisdiction, because the right against self-incrimination no longer
exists when the possibility of criminal prosecution against the testifying witness has been removed.
This second category of immunized witness presents a more significant problem ― a potentially verysignificant criminal may be avoiding prosecution and the prosecutor may not have a full sense of theircriminal exposure. The general public may be outraged that an admittedly guilty individual is facing
no criminal sanctions at all because theyreceived immunity. It is therefore more ofa tool oflast resort.
Because immunity will generally allow a guilty person to avoid criminal liability,there need to beadequate safeguards to ensure that it is not misused. In the U.S.federal system,the grant of immunity
can only be obtained from a centralized office, the Department of Justiceʼs Office of Enforcement
Operations,to ensure that the grants of immunity are used only in appropriate cases and to ensure thatone prosecuting office does not inadvertently grant immunity to a witness who was subject to an active
criminal investigation in another office without proper consultation.
As a result of these concerns, immunity must be granted only after careful deliberation. Some
criteria in making this decision could include:a. The seriousness of the offense,and the importance of the case in achieving effective enforcementof the criminal laws;b. The value of the potential witnessʼtestimony or information to the investigation or prosecution;c. The likelihood of the witness providing useful testimony;d. The personʼ
s culpability relative to other possible defendants;
e. The possibility of successfully prosecuting the witness without immunizing him;andf. The possibility of adverse harm to the witness if he testifies pursuant to a compulsion order.
While thought of as primarily a tool in criminal prosecutions, immunity can be used outside thecriminal law context. For example, under U.S. law, an immunity order is potentially available:
Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify orprovide other information in a proceeding before or ancillary to―(1)a court or grand jury of the United States,(2)an agency of the United States, or(3)either House of Congress, a joint committee of the two Houses, or a committee or a
subcommittee of either House,
and the person presiding over the proceeding communicates to the witness an order issued under
this title, the witness may not refuse to comply with the order on the basis of his privilege
against self-incrimination;but no testimony or other information compelled under the order (orany information directly or indirectly derived from such testimony or other information)may
be used against the witness in any criminal case,except a prosecution for perjury,giving a false

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statement, or otherwise failing to comply with the order.”16
In short, the grant of immunity is a significant tool in investigating criminal enterprises. Becauseof the substantial concern in allowing the truly guilty to go free, it must be used carefully.

16 Title 18, United States Code, Section 6002.

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COMPARATIVE TRIAL ADVOCACY
Robert R. Strang

Trial technique is one of the more idiosyncratic aspects of the law,where wide variations in legal
rules, cultural norms, and historical traditions have led to divergent courtroom practices. There arefundamental differences in criminal procedures of many legal systems ― professional versus lay factfinders,oral versus written testimony,and judicial versus party questioning of witnesses. Practitioners
in different countries often appear to speak a different legal language. At first glance, comparative
trial advocacywould seem to offer little opportunityfor meaningful cross border sharing ofexperience,
except in narrow circumstances where countries come from a similar legal tradition.
Nevertheless, recent experience suggests there are some sufficiently universal or near universal
issues in advocacy such that trial skills can be shared across jurisdictions. Trial advocacy programs
conducted in various countries and across various legal traditions over the past ten years indicate that
there is a basis for productive comparative cooperation, even if such programs should be tailored toreflect local procedures and sensibilities.
There is also a convergence in the methods of teaching trial advocacy. The learn-by-doing,
repetition-based experiential model for trial advocacy skills transfer is seeing wider adoption. This
technique,pioneered by the U.S.National Institute for Trial Advocacy (NITA),relies less on lectures
bydistinguished legal academics,and instead focuses more on small group exercises where participants
test their own skills before receiving both skilled practitioner and peer critique to sharpen core trial
skill competencies, followed by a moot court experience.
This Article will focus on two trial skills for prosecutors that can be fruitful areas for sharing ofbest practices:examination of government witnesses (direct examination)and examination of defense
witnesses including the defendant (cross examination). These topics are often individually the subjectof multiple chapters in books on trial technique, or even the subject of an entire book by itself.
Therefore, this Article will necessarily only discuss some of the broader tactics and considerations.
Persuasive direct examinations begin with witness preparation. In some jurisdictions,prosecutors
do not meet with witnesses in advance of trial out of concern that they could be accused of impropercoaching. In reality, preparation insures that witnesses provide coherent, streamlined testimony
focused on the key issues of trial. The benefits of good witness preparation outweigh the potential
downside of giving a defense lawyer the opportunity to make the argument that there was collusion.
Proper witness preparation requires having both the prosecutor and the investigator present during
meetings with the witness. This ensures that the prosecutor has the benefit of the investigatorʼ
sknowledge of the case and ensures that if there is any allegation of fabrication or prosecutorial
misconduct, the prosecutor has a witness (the investigator) to rebut that claim without having tobecome a witness in their own proceeding. Having the investigator participate in the trial preparation
also helps build a strong team model of police/prosecutor cooperation that should begin at the outsetof the investigation and continue through the trial itself where the investigator can sit with theprosecutor during the testimony.

Resident Legal Advisor to the Philippines,U.S.Department of Justiceʼs Office of Overseas Prosecutorial Development,
Assistance and Training (OPDAT). The Author has organized or participated in trial advocacy programs in Hungary,
Russia, Indonesia, Pakistan, and the Philippines, involving participants from twelve countries.

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Through witness preparation,the witness understands the process of being a witness,what will be
involved in direct and cross examination, and how to be comfortable in the courtroom setting. The
prosecutor better understands the strengths and limitations of the witness,how to phrase questions so
the witness understands what is being asked, and often discover additional relevant information, notnecessarily reflected in the investigatorʼ
s interview notes, that the witness has to offer. Standard
procedures include simulated questioning,review of prior statements,and use of exhibits. A properly
prepared witness will know what to wear in court,where to sit,what to do if there are objections,what
to do if they do not remember, how to respect both parties in the proceeding, and how to conduct
themselves generally in the courtroom. Some general instructions all government witnesses should
receive from the prosecutor could include:
TELL THE TRUTH ALWAYS.
Speak in your own words as you answer the questions.
Look directly at the person asking you questions―prosecutor, defense attorney, and/or the
court.
Take time and think before answering questions. Donʼt feel rushed.
Use the same effort in answering questions from the court and all lawyers.
Be positive in answers.
If you donʼt know an answer, say you donʼt know.
Ask for the question to be repeated or clarified if you are not sure you understand it.
Be comfortable with your limitations-every witness knows only parts of the case.
TELL THE TRUTH ALWAYS.
Prosecutors need to keep in mind two significant psychological observations: listenersʼattention
spans are approximately 20-30 minutes,listeners understand better when provided with both visual andoral information together, and listeners recall the information they hear first and last (“primacy andrecency”)more accurately than information conveyed in the middle. The witness will be judged not
only on the substance of their testimony, but also on their background and their demeanor. To keep
the listenersʼattention, unnecessary detail should not be included. The trier of fact will be making
judgments throughout the trial and filtering the evidence to fit those judgments. Therefore losing theirattention with unnecessary details or repetitive witnesses will undermine the case from the outset
regardless of how strong later witness testimony proves to be.
An effective direct examination itself can be divided into several stages: personal background;scene setting;transition to get the trier of factʼs attention;action description;exhibits to highlight andrepeat;acknowledgment of any bias or weakness;and a strong ending. During direct examination,theprosecutor wants to make the witness the star, yet still control them. Questions should use simple
words that convey an image, generally beginning with who, what, where, when, how, and please
explain. Use of transitional sentences between new areas of testimony is key to keep the listenerʼsattention. Prosecutors must avoid interjecting their own views and also avoid personal bad or
distracting habits. It is critical to listen to the witnessʼanswers ― the prosecutor may have heard theanswers a dozen times during witness preparation, but under the stress of trial it may come out
differently. It can be helpful to repeat a witnessʼown words to a previous answer in a follow up
question,although this should be done only on important answers and in moderation to avoid invoking
the judgeʼ
s ire. Pace is also extremely important ― it is necessary to slow down for key areas by using
a series of narrow questions and verbal and nonverbal cues. A prosecutor must maintain interest in
their own witness no matter how familiar the prosecutor is with their testimony or risk inadvertently
signaling to the trier of fact that the witness can be safely ignored or is unimportant.

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Physical exhibits are an important way to both corroborate a witnessʼtestimony and give them an
opportunity to repeat key portions of the testimony. A witness should have multiple opportunities tomake their point. For example,first,they can describe how a gun was pointed,second,they can thenidentify it in a search scene phone, and then third, they can show how the gun was pointed using the
gun itself.Using the same exhibits with different witnesses demonstrates to the court how the witnesses
reinforce each other. Demonstrative exhibits, such as summary charts, timeline charts, diagrams ormodels, may not actually be evidence, but they can also substantially aid the fact finder. Complex
information or information from different witnesses who may have testified days or weeks apart canbe combined in a single demonstrative exhibit. Witnesses will be more confident with demonstrative
aids to assist them, particularly if they have practiced with the demonstrative aids during witness
preparation. In cases where there is little physical testimony, demonstrative exhibits can give somemuch needed visuals to sharpen the case and bring the facts to life.
While all prosecutors have experience with direct examination of their witnesses,it is still possible
to apply new techniques to streamline the governmentʼ
s proof to make it both more efficient and more
effective.
By contrast, the cross examination of defense witnesses, particularly the defendant, provides asignificant challenge to prosecutors worldwide. Defendants who breakdown on the stand and admit
their own guilt make for good movies but that rarely happen in real courtrooms. The defendant is notbound by the truth;they will testify in any manner they reasonably hope will allow them to convince
the fact finder of their innocence. In addition, prosecutors generally do not receive a great deal of
specific information regarding the defendantsʼtestimony in advance ― the prosecutor may possess
some reports of post arrest statements by the defendant that can be used for cross examination, but
generally prosecutors do not receive significant helpful pretrial discovery regarding a defendantʼstestimony and are left guessing what that testimony may be based on the defense attorneyʼs oral or
written submissions to the court. In addition, most criminal trials have a predominance of witnesses
for the prosecutions, rather than witnesses for the defendant, so prosecutors generally have lesspractical experience in cross examining defense witnesses than their defense counterparts. Therefore,
following the direct testimonyofthe defendant or a defense witness,the prosecutor mayhave little time
to develop an effective cross examination on the spot.
An effective method to address these structural disadvantages to the prosecutor is to use aconcession-based cross examination approach. In a concession-based approach, the prosecutor prepares in advance a series of questions to use during cross examination that the witness will have toconcede or the witness will look like a liar or a fool to the fact finder. In other words,the prosecutor
can push through the theory of his case and support the testimony of prior government witnesses
through careful questioning of the defendant or defense witness before the witness becomes more
hostile.
M aintaining control of the defense witness through asking narrow, fact-based questions that thewitness must agree with is one key to successful concession-based questioning. This is not the time toseek opinions from the defense witness,or to ask the defendant or defense witness how or why they did
something or give them an opportunity to explain by asking a question that is too open ended. The
prosecutor should be seeking concessions on facts, not on conclusions ― the defendant will rarely
concede a conclusion and attempting to seek it may simply result in an unproductive argument overwhat conclusions to draw. This in turn will muddy the careful factual concessions that the prosecutor
hopefully has achieved.
Concession based questioning does not have to focus only on the testimony provided by the
defendant during the direct examination. This is not an opportunity to allow the defendant to simply
repeat their direct testimony,which would onlystrengthen its impact through repetition and further the
defenseʼs theory of the case. The cross examination also does not have to cover all areas that werecovered by the defendant on direct examination. Instead, the prosecutor should use this time morestrategically and focus on the areas the prosecutor wants to highlight,such as the defendantʼs need formoney, the items found in their home, the incriminating statement made at arrest. In fact, theprosecutor does not have to pursue topics in chronological order ― it can be disorienting to the40

155TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTSʼPAPERS
defendant if the prosecutor moves around in topics and the defendant does not know what will be next,
although the prosecutor must not also make it too disorienting for the fact finder. As with direct
examination,“primacy and recency”still matter,so the prosecutor should consider beginning the crossexamination in an area where they feel comfortable that they will score concessions.
One of the benefits of starting the cross examination with the concession-based approach (comparedto the frontal-assault approach where the prosecutor seeks to force the defendant to improbably admit
their guilt)is it allows the prosecutor to stay in control and develop a rhythm with the defendant inwhich the defendant is having to admit a series of small facts that strengthen the prosecutorʼ
s case.
The concession-based approach does not require of displays indignation or outrage. Quite the opposite,
it allows the prosecutor to appear to the fact finder as the systematic and reasonable person trying to
get to the truth rather than create an image of the prosecutor as an intimidating or emotional bully
trying to force a defendant to admit conclusions.
A straightforward example of a concession-based cross examination of the defendant would be
where the defenseʼs theory is self-defense. A series of fact-based concession questions,if supported byother facts in this case, could proceed as follows:
You drove to victimʼ
s apartment
You were there at 9:00 p.m.
You were with the victim
You owed the victim money
You had an argument with the victim
You had a knife
This knife (showing the exhibit)
You stabbed victim in the chest
You left victim in his apartment
The victim was bleeding
The victim was moaning
You didnʼ
t call 911
You didnʼ
t contact neighbors
You went to your car
You put the keys in the ignition
You put into gearYou drove away
You didnʼ
t stop along the way
You threw the knife away
You drove to your apartment

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RESOURCE MATERIAL SERIES No. 92
You entered it
You closed and locked door
You didnʼ
t call the police
You didnʼ
t call the ambulance
You went to bed
At this point, the prosecutor could stop this line of questioning. It is critical to resist the urge to
ask the hostile witness to draw your conclusion ― “
So, you fled to avoid getting caught?” This
question would only lead to the defendant coming up with their own explanation and would undermine
the facts the prosecutor developed through careful concession-based questioning.
Once logical areas of concession-based cross examination are exhausted,it may be time to turn toa more confrontational approach but still focusing on using preplanned lines of impeaching thedefendant or the defense witness. Such impeachment can come in many forms ― by prior inconsistentstatement,by prior omission,by other bad acts,by bias and interest,by motive,by ability,by lack ofperception or by memory. Concession-based cross examination can even effectively be used in these
impeachment categories of cross examination in appropriate cases.
For example, a defense alibi witness provides a statement in court that is inconsistent with astatement that the witness provided earlier to the investigator. There is an effective three-step process
to show the original statement was more truthful, and demonstrate that the new story has been
fabricated to save the defendantʼ
s skin.
The first step is to confirm the new statement, locking the alibi witness into this new version.
You testified a moment ago on direct examination that you were with the defendant during the nightof the burglary, correct?
The second step is to credit the prior statement to demonstrate the witnessʼfirst version of the facts
was more likely true by asking the defense witness a series of short questions. Such question could
be as follows:
Back on July 1, you were interviewed by the police correct?
And that was at your home?
And they asked you a series of questions?
And you provided them with answers?
You understood that you were talking to the police?
This was a criminal matter, it was important to be truthful to the police, you would agree?
When they asked you that question, the burglary in question had taken place only a few days
earlier?
Then comes the final step, to confront the witness with the prior inconsistent statement (whichshould be ready and marked). The confrontation should be done with the precise words used by thewitness on the prior occasion as much as possible.
You were asked by the police where you were on the night of the burglary,and you replied that “I
was in my house with my girlfriend the whole time,”isnʼ
t that correct?

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155TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTSʼPAPERS
Having confronted the witness with the prior inconsistent statement,it is generally then a bad idea
to ask why their story has changed or to explain the contradiction. To do so,would blunt the impactof the approach;let the defense attorney try to address the contradiction,you now move on to anothercontradiction and another contradiction,ifpossible. Perhaps ifthere are no other significant contradictions,time to move on to the bias of the alibi witness,for example,that they are good friends with thedefendant:
Known each other for ten years
Play basketball together every week
Live close to each otherWent to school together
Visited defendant in jailWould you agree heʼs one of your best friends
You try to be a good friend to him
You donʼt want any harm to come to him
You donʼt want to see him go to prison
M ore effective to build up facts then to start with the opinion question (“youʼ
re good friends withthe defendant, correct?”)that will lead to a long and not very helpful response by the witness.
Given that defense witnesses are likely to be hostile, the prosecutor has to be prepared for nonresponsive answers. It is advisable to have an escalating strategyto address it. First,repeat the question,
word for word if possible. If the witness still does not respond to the question, ask if witness
understands the question. Then,ask the witness if something is preventing him or her from answering
the question. If there is still no answer, consider asking the court to order the witness to answer thequestion. If the defense witness is still non-responsive,the prosecutor can ignore the witness and,whenstops talking, say, “Oh, are you finished? Now please answer my question.”
As with every witness, preparation is essential. If a fellow prosecutor can play the role of the
defendant and act in a uncooperative and hostile manner,the prosecutor can practice asking questions
and determine what concessions they can reasonable obtain, what strategies actually work, anddetermine how and when to end the cross examination on a strong note.
Both direct and cross examination require planning and practice. Prosecutors stand to gain when
they consider trial techniques developed and tested in other jurisdictions and properly adapt them tothe context of their own courtroom. While rules are different,the common goal of effective advocacy
is true everywhere ― to add value to the case by being persuasive.

43

PARTICIPANTSʼPAPERSINVESTIGATION OF CRIM INAL OFFENCES IN BHUTAN
Kinlay Wangdi

I. INTRODUCTION
The Royal Bhutan Police is the main law enforcement agency in Bhutan for the investigation of
criminal offences in Bhutan.The responsibilities of the Royal Bhutan Police are to prevent and detect
crimes, to maintain law and order and to prosecute offences. As per section 161 of the Civil andCriminal Procedure Code of Bhutan, it shall be the duty of every police personnel to promptly detectand apprehend all persons, when sufficient grounds exist to bring them to justice. Section 41 of theRoyal Bhutan Police Act provides prevention, detection and investigation of criminal offences as themain responsibilities of the Royal Bhutan Police. Crime in Bhutan consists of cognizable offences asprovided by section 165 of the Civil and Criminal Procedure Code of Bhutan, the offences under the
Penal Code of Bhutan, the criminal offences under the various minor Acts of Bhutan and any otheroffences which are criminal in nature. Investigation by a competent police officer is a fact-finding
operation authorized by law from its inception till it concludes by placing the evidence and material
collected before a court.The investigator discharges a statutory function and,therefore,must exercise
his best judgement and take steps and actions that are correct, ethically and legally. Investigation
includes all the proceedings for the collection of evidence conducted by a police officer or by any
person. It primarily consists of ascertainment of facts and circumstances of the case after the Police
Crime Report (PCR) is registered. As per section 161 of the Civil and Criminal Procedure Code of
Bhutan,the police shall lodge the criminal complaint in writing,if the complaint has not already been
submitted in writing and make efforts to verifythe accuracyofthe complaint expeditiouslybycarryingout preliminary investigation.The police or the person making the statement and the person providing
any record or evidence shall sign all statements and records emanating from the investigation. The
police shall also make a record of the description of the suspect as first given to them by potential
witnesses. It is mandatory for the Investigating Officer to take a statement of a material witnessquestioned during the course of investigation. As per section 90 of the Royal Bhutan Police Act, Inorder to establish a fair and efficient enquiry and investigating system,the Police department shall be
provided with adequate modern facilities and scientific aids to investigation.

II. INVESTIGATION PROCEDURE IN BHUTAN
A. Investigation Steps
The investigation steps in Bhutan shall encompass proceeding to the spot/scene of crime;ascertaining all the facts and circumstances ofthe case;discoveryand arrest ofthe suspected offender;collectionof evidence relating to the commission of the offence, which may consist of examination of various
persons (including the suspect)and the search of places or seizure of things considered necessary forthe investigation and to be produced at the trail;and formation of the opinion as to whether,based on
the materials collected, there is a case to place the accused before a Court for trial and, if so, taking
the necessary steps for the same by making a charge sheet under section 187 of the CCPC and section
105 of the RBP Act. As per section 91 of the RBP Act, any Police officer investigating a crime shallconduct such investigation based on the minimum requirements laid down as hereunder:(a)The investigations shall be based upon reasonable suspicion of an actual or possible commissionof an offence consequent to the filing of Police Crime Report (PCR)by an affected person or by
any person on behalf of the aggrieved person;

Legal Officer, Legal Division, Crime and Operations Branch, Royal Bhutan Police, Bhutan.

44

155TH INTERNATIONAL TRAINING COURSEPARTICIPANTSʼPAPERS(b)The investigator shall inform the accused of the offence he is being charged with and to prepare
his defense either in person or through Jabmi (lawyer);(c)The investigations shall be objective and fair.The investigator shall provide special attention to
the interest of the accused, especially if the accused is a vulnerable person;(d)The guidelines for the proper conduct and integrity of interviews shall be established andsystematic records of interviews shall be maintained;(e)The investigator shall safeguard the rights of the suspect including the right to remain silent;(f) The investigator shall submit the result of the investigation in the form of a charge sheet or final
report to a court of law;(g)The investigating officer shall protect and collect any sample which shall have evidentiaryvalue
in the investigation of a case;(h)The investigation report must be submitted in accordance with the prescribed format;(i) All the statements of the suspects/accused/witnesses must be recorded in writing as required
under the Evidence Act of Bhutan;(j) In the event a suspect is required to be detained for more than 24 hours,the investigating officer
must submit a request for remand to a court of law under the Civil and Criminal Procedure Codeof Bhutan, for 49 days;(k)Obtain further remand under of the Civil and Criminal Procedure Code of Bhutan,after 49 days
till a maximum period of 108 days in cases of heinous offences;and(l) An investigating officer must send a request for arrest or search warrant to a court of law for
all arrests and searches to be made in accordance with the provisions under the Civil andCriminal Procedure Code of Bhutan.
As per section 101 of the RBPSRR,investigation of a case shall be conducted based on the minimum
requirement laid down under the Royal Bhutan Police Act, 2009. It involves:(a)Recording of the PCR, GD and case diary;(b)Proceeding to the crime scene with an investigation kit box and investigation team;(c)Ascertaining all the facts and circumstances of the case;(d)Taking photographs and drawing sketches of the scene of the crime;(e)Search, seizure, collection of evidence and examination of concerned persons;(f) Registering of the case, interrogation, recording of statements and charge-sheeting of the caseto the court;(g)Dismissal of case if there is no prima facie case after preliminary investigation;and(h)Releasing of the suspect by obtaining a release order from the court if there is no substantive
evidence.
B. General Principles of Investigation
In Bhutan, it is mandatory for the investigation officers to follow certain general principles ofInvestigation as provided by the CCPC and the RBP Act.A successful investigation is one in which a

45

RESOURCE MATERIAL SERIES No. 92
logical sequence is followed, all physical evidence is legally obtained, and all witnesses/suspects are
efficiently questioned/interrogated. As per section 102 of the RBPSRR, the general principles ofinvestigation are:(a)Investigation should be started without any pre-conceived notion or bias;(b)Investigation should be started without any delay;(c)Provide emergency assistance if required;(d)Cordon the scene of the crime to protect the evidence;(e)M ake a preliminary survey of the scene of the crime and seek technical or expert help as may
be necessary;(f) Secure atleast two independent witnesses;(g)Photography and videography and maintenance of a case diary;(h)Take note of all witnesses with their details;(i) M ake a systematic search of the scene of crime for evidence and clues;(j) Carefully handle,collect,pack and label the physical evidence as per the seizure list in presenceof witnesses for further examination by experts;(k)Study the modus operandi;(l) Reconstruct the crime scene and find out the motive for the crime;(m)Identify the victim if not done;(n)Formulate theories based on available information as to the commission of the offence andwhereabouts of offenders;and(o)Follow any other guidelines and procedures as provided by section 161 of the Civil and Criminal
Procedure Code (CCPC)of Bhutan and chapter 14 of the Royal Bhutan Police Act, 2009.
C. Purpose of Investigation and Qualities of a Good Investigator
The purpose of investigation in Bhutan is to find out whether the allegation made out in the Police
Crime Report (PCR)is true or not:if true,who are the offenders,i.e.identify and locate the perpetrator
and solve the crime;if not true,why it is not true.The result of investigation,ifsuccessful,shall answer
the following questions:did a crime as described by a code or statute occur;where and what time anddate, did the crime occur;who is the victim;who are the individuals or organizations involved in theplanning, execution and after effects of the crime; were there any witnesses to the crime; is there
evidence to prove the crime?A good investigating officer shall have the following qualities:
Sincerity, honesty, integrity and loyal;
Sound knowledge of the law, legal procedures and police practices;
Perseverance, zeal, tact and application of knowledge, and objectivity and freedom frompreconceived notions;
Agreeable manners with firmness in dealings;
Good power of observation, analysis, deduction and an eye for details;

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155TH INTERNATIONAL TRAINING COURSEPARTICIPANTSʼPAPERS
Be a good judge of human psychology;
Hard working and determined;
Strong will and determination to achieve desired objectives;
Have informers and sources from among the criminals of the area and should utilize themfrequently for detecting the crime;Proficiency in writing reports;
Strong commonsense;
Extraordinary capacity for observation, recollection and attention to details;
Well-disciplined and time conscious;
A fair knowledge about elementary principles and application of science and technology;
Logical and having a sixth sense with superior reasoning ability;
A good investigator is imaginative, creative, patient and persistent;
An investigator should be capable of differentiating between fact and opinion, determining
cause and effect relationships, determining the accuracy and completeness of information
presented recognizing the logical fallacies and faulty reasoning, developing inferential skills
through deductive and inductive reasoning, superior reasoning ability and critical thinking;Should be physically fit, have knowledge and ability to use scientific aids, should have theability to collect and analyse information;
Should be able to maintaining good sources and contacts and should have good publicrelations skills;
Should have good communication skills,good command and control,and should be disciplined.
D. M ulti-Disciplinary Approach to Investigation
For any investigation to be successful,the involvement of the following agencies is very important:
Fellow police officers within the jurisdiction and also outside the jurisdiction;
Crime Record Bureau;
Intelligence;
Informers and sources;
Forensic science laboratories;
M edical and forensic experts;
Prosecutors;
Technical experts;
Judges (Drangpons).

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RESOURCE MATERIAL SERIES No. 92

III. EFFECTIVE COLLECTION OF EVIDENCE
A. Types of Evidence and Its Collection
As per section 84 of the Civil and Criminal Procedure Code of Bhutan, the Court shall grant theopportunity to present evidence including the right to subpoena witnesses and to compel the productionof physical evidence on the defendantʼ
s behalf. Evidence may include physical exhibits,the testimonyof witnesses or expert opinion in accordance with this Code. As per section 3 of the Evidence Act of
Bhutan, evidence means all types of proof or probative matter presented and permitted by the Courtat a legal proceeding by the act of the parties or required by the Court on its own through the medium
of witnesses, documents inclusive of electronic records and physical evidence in relation to mattersunder inquiry.
1. Types of Evidence
Section 4 of the Evidence Act of Bhutan provides that evidence shall be categorized into thefollowing types:(a)Testimonial;(b)Documentary including electronic records;(c)Physical;and(d)Expert opinions;(e)Section 5 of the Evidence Act of Bhutan provides that evidence may be:(i) Direct;or(ii) Circumstantial or indirect.
2. Collection of Physical Evidence
As per section 34 of the Evidence Act of Bhutan,where there is physical evidence produced before
the Court, other evidence shall not be admitted unless there is substantive and reasonable ground forsuch physical evidence to be untrue and irrelevant. It is essential for every Investigating Officer toknow how to look for clues at the scene,how to seize,handle,label and pack them,where to send themfor examination by the concerned authority/expert and how to preserve their identity throughout.The
investigating officer should handle movable articles carefully so that no clue is lost or damaged or its
relative position disturbed e.g.:fingerprints, footprints, saliva, remains, blood stains on weapons,andhair adhering to blunt instruments. Due care must also be taken not to obliterate any clues likefingerprints by careless handling of fixed objects,like polished walls,doors,windows and their handles
and fastenings.The Investigating Officer should,if possible,use a pair of rubber gloves when handling
articles. Steps in collection of physical evidence include seizure in presence of two disinterested andrespectable local witnesses, labeling, packing and forwarding. Usually for detection and collection of
trace evidence and evidence like fingerprints,footprints,etc.,expert help is requisitioned.The servicesof M obile Forensic Labs will be very helpful in this regard. While selecting the detection, collection,and preservation methods and the processing sequence,consider the circumstances of the case,ambientconditions, the discriminatory power of the different techniques, and the need to preserve or collectother types of evidence. It is important to record the techniques used for detection, collection, andpreservation of the evidentiary items and the location from which they are removed.Methods used for
detecting trace evidence include but are not limited to general visual searches;visual searches assistedby different types of illumination,such as oblique lighting and alternate light sources (UV,laser,highintensity);and visual searches assisted by magnification. Trace evidence recovery or collection techniques used should be the most direct and least intrusive technique. Collection techniques include
picking, lifting, scraping, vacuum sweeping, combing, and clipping. The Forensic Science Unit willusually provide the following services to the Investigating Officer:
Fingerprint lifting and comparison;48

155TH INTERNATIONAL TRAINING COURSEPARTICIPANTSʼPAPERS
Collection and examination of biological materials;
Examination of questioned documents;
Toxicological services;
Examination of firearms and ballistics;
Lie detection;
Voice-test analysis;
Audio/Video-tape analysis;
Analysis of digital evidence;
DNA profiling;
Analysis of hair, fiber and other materials;
Comparison of paint, wood and glass;Comparison of tool marks, recovery of erased writings, etc.;
Cyber-crime investigation.
3. Oral Evidence and Interrogation of Suspects
Chapter 5 of the Evidence Act of Bhutan provides for oral evidence. Oral evidence in a criminal
offence may be obtained from the victim,complainant,witnesses and suspects/accused.Interrogationis the art of systematic questioning of a person who is suspected to have committed a crime or to havebeen involved in a crime and of making the suspect reveal everything.It is an interaction of two minds― the mind of the interrogator and the mind of the suspect.This goes on till one-mind triumphs over
the other mind. It aims at not only establishing guilt but also at establishing innocence. The primaryobject of interrogation is not, as is often supposed, to obtain a confession from a suspect. It is rather
to obtain truthful information.The interrogator should be vigilant about false confessions,made underduress which,if swallowed,would put the interrogator to shame and in jeopardy.As per section 184.2of the Civil and Procedure Code of Bhutan,any statement made to police by the suspect,to retain its
evidentiary value in courts, must be voluntary in nature, include a statement to that effect and carry
the signature of the suspect.Section 184.3 of the CCPC provides that the interrogation of a suspect shallbe permitted provided the person charged has been informed of his/her right to consult a Jabmi before
any such interrogation.
4. Questioning of Witnesses
Witnesses may be interested witnesses, disinterested witnesses, nervous, unwilling, lying, hostile,and child witnesses.In Bhutan,a police officer is empowered to require the attendance of the witness
while making an investigation within the limits of his police station or adjoining station. The person
who is acquainted with facts and circumstances of the case is bound to answer all questions truly,andthe police officer may reduce to writing any statement made to him.Any person is bound by the Civil
and Criminal Procedure Code of Bhutan to assist any police officer in investigation of a case, and if
such person fails to assist,he may be liable for failure to assist lawful authority as per the Penal Codeof Bhutan.The reasons for the reluctance of a witness to give his statement maybe prejudices,fear andself preservation, anger, pressure against talking, no trust in police, fear of being implicated in thecrime, time,energy and money,and harassment.While questioning a witness,an investigating officer
shall bear the following in mind:
Interrogate the witness soon after the commission of the offence;

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RESOURCE MATERIAL SERIES No. 92
Examine as much as possible at the scene of the crime;
Do not allow witnesses to discuss the case with each other;
Question witnesses individually;
Examine the most trustworthy first;
Be kind and polite to the witnesses;
Ask one question at a time;
Do not ask specific questions;
Do not ask leading question;
Avoid questions with yes or no answers;
Listen to answers, but at the same time anticipate your next question;
Watch your body language and tone of your voice;
Never threaten, frighten, or injure a witness to give information;
M ethod of questioning should vary according to witnessʼs age, sex, religion, political views,
social status, education, etc.;
Start the conversation on neutral territory;
React to what you hear;
As you move in to difficult territory slow down;Donʼt rush to fill silence;
Pose the toughest questions simply and directly;
Aid the witnessʼs memory;
Cross checking should be done carefully;
Do not get annoyed with irrelevant details;
All statements need not be recorded;
Statements should be recorded in the language of the witness;
Statements form part of the case diary;andA copy has to be supplied to the witness/suspect/accused.

IV. CONCLUSION
Bhutan is a peaceful, small developing country with a mere population of around seven hundred
thousand people. Therefore, the crime rate in Bhutan is very low compared to other neighbouring
countries like India and China. Nevertheless, various crimes are being committed every year aroundthe country and the highest rate of crime is committed in the capital city, Thimphu. At present, the50

155TH INTERNATIONAL TRAINING COURSEPARTICIPANTSʼPAPERS
Royal Bhutan Police, comprising around 4,000 personnel, is entrusted with the responsibility of
preventing,detecting,investigating crime and maintaining law and order,and protecting and safeguarding the lives and property of the people.The Royal Bhutan Police is trying its level best to fulfill its
responsibility in the most efficient, effective and professional manner with more emphasis on prevention and investigation of crime. To date, the Royal Bhutan Police has been successful in preventing,detecting and investigating many crimes. However, since Bhutan is a developing country, the lack ofmodern and the latest scientific aids,equipment and techniques for investigation has been a deterrence
to the Bhutanese police force in its quest of providing the best policing service to the people.The lackof a full-fledged forensic laboratory in the country and dependence on other countries for complex
forensic analysis has also added to the inefficiency of the police investigation.Yet,the Royal Government of Bhutan is taking a lot of initiative to provide its police force with the best facilities andpolicing equipment which is most suitable and required in this modern era. Hence, with such noble
initiative and encouragement from the Government, the hard work and professionalism of the Royal
Bhutan Police,the policing service in Bhutan may certainly become efficient and effective,which will
ultimately lead to minimization of crime in society and the prevalence of peace, happiness, harmonyand security in Bhutan.

51

CRIM INAL PROCEDURE IN BHUTAN
Kinlay Wangdi , Sonam Tashi

and Tandin Dorji

I. INVESTIGATION
The main organization responsible for criminal investigation in Bhutan is the Royal Bhutan Police(RBP) which consists of twelve field divisions covering the twenty districts of Bhutan. Each field
division is headed by a Senior Superintendent/Superintendent of Police and comprises various police
stations under it as per the area of jurisdiction.Each police station is headed by an Officer Commanding and consists of other investigation officers, non-commissioned officers and constables. A police
station is responsible for investigation of criminal offences committed within its jurisdiction. Every
investigation is directly supervised by the respective Superintendent of Police in case of heinous
offences and the Officer Commanding in other cases, and an investigation team shall consist of aminimum of eight personnel.1 After thorough investigation of a case,the investigation report,consisting of the details of the case,brief facts,findings and charges against the offender,is prepared by theinvestigation officer.
In cases of misdemeanor offences (1 year to 3 years imprisonment) and above, the investigation
report is handed over to the Office of the Attorney General(OAG)for the prosecution of the case.After
receipt of the investigation report from the police,the case is deliberated by the Office of the Attorney
General and a prosecutor for the prosecution of the case is assigned. The OAG frames the charges
based on the investigation report of the police and shall coordinate with the concerned investigation
officer for any assistance. After the charges are framed, the case is forwarded to the jurisdictional
court of law for trial by the OAG.However,the arrest and detention of the suspect,any searches andseizures, remand, extension of remand, production of the suspect to the court whenever required,custody of the evidence, etc., shall be the responsibility of the police in coordination with the OAG
prosecutor.The OAG as the prosecutor on behalf of the state has the right to question and investigate
on the case handed over to them by the police for prosecution but they cannot command the RBP
directly in criminal investigation. Normally, the OAG bases its action on the investigation reportsubmitted to them by the police, and any doubts or ambiguity in the investigation is cleared by thepolice investigation officer.The RBP provides as much assistance and support as possible to the OAG
for the smooth prosecution of a criminal case.In case the OAG,after deliberation,decides to return acase to the RBP without forwarding to the court, it may do so in writing stating the reasons for the
non-acceptance.In such cases,the RBP shall respect the decision of the OAG if it is satisfied with thereasons for non-acceptance of the case. However, if the reasons stated by the OAG are not verysatisfactory,the legal division of the RBP shall seek clarity from the Attorney General of Bhutan andaccordingly apprise the Chief of Police.
On the other hand,cases ofpettymisdemeanor offences(1 month to 1 year imprisonment)and below,
are prosecuted by the police by the police prosecution units of respective police stations around thecountry.In such cases,the investigation officer prepares the investigation report including the charges
and forwards the case to the court for trial. Such cases are prosecuted by the police prosecutors.
The arrest and pre-indictment detention procedure shall be as per the provisions of the Civil andLegal Officer, Legal Division, Crime and Operations Branch, Royal Bhutan Police, Bhutan.
Officer Commanding, Thimphu Police Station, Division XI, Royal Bhutan Police, Bhutan.
Officer Commanding, Nanglam Police Station, Division VIII, Royal Bhutan Police, Bhutan.
1One investigation officer, two first responders, two forensic experts including a photographer, one crime clerk, one
prosecution unit, and the CCIS unit.

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155TH INTERNATIONAL TRAINING COURSEPARTICIPANTSʼPAPERS
Criminal Procedure Code of Bhutan (CCPCB)and the Royal Bhutan Police Act (RBPA).As per Article
7 (Fundamental rights)of the Constitution of Bhutan, a person shall not be subjected to arbitrary or
unlawful interference with his or her privacy,family,home or correspondence nor to unlawful attacks
on the personʼ
s honour and reputation, and a person shall not be subjected to arbitrary arrest or
detention.As per the CCPCB,no person shall be subjected to arrest or detention,except in accordancewith this Code and a person arrested shall not be subjected to more restraint than is reasonably
necessary to prevent his/her escape.
The CCPCB also provides that a person shall not be subjected to torture/cruelty/inhumane/degrading treatment/punishment, and a person suspected of carrying out such activity shall be subjected tocriminal prosecution. A statement/pleading/testimony given under such circumstances shall be inadmissible.As per section 163 of the CCPCB,a Court is empowered to issue a warrant of arrest uponrequest by the police for criminal offences in accordance with this Code or other laws.The Court uponreceipt of the crime report may direct the police to carry out additional investigation if reasonablecause of guilt has not been satisfactorily established.The warrant shall empower the police to arresta person in a lawful manner.Section 164 of the CCPCB provides that the warrant of arrest shall state:(a)the name and address of the accused;(b)the crime with which he/she is charged;(c)the name of theIssuing Court;and (d)bear the seal of the Court and the warrant shall remain valid until it is executedor cancelled by the Issuing Court. Arrest warrants may be executed within Bhutan, beyond thejurisdictional boundary of the Issuing Court. If a warrant of arrest is to be enforced outside theterritorial jurisdiction of the Issuing Court,the police shall:(a)obtain an endorsement from the Court
having territorial jurisdiction;or (b)upon arrest, inform the Court having territorial jurisdiction. Noline of appeal or judicial review shall vest in the Receiving Court with regard to any warrant from an
Issuing Court,and the right to assert a motion for improper arrest or improper issuance of a warrant
shall vest directly with the suspect and his/her jabmi (lawyer).The section also provides that a warrant
may be served by the intervention of a foreign state,where the suspect to be served is outside Bhutan
and in a country with which the right of extradition has been established by treaty, convention ormutual agreement.
Section 165 of the CCPCB provides that a police officer may arrest without a warrant in a public
place if any person is reasonably believed to be:(a)abusing or physically assaulting another person;(b) attempting to forcibly dishonour a female; (c) suspected of dealing in illegal business; (d) inpossession of illegal arms/ammunition,etc.;(e)using false weights and measures;(f)dealing in harmful
drugs;(g)causing harm to public property such as telephone lines,lamp posts,roads,water pipes,etc.
(h)wanted criminals;(i)a deserter from the uniformed services;(j)fishing and hunting on prohibiteddays and months under the Laws of Bhutan;(k)a receiver of stolen property;(l)obstructing police inthe execution of lawful duties; (m) willfully and indecently exposing oneʼs person or disgracing orcommitting nuisance,or exposing a contagious disease to the general public or contaminating drinking
water;or (n) neglecting to fence in or duly protect any dangerous tank or other dangerous place or
structure. The power of the arresting Police officer to enter a private dwelling to effect an arrest
without warrant is limited to instances of immediate necessity or other exigent circumstances.As per
section 167 of the CCPCB, a citizen may arrest or cause to be arrested any person whom he/shereasonably believes:(a)has committed or intends to commit a criminal offence;or (b)is wanted by thelaw for the commission of an offence.A person so arrested shall be handed over to the police or in theabsence of police, relevant public official without delay.
As per section 184 ofthe CCPCB,immediatelyfollowing arrest,an arrested person shall be informedof the charge for which he/she is being arrested and subsequent to arrest, the police shall makereasonable attempts to inform the parent,guardian or member of the family of the person so arrested
and detained as soon as possible.As per section 186 of the CCPCB,the Court may order an accused tobe remanded to police/judicial custody if there exists reasonable cause that he/she has perpetrated acrime.As per section 188 of the CCPCB,any person arrested and detained with/without warrant shallbe produced before a Court within twenty-four hours of the arrest exclusive of the time necessary forthe journey from the place of arrest and the Government holidays. As per the RBPA, a police officer
shall have power to arrest a person upon obtaining warrant from a competent court and subject to the
Civil and Criminal Procedure Code of Bhutan, a police officer may, without warrant, arrest a person
for an offence if the Police officer believes on reasonable grounds that the person has just committed

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or is committing the offence or is wanted for any criminal offence.
Another agency which investigates criminal offences is the Anti Corruption Commission (ACC),
which is governed by the Anti-Corruption Act (ACA) of Bhutan. The ACC has all the powers ofinvestigation of corruption offences and is supported by other law enforcement agencies such as the
RBP. However, the ACC has the power to investigate only corruption offences provided by the ACA.
After completion of investigation of a corruption offence, the ACC hands over the case to the Officeof the Attorney General for prosecution.
Investigatorsʼinterviews of suspects are sometimes recorded on video and produced before the courtin case the suspect retracts his statement.Such video recordings are produced at the court to show thatthe statement of the suspect was recorded as per the legal requirements and that no unfair or illegalmeans were used to record the statement. The recording is also used to refresh the memory of thesuspect.However,to qualify as evidence in a court of law,the video recording should be supported andcorroborated by other evidence proving the guilt of the suspect.
A suspectʼs attorney may attend an interview conducted by the investigative organizations, especially in case of minor suspects whereby it is mandatory. However, if the investigative organization
justifies that the presence of the suspectʼs attorney during the interview is likely to hamper theinvestigation,the suspectʼs attorney can be excluded from the interview after justifying and providing
the reasoning in writing.
After the interview,the oral statement of the suspect is converted into writing either by the suspects
themselves or by the investigator if the suspect is illiterate.The statement is recorded on a statement
form, which is signed by the suspect and a witness. Therefore, since the written statement is either
recorded by the suspect themselves or by an investigator as told by the suspect,the suspect shall havethe opportunity to confirm and correct mistakes by countersigning or by recording new statements.
The procedure for searches and seizures is provided by the CCPCB and the RBPA.As per section
168 of the CCPCB, a Court may issue a search warrant to the police to conduct a search for criminal
evidence.A search warrant shall only be issued upon showing probable cause of a criminal offence to
the Court.The police requesting a search warrant shall present to the Court:(a)the name ofthe accused
and address;(b) the suspected criminal offence;(c) the place of search;and (d) the facts establishingprobable cause for the search.As per section 169 of the CCPCB,all search warrants shall be executed
within twenty-one days of their issuance,unless the Issuing Court has granted an extension.Section 170
of the CCPCB provides that a search warrant maybe executed within Bhutan,beyond the jurisdictionalboundary of the Issuing Court.If a search warrant is to be enforced outside the territorial jurisdictionof the Issuing Court, the police shall: (a) obtain an endorsement from the Court having territorial
jurisdiction;or (b)upon search,inform the Court having territorial jurisdiction.In accordance with thisCode,the Receiving Court shall ensure that the search warrant from the Issuing Court is enforced.Asper section 171 of the CCPCB,a search shall be made in the presence of Chimi/Gup/Chipon/memberof Dzongkhag and Geog Yargye Tshokchung/witness. A police officer executing the warrant shall:(a)announce that he/she is a police officer;and (b) show a search warrant. Where there is a danger ofdestruction of evidence and/or the distances from the Court to the places to be searched are substantial,
police on the scene may conduct the search without having a search warrant.As per section 176 of the
CCPCB, a police officer has, upon arrest of a suspect without a warrant, the right to search the area
under the suspectʼs immediate control/possession.A police officer making any arrest shall seize fromthe person arrested any weapon, contraband or any other evidence of an offence carried on his/her
person.As per section 180 of the CCPCB,a police officer may seize any property,which may be allegedor suspected to have been stolen or which may be found under circumstances, which create suspicionof the commission of an offence.The police shall prepare a list of all the articles taken into possession
at the time of the search, and the copy shall be given to the owner or the person in occupation of thepremise, as the case may be. The list shall be signed and dated by the officer making the search, theowner of the premise or person in occupation of the premise and by a witness present at the time ofsearch. When an article discovered is of such a nature that its immediate destruction is necessary for
public safety, it shall be lawful for the police officer making the search to destroy or have the same
destroyed. A police officer making a search shall turn over all evidence to the police station with54

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labeling where it shall be maintained until required by the Court with jurisdiction over the case.If thepolice, prosecutor or the Court deems that a specific item is irrelevant to a case, the item shall be
returned to the owner without delay. As per the RBPA, every police officer shall have the power toseize or search a person or a place upon obtaining a warrant from a Court of law.However,any police
officer may search any place, dwelling, store, conveyance or any person, without warrant if he has
sufficient reasons or grounds to believe that such a search is indispensable for the successful detectionof a crime, subject to the CCPCB.

II. TRIAL
After thorough investigation of a case,the suspect is charged with the appropriate provisions of thelaw and the investigation report is forwarded to the court for prosecution either by the police in casesof petty misdemeanor and below,or by the Office of the Attorney General in cases of misdemeanor andabove.
Before the registration of the case with the Registry division of the Court,the Court shall conduct
miscellaneous hearings expeditiously. The Chief Justice in High Court, Chief Judge/Judge in the
Dzongkhag (District) Court and the Judge in Dungkhag (Sub-district) Court hear the miscellaneous
hearing. Hearings are conducted strictly in accordance with the CCPCB.Each Bench clerk maintains
a Bench book.The Bench book enumerates the order as to how the hearing should proceed.During themiscellaneous hearing, the court shall make an initial determination whether sufficient legal cause
exists to admit the case for proceedings according to the law.The Court shall give written reasons if
the petition of a party is dismissed.The hearing is always conducted within the prescribed period andin accordance with the CCPCB.After the miscellaneous hearing,accordingly,the petition if registeredby the registry is distributed to the Benches and a bench clerk is identified. After that, a preliminary
hearing is conducted within ten days of registration in criminal cases and one hundred and eight daysof registration in civil cases.The purpose of the preliminary hearing is to enable the Court to entertain
challenges to pleadings based on cause, procedure and jurisdiction and clarify substantive or procedural legal issues. Furthermore, the Court shall conduct the judicial process in accordance with the
CCPCB as follows:
Registry of a complaint ＝＞Miscellaneous Hearing ＝＞ Preliminary Hearing ＝＞Production
before Judge ＝＞ Show Cause ＝＞ Opening Statement ＝＞ Defence Reply ＝＞ Rebuttal ＝＞
Evidence ＝＞ Independent Testimony ＝＞Exhibit ＝＞ Cross Examinations ＝＞Judicial Investigation＝＞Closing Statement ＝＞Judgement.
There is a system of plea bargaining in Bhutan.As per section 197 of the CCPCB,with agreement
to provide information to the prosecution and in lieu of a full criminal trial,a suspect may choose toplead guilty to an offence lesser than the offence charged and be sentenced accordingly.The prosecution may consider a plea bargain in exchange for evidence deemed critical for prosecution against
other criminal suspects.Discretion as to whether or not to consider a plea bargain rests fully with theprosecution which shall, among other factors, consider: (a)the nature of the offence;(b) the circumstances under which the crime was committed;(c)the personʼs prior criminal record and status;and (d)whether it is voluntary in nature. Before confirming a plea bargain, the prosecution shall determine
whether the defendant is mentally competent and is a child in conflict with law,and if so,whether thechild is represented by parent/member of a family/legal guardian/jabmi, and understands: (a) thenature of the charges emanating from the plea bargain;(b) the mandatory minimum and maximum
penalties provided by law,if any;(c)that a plea bargain may be made as well during the course of thecriminal trial;and (d)that if the prosecution accepts the plea bargain, the defendant waives his/herright to a trial.
All the evidence and documents which are relevant to the case and are the facts in issue are referredto the judge after indictment.However,the evidence and documents which are not relevant to the caseare filtered by the prosecutor.
The confession of a suspect is admissible in a court of law if it was taken as per the legal
requirements and if it is corroborated by other evidences. As per section 84 of the Evidence Act of55

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Bhutan (EAB),any statement made at any time by a person charged with a crime stating or suggestingthat the person committed the crime shall be the confession of the person.Section 85 of the EAB statesthat the Court shall not consider any confession to be valid unless the confession is proven to be:(a)made voluntarily;(b)given independently;and (c) made without duress, coercion, undue influence or
inducement. As per section 86 of the EAB, if the confession is made to the police officer or any otherpolice official, it shall not be valid unless the confession is proven to be made after the police officer
or the police official had:(a)warned the person that anything he says can be used against him in a legal
proceeding;(b)notified that he has a right to a jabmi (lawyer);and (c)informed that,ifhe cannot afforda jabmi, the Government will provide him with a jabmi. Section 88 of the EAB provides that a
confession made to a police officer or other police official shall not be admissible without corroborating evidence of the validity of the confession. When a person confesses to a police officer, the police
officer must follow the procedure set forth in this Act.As per section 91 of the EAB,a confession madeby any person is irrelevant and inadmissible in a criminal proceeding if the making of the confession
appears to the Court to have been caused byany:(a)inducement;(b)threat;(c)promise;(d)intoxication;or (e)incompetence or incapability.As per section 92 of the EAB,the Court shall proceed further if aperson:(a)had confessed and then denies the confession;or (b)has made counter-charges.In instanceswhere a confession is retracted or denied,the person shall be:(a)examined in the Court;(b)warned of
the consequence of giving false information;(c)called upon to remember whether the person has or has
not consciously committed the offence;(d)liable to be charged of perjury;and (e)investigated for thedifference between the statement and words given or spoken before and after.
All the relevant evidence collected through investigation is permitted to be submitted to the court
to prove or disprove the case.However,evidence which is irrelevant or which is likely to mislead thecourt and waste time may not be permitted.As per Section 32 of the EAB,although relevant,evidence
may be excluded if:(a)its probative value is substantiallyoutweighed bythe danger ofunfair prejudice;(b)it could cause undue confusion of the issues;(c)it could mislead the Court;(d)it could cause undue
delay or a waste of time;or (e)it is cumulative.
The hearsay-rule in Bhutan is provided by the EAB.As per section 76 of the EAB,hearsay is an outof court statement made by a person who is not examined as a witness.As per section 77 of the EAB,
the following types oforal statements are not hearsay― when a prior statement bythe witness:(a)who
is giving oral evidence and the prior statement is inconsistent with the statement made while giving
oral evidence or was made in another legal proceeding or was written down in a document that isavailable for inspection by the Court and the parties; (b) giving oral evidence is consistent with astatement given by the witness while giving oral evidence and is offered to rebut an expressed or
implied charge against the witness of fabrication or improper influence or motive;or (c) giving oral
evidence is one of identification of a person made after seeing or perceiving the person.As per section
78 of the EAB, the following types of written statements are not hearsay: (a) records of regularly
conducted business activity made at or near the time of that activity by a person with knowledge ofthat activity and kept in the course of the regularly conducted business;(b)records maintained by theGovernment that are generally available to the public for inspection or sale;(c)entries in any public
or official book,register or record made by a public servant in the regular course of official duties;or(d) published maps, charts, and plans offered for public sale and made under the authority of theGovernment.Section 79 of the EAB provides that hearsay evidence is not admissible except with leaveof the Court in considering whether:(a)it would have been reasonable and practicable for the party bywhom the evidence was introduced to have produced the maker of the original statement as a witness;(b)the original statement was made contemporaneouslywith the occurrence or existence ofthe mattersstated;(c)the statement involves multiple hearsay;and (d)any person involved in the statement had
any motive to conceal or misrepresent the matters involved in the statement.
In Bhutan,during trial,victims and witnesses are protected whenever the court deems it necessary
for such protections. As per section 33 of the EAB, no personʼ
s identification shall be revealed if theperson is the source of evidence or a witness to the issue and the Court believes that his identificationneeds to be protected.As per section 198 of the RBPA,the Royal Bhutan Police shall provide physicalprotection to any state witness vulnerable to any real security threats to his life and property.Section
112 of the RBPA states that no Police person shall disclose any personal source of information under
any circumstance to any person or authority. As per section 68 of the EAB, the Court shall exercise

56155TH INTERNATIONAL TRAINING COURSEPARTICIPANTSʼPAPERS
reasonable control over the mode and order of questioning of witnesses and presenting evidence so as
to:(a) make the questioning and presentation effective for the ascertainment of the truth;(b) avoid
needless consumption of time;and (c)protect a witness from harassment or undue embarrassment.

III. CONCLUSION
The Bhutanese legal system is based on the adversarial (Accusatorial or the Common law system)
principle of procedure with some elements of the inquisitorial system (Continental or the Civil law
system). The courts take no sides and the judges are umpires of the litigants. The judges allow
uninterrupted hearing to the litigants or their jabmis (lawyers).They are given the opportunityto makepresentation to the Court and answer questions posed by the judges.The plaintiff and the defendant or
their jabmis can submit evidence to substantiate their legal contentions, and the courts decide cases
based on the facts and issues submitted by the parties. Thus, onus propandi or the burden to proof
beyond reasonable doubt lies on the prosecutor in a criminal case and on the plaintiff to prove his caseby a fair preponderance of the credible evidence in a civil action. The adversarial principle is wellenshrined in the Bardo Thoedrel (Book of the Dead ― Garun Puran),which is performed on the third
day of the Tshechu (religious festival in Bhutan)every year all over the country and dates back to the
8th century.
Thus, after thorough investigation of a criminal case by the jurisdictional investigative organizations, the investigation report of the case is forwarded to the prosecuting agency. The prosecuting
agency in turn forwards the case to the court of law having jurisdiction and after registration of thecase at the court of law, the trial procedure begins with the miscellaneous hearing. Thereafter, thejudicial process of preliminary hearing, production before judge, show cause, opening statement,
defence reply,rebuttal,evidence,independent testimony,exhibit,cross examinations,judicial investigation, and closing statement commences. The trial procedure ends with pronouncement of the judgement.

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THE EFFECTIVE COLLECTION AND UTILIZATION OF EVIDENCE IN
CRIMINAL CASES:CURRENT SITUATION AND CHALLENGES IN
BRAZIL
Andrey Borges de Mendonça

I. INTRODUCTION
The Brazilian Constitution of 19881 grants express rights to defendants, especially in the case ofarrest.This is due to its publication after a dictatorship period (1964-1984),when several cases ofabuses
and torture of detainees occurred.Paradoxically,the State use of violence against civilians in the 60s,
70s and 80s led later to the recognition of numerous fundamental guarantees. In fact, the dictatorial
experience still influences the Brazilian case law.
The 1941 Code of Criminal Procedure is the basic law regulating the criminal procedure in Brazil.
Published during a previous dictatorship period (1937-1945), the Code was originally inspired by thefascist Italian Code of Criminal Procedure (1930)2 and has been amended by several laws and constitutions.
The 1988 Constitution and the 1941 Code of Criminal Procedure discipline the collection andutilization of evidence in criminal cases,being complemented by other thematic and sparse rules.It is
important to mention that on August 2,2013 the new Organized Crime Act (Federal Statute n.12.850/
2013) was enacted. This law, besides providing the definition and punishment of organized crime,
regulates the special techniques of investigation to prevent and to investigate such crimes.

II. COLLECTION AND UTILIZATION OF EVIDENCE IN CRIMINAL CASES
A. Effective Investigation M ethods for Acquiring Statements
1. Interrogation of Suspects
In Brazil, the right to remain silent is a constitutional guarantee: “the arrested person shall be
informed of their rights, among which the right to remain silent”(1988 Constitution, Article 5.LXIII).
Therefore the interrogation of a suspect or a defendant is not preceded by any oath.M oreover,there
is no punishment even in the case of a proven lie. Despite the reference to the “arrested person”,it isunanimously accepted that any suspect or defendant,whether or not arrested,has the right to remainsilent.The Code of Criminal Procedure adds that silence may not be valued in prejudice of the defence;in other words, presumptions against suspects who refuse to testify are explicitly prohibited (Article
186).In synthesis,there are virtually no legal limits to the right to remain silent.In fact,if the suspect
or defendant prefers, they are allowed not to show up for questioning, according to the majority ofBrazilian judges. There is an exception created by the new Organized Crime Act (Federal Statuten. 12.850/2013),which says that the defendant who makes an agreement with the prosecutor must waive
his right to be silent and has to tell the truth.
In general the suspects are initially interrogated by the Police and, in practice, are usually notwarned of their right to remain silent at that time. Their statements, however, must be confirmed
before the judge,after the warning (that is truly made by some judges,whereas others limit themselves
Federal Prosecutor, Federal Public Prosecution Service of Brazil. The author would like to thank M arcela Harumi
Takahashi Pereira for her assistance in co-authoring this paper.
1Camara dos Deputados, http://bd.camara.gov.br/bd/bitstream/handle/bdcamara/1344/constituicao ingles 3ed.pdf?
sequence=7>accessed 29 June 2013 (English version).
2Presidencia da Republica, http://www.planalto.gov.br/ccivil 03/decreto-lei/del3689.htm>accessed 29 June 2013.At thesame website, there is a complete database of Brazilian rules.

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to issue the warning on paper,but do not really care to do it).If the confession before the Police is notconfirmed in the judicial phase, it will be given little or no value; if the judge forgets to alert thedefendant about their right to remain silent, an eventual confession will be void.In any case,there isno need of a warning at the moment of detention, but only at the beginning of the hearing.
While the assistance of a lawyer is mandatory during judicial interrogation, it depends upon thesuspectʼ
s choice in the case of interrogation by the Police. Unfortunately, those who cannot afford
paying will be given no assistance during the investigation by the Police and poor assistance during the
judicial process.
Enhanced techniques to obtain confessions,such as torture or the administration of truth serum,are
not officially accepted in Brazil. According to the Article 5.III of the Brazilian Constitution, “no one
shall be submitted to torture or to inhuman or degrading treatment”. However, torture by the Police
is sometimes reported by suspects.
2. Interrogation of Victims and Key Witness
Everyone may be a witness in Brazil.Since 2008,victims and witnesses are cross-examined by boththe public prosecution and the defence, and then the judge may formulate complementary questions.3
Although called “cross-examination system”, it is not allowed in Brazil to the party who called thewitness to make an examination in chief, after the other party cross examination. Before 2008, there
was a different sequence and method. The judge would interrogate the victim or the witness, andafterwards the public prosecution and the defence were allowed to direct questions to the judge,who
would reformulate and redirect the questions to the victim or the witness.Except for judicial mediation,
the old procedure is still adopted during the interrogation of the defendant.
As in the interrogation of a suspect or a defendant,the enquiring of a victim is not preceded by any
oath,and they are not punished merely because of lying.On the other hand,witnesses testifyunder oathcommit perjury if they do not tell everything they know about the investigated facts. There are,however, some exceptions to the obligation to testify, such as professional confidentiality.
Attending the hearing is mandatory for both victim and witness. If either of them does not attend
the hearing, the judge may conduct them to the court manu militari. The difference, as above
mentioned,is that the witness will be criminally punished merely by lying or remaining silent,while thevictim will not.
In general, a witness or a victim must testify in the presence of the defendant. But to prevent
intimidation,it is possible to use the video-conference system.If the required equipment isnʼt available,
the court may allow the hearing in the absence of the defendant.But the defence lawyer must always
be present.
B. M ethods to Facilitate Testifying at Trial by Protecting Witnesses, Victims and Suspects
If the witness or victim is at risk due to their collaboration in a criminal investigation or procedure,
it is possible to admit them in a protective programme (there is one federal programme and there aremany State protective programmes). The protective programmes were officially implemented in 1999
and are organized by the civil society in cooperation with the government. As many witnesses are inneed of protection because of threats made by police officersʼgroups,the collaboration of civil society
has been reinforced and is important to guarantee that the system operates well.The increase in civilsocietyʼs responsibilities may be considered a good practice. The State, however, coordinates andfinances the programmes of protection.
Federal Statute n. 9.807/1999 regulates and organizes the system of victims and witnessesʼprotection.Some protective measures that maybe adopted are(Article 7):(i)securityin the habitual residenceof the witness or victim;(ii)new residence or temporary accommodation in a location compatible withthe protection; (iii) preservation of identity, image and personal data; (iv) monthly stipendium toprovide a livelihood to the individual and family,if the protected person is unable to perform regular
3It is not allowed, in general, for witnesses to give their mere opinion, and the parties cannot ask leading questions.

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work or lacks any source of income;(v)temporary suspension of functional activities,without loss ofwages or benefits when the protected person is a public or military official;(vi) social, medical andpsychological care. In exceptional cases the person under protection may change their full name andassume a new civil identity. Up to now, such change has happened in five cases.
But the system of protection does not have sufficient resources.In 2003 the budget of the Brazilian
system was about four million dollars.The accommodations and facilities offered to the witnesses andvictims are precarious.In consequence,the usual witness in the case of a federal offence,who is either
rich or middle class, does not accept being admitted to the programme of protection.
There is also a leniency programme in Brazil.The Witnesses and Victims Protection Act (Federal
Statute n.9.807/1999)grants some benefits to the cooperative defendants,such as remission.Additional
thematic rules also provide for leniency agreements, especially the Organized Crime Control Act andthe Money Laundering Control Act.
Until the New Organized Crime Act,there was no regulation of the procedure in these cases,which
was appointed as a flaw in the legislation.However,this new law now regulates the agreement between
the defendant and the prosecutor, when that one gives important information to the investigation orprosecution of the crimes or information about the other offenders.The new Act,accepting a practicethat was developed in the case law,made a broad regulation of this new technique,especially regulating the procedure of the agreement.
The new law imposes a written assignment between the parts and gives to the informant a rangeof benefits,like judicial pardon,diminution of the penalty,suspension of prosecution,and others.The
judge will not be part of the agreement and will just supervise the legality of the agreement. If theinformer is not the leader of the organization and gives, first hand, an effective contribution, theProsecutor can dismiss the charges against him. According to the new law, the informant must wave
his right to be in silent and has the duty to tell the truth.It will be a difficult task to carry out this dutywith the idea that the informant cannot be persecuted if he doesnʼ
t tell the truth.
In any case, the judge cannot convict anyone based just on the word of an informant, and it isnecessary to confirm the defendantʼ
s information with other elements (the corroboration rule). The
prosecutor must have sufficient additional information to convince the judge, and the defendants
cannot be found guilty solely on the basis of an informantʼs declaration.
C. The Utilization of Special Investigation Techniques
The utilization of special investigation techniques is not yet so common in Brazil.This was due tothe absence of a systematic regulation on the matter.The special investigation techniquesʼregulation
was sparse and interspersed in various federal statutes,such as the Organized Crime Control Act andthe Drug Control Act. However, the New Organized Crime Act was enacted, aiming to change this
scenario.As an exception,wiretapping is regulated bythe Wiretapping Act and its practice is frequent.
1. Electronic Surveillance
Wiretapping is the most usual special investigation technique involving electronic surveillance.It isregulated by the Federal Statute n. 9.296/1996 and the Constitution, that states: “the secrecy ofcorrespondence and of telegraphic communication, data and telephonic communication is inviolable,
except, in the latter case, by court order, in the cases and in the manner prescribed by law for the
purposes of criminal investigation or criminal procedural finding of facts”(Article 5.XII).Therefore acourt order is a constitutional requisite.The Federal Statute n.9.296/1996(Wiretapping Act)adds threeother requisites: (i) the investigated crime should be punished with reclusion ― wiretapping is notallowed in the case of misdemeanors and offences punished with detention;(ii)there must be no otherway to collect the evidence;(iii)there must be a reasonable indication of authorship or participation
in a criminal offence(probable cause).The wiretapping can last for 15 days at maximum,but the judge
may authorize a prorogation if necessary. The Federal Statute n. 9.296/1996 (Wiretapping Act) also
applies to electronic communications (e-mail wiretapping).
The new Organized Crime Act (Federal Statute n. 12.850/2013) authorizes the registration of60

155TH INTERNATIONAL TRAINING COURSEPARTICIPANTSʼPAPERS
environmental electromagnetic signals, both optical and acoustic (bugging), in the investigation concerning an organized criminal group.
The use of GPS is not regulated in Brazil and there is a debate about whether a judicial authorization (court order)would be required in this case.
2. Undercover Operations
The old Organized Crime Act and the Drug Control Act (Federal Statute n.11.343/2008,article 53.I)
authorized the utilization of “undercover agents, but there was not enough regulation of the matter.
However, the new Organized Crime Act wants to change that.
The new Organized Crime Control Act regulates the “undercover agent”broadly.It depends,in allcases,on the judgeʼ
s decision and itʼs authorized just for police officers.In other words,itʼ
s not possible
for an informant to act as an undercover agent.The requirement to begin an undercover investigation
should expose the necessity of the measure,tasks which the agent will do and,when possible,the namesof the people who are investigated and the places where the infiltration will occur.
The undercover agent,as a drastic and dangerous measure,should be used just ifthe other measures
to obtain evidence are insufficient. The infiltration can last for six months, but can be extended if
necessary.At the end of each six months,the agent should make a detailed report and inform the judge
and the Prosecutor. However, at any time, the prosecutor can demand more information about themeasure. Regarding the limits of the undercover agent, if he commits a crime, he cannot be punished
if another conduct isnʼt expected. Otherwise he can be punished if he acts beyond reasonable limits.
After the charge, the reports made by the undercover agent should be available to the defence
lawyer,but preserving the agentʼs identification.The agent has the right to change his name,according
to Law 9807/99, and his image and voice should be preserved during the trial,although the agent has
to testify in court.Besides that,the agent cannot be photographed or filmed by the media without his
consent.
3. Controlled Delivery
The former Organized Crime Control Act (Article 2.II)and the Drug Control Act (Federal Statuten. 11.343/2008, Article 53.II) allowed the realization of controlled delivery, which is a technique of
frequent use in the investigation of drug trafficking. The Drug Control Act demands a court order,
whereas the former Organized Crime Control Act was silent about it
The new Organized Crime Control Act regulates “controlled delivery”. According to the new law,itʼ
s possible to retard the administrative or police intervention to obtain more evidence of the crime.
Itʼs requested that the offender must be supervised from the beginning until the end of the proceeding,to avoid escaping.The judge should be advised and,if necessary,he should authorize the limits of the“controlled delivery”and, then, communicate with the Prosecutor. In a case involving two countries,“controlled delivered”with the cooperation of both authorities is allowed if the itinerary of the person
is known.
The new law is unclear on which cases will or will not require a court order and,certainly,this issue
will be a point of discussion in the case law. It is also unclear what the police should do in case of
emergency, when it is not possible to communicate with the judge.
4. Personal Data
The new Organized Crime law grants access to Police and Prosecutors to the data containing
personal information, like address, filiation and personal qualification, kept by the Electoral Justice,banks, internet providers, telephone companies and others, without the necessity of a judicial order.
Furthermore,the transportation enterprises should grant to the Police and Prosecutors the informationof reservations and travels registration for the last five years. Finally, the telephone records should
also be granted to the Police and the Prosecutor, and the telephone companies should preserve theserecords for at least five years.

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Access to bank records requires a judicial warrant. Regarding this matter, it is important tomention ― and can be described as a good practice in Brazil ― the system developed by the Federal
Prosecutors Office called the Bank M ovements System (SIMBA),which aims to obtain the bank data
in a standardized format.In other words,the model establishes a standard model for receiving data andanalysing large volumes of financial records. In this new process, all the banks send the data via asecure system and in a standardized electronic format to the Research and Analysis Branch of the
Public ProsecutorsʼOffice, after the judicial decision was granted. When the information is received,
within generally two months, the programme already has issued five types of reports that help theProsecutor to analyse the information.The programme was granted to all investigation agencies andis now used in most of the cases of bank secrecy in Brazil.

III. CONCLUSION
Besides the points already mentioned, there are some underlying problems with regard to theinvestigation practice in Brazil. The Brazilian system is still very inefficient in collecting evidence,
especially in white collar criminal cases. About 8% of the crimes committed are effectively punished.
The panorama is worse in complex crimes. According to The Financial Action Task Force Mutual
Evaluation of Brazil (June 25,2010),after more than 10 years of the criminalization of money laundering, Brazil had significantly enhanced its ability to prosecute this crime, but there were only 11 final
condemnations.4 In other words, money laundering generally remains unpunished. Among other reasons, this is because the Police still rely on traditional techniques to investigate,even in complex andwhite collar crimes.
Until recently, there was no comprehensive legal regulation about the special investigation techniques.The New Organized Crime Act is aimed to change the panorama.This new law provides somenew special techniques to investigate organized crime that can help to obtain evidence and allow theState to punish these offenders properly and efficiently.However,the enforcement of this new law will
depend especially on the case law interpretation, trying to bring efficiency without disregarding theinterests of the suspect/defendant.
Also, the police officers are not well trained and do not count on sufficient resources and devices
to make use of the especial techniques. Some possible measures to foster an efficient system ofcollecting evidence, especially in complex crimes, are: (i) use properly and efficiently all the newinvestigation techniques;(ii)to provide training and equipment to the law enforcement agents;(iii)toallow the prosecutors to propose nolo contendere agreements to the suspect or defendant, even in thecase of serious crimes.
Brazil needs to assure better protection for witnesses and victims,and more precisely:(i)to provide
appropriate financing and organizational structure to the Witness Protection Program;(ii)to facilitate
the change of their civil identity;(iii)to allow the international relocation of the protected witness or
victim.
Finally, it is important to find a balance:nowadays there is an excessive judicial tolerance in theinterpretation and application of the law in order to make up for the cruelty and deficiency of thecriminal system in practice, inter alia. This posture propitiates impunity. Disregarding the public
interest is not a legitimate way to deal with the frequent violation of fundamental guarantees ofsuspects, defendants and convicted people.

4GAFI. Mutual

Evaluation Report Anti-Money Laundering and Combating the Financing of Terrorism. Federative
Republic of Brazil, 2010, p. 35. http://www.fatf-gafi.org/dataoecd/13/50/45800700.pdf>.

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THE CRIM INAL JUSTICE SYSTEM IN BRAZIL:A BRIEF ACCOUNT
Andrey Borges de Mendonça

I. INTRODUCTION
Brazil embraces the Civil Law tradition,and therefore its legal system depends upon a systematicinterpretation of written and general rules, passed by the legislature or, exceptionally, by the Executive. Nonetheless, the influence of Common Law practices is increasing. For instance, since 2004, theBrazilian Supreme Court is authorized to set mandatory precedents in exceptional circumstances,obliging both the Executive and lower ranks of Judiciary.Up to now,the Supreme Court has acted in
32 instances.
The Brazilian criminal justice system is framed by the 1988 Constitution, which includes dispositions about:(i)the elaboration of rules on criminal and procedural matters;(ii)the Judiciary and otheressential institutions;(iii)the procedural guarantees;(iv)juridical international cooperation.In a lower
hierarchy than the 1988 Constitution,the 1941 Code of Criminal Procedure and many sparse regulations
address criminal investigation, prosecution and adjudication in a more detailed manner.

II. THE FUNCTIONING OF THE BRAZILIAN CRIM INAL SYSTEM OF JUSTICEIn Brazil,besides the Especial Justices,or Special Courts,(Military and Electoral Courts),there areFederal and State Justices.In general,the Federal Justice(Federal Courts)has jurisdiction over crimes
involving the interests of the Federal Government and other crimes indicated by Article 109 of theConstitution. The competence of the State Justice (State Courts) is residual. The Federal Public
Prosecutors act in the Federal Courts, investigating and prosecuting federal crimes, like currency
counterfeiting;smuggling;federal tax dodging;evasion of social security contributions;slave labour;formation of cartels;money laundering;illegal transfer of money overseas;banking frauds;international drug trafficking;internet paedophilia;crimes committed byInternal Revenue employees,Federal
Police officers or by personnel of any federal agency or department;environmental crimes,etc.1 The
Federal Prosecutor, Federal Public Prosecution Service of Brazil. The author would like to thank Marcela Harumi
Takahashi Pereira for her assistance in co-authoring this paper.
1According to the Federal Constitution,Article 109:“
The federal judges have the competence to institute legal proceeding
and trial of:()IV ― political crimes and criminal offenses committed against the assets, services or an interest of
the Union or of its autonomous agencies or public companies,excluding misdemeanours and excepting the competenceof the Military and Electoral Courts;V ― crimes covered by an international treaty or convention,when,the prosecution
having started in the country,the result has taken place or should have taken place abroad,or conversely;V-A ― cases
regarding human rights referred to in paragraph 5 of this article; VI ― crimes against the organization of labour and,in the cases determined by law, those against the financial system and the economic and financial order;VII ― habeas
corpus,in criminal matters within their competence or when the coercion is exercised by an authority whose acts are notdirectly subject to another jurisdiction;VIII ― writs of mandamus and habeas data against an act of a federal authority,
except for the cases within the competence of the federal courts; IX ― crimes committed aboard ships or aircrafts,
excepting the competence of the Military Courts;X ― crimes or irregular entry or stay of a foreigner, execution ofletters rogatory, after exequatur, and of foreign court decisions, after homologation, cases related to nationality,
including the respective option, and to naturalization; XI ― disputes over the rights of Indians. ()Paragraph 5. Incases of serious human rights violations, and with a view to ensuring compliance with obligations deriving frominternational human rights treaties to which Brazil is a party,the Attorney-General of the Republic may request,before
the Superior Court of Justice,and in the course of any of the stages of the inquiry or judicial action,that jurisdiction on
the matter be taken to Federal Justice”.This and all the quotations are from Constitution of the Federative Republic of
Brazil:Constitutional text of October 5, 1988, with the alterations introduced by Constitutional Amendments no.1/1992
through 64/2010 and by Revision Constitutional Amendments no. 1/1994 through 6/1994. ― 3. ed. ― Brasilia:Chamberof Deputies, Documentation and Information Center, 201063

RESOURCE MATERIAL SERIES No. 92
State Public Prosecutors act in the State Courts and investigate and prosecute crimes like murder,
robbery, fraud, and all the offenses not framed in the other Courts.
In essence, there are four different moments in the functioning of the Brazilian criminal system ofjustice:firstly, the investigative Police, the Public Prosecution or another legally authorized organ
collects, if necessary, evidence of a fact that might be a crime and its agent (investigation);secondly,
the Public Prosecution or, exceptionally, the victim accuses the possible agent (prosecution);thirdly,
the Judiciary convicts or acquits the defendant (adjudication);fourthly, the criminal condemnation is
implemented (execution).
During the first phase, there is an inquisitorial and not an adversarial system;the suspects may
choose whether to be assisted or not by a lawyer,and,on their own initiative,may access non-sealed
evidence regarding themselves.Judicial intervention occurs exceptionally,for instance,when a temporary prison is required.
In the second phase,the Prosecutor decides whether to sue or not.This decision is not discretionary,and whenever there is some evidence of a crime,there shall be an accusation.However,there are a few
attenuations to this rule:(i)insignificant disconformities to criminal law may be considered irrelevant;(ii) some minor offences may not be investigated and tried if, given certain conditions, the possible
agent voluntarily accepts light “penalties”.
In the third and fourth phases, there is a judicial process in an adversarial system; the legal
assistance is mandatory and,in practice,ineffective to those who cannot afford private lawyers.It may
be noticed that also during the investigation phase, the optional legal assistance will be guaranteed
only to those who can afford private lawyers. With regard to criminal execution and imprisonment,
Fingermman reports that Brazil maintains the fourth largest imprisoned population in the world,being
exceeded only by the USA,Russia and China.2 The author adds that “
nearly half of Brazilʼ
s incarcerated population is composed of pre-trial prisoners”and “80 per cent of the prisoners in Brazil are unable
to afford a private lawyer”.3
The first, second and third phases ― investigation until trial ― will be the objects of deeper
explanations. The next flowchart shows, briefly, how Brazilʼ
s criminal system works.

A. Investigation
The agencies and organizations responsible for criminal investigations in Brazil are, mainly, theFederal Police (as the name explains, act in the whole country)and the Civil Police (that act in eachState).The Federal Police investigate:(i)criminal offences against the political and the social order orto the detriment of property, services and interests of the Union and of its autonomous government2Isadora Fingermann, “The challenges of access to justice and enforcement of the right to counsel in Brazil”,Criminal

Justice Matters, 92:1, 24-25.
3Ibid.

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entities and public companies (in one word,federal crimes),as well as other offences with interstate orinternational effects and requiring uniform repression as the law shall establish;(ii) illegal traffic ofnarcotics and like drugs,as well as smuggling,without prejudice to action by the treasury authorities
and other government agencies in their respective areas of competence. According to the Brazilian
Constitution, it is incumbent upon the civil police, except for the competence of the Union,to investigate criminal offences,with the exception of military ones.In other words,the Civil Police investigate
crimes adjudicated by the State Courts and the Federal Police the crimes judged by the Federal Courts,
the illegal traffic of narcotics and like drugs,smuggling and other offences with interstate or international effects requiring uniform repression as the law shall establish.
Also, there are other government agencies that investigate crimes in their respective areas ofcompetence,although this is not their primary attribution.These agencies investigate when a criminal
offence is discovered during the regular exercise of their legitimate functions. For instance:(i) The
Environmental Agency(Ibama4)is responsible for investigating offences related to the environment;(ii)5) is responsible for investigating offences related with
Internal Revenue Service (“Receita Federal”
revenue frauds and other federal tax frauds; (iii) the Central Bank (“Banco Central do Brasil”6)
investigates financial crimes;(iv) the Securities and Exchange Commission of Brazil (“Comissao de
Valores M obiliarios-CVM ”7)investigates offences in the securities market;(v)the COAF is the Brazilʼs
FIU ― Financial Intelligence Unit ― acting in anti-money laundering and countering the financing ofterrorism activities.8
As said above,these agencies are not focused primarily on investigating crimes.They do so when,
while developing their activities, they realize that a crime has been committed. In general, at the endof their activities,these agencies communicate to the Prosecutorʼs Office,sending the evidence that anoffence has occurred. Sometimes, just with the information sent by these agencies, it is impossible toinitiate an immediate prosecution,so the prosecutor can complement the investigations,or it is possible
to order the police to continue the investigation.
The investigation conducted by the Police is made in a police enquiry ruled by a chief police officer
or police commissioner. These agents are graduated from law school and conduct the police enquiry
under the supervision of the prosecutor.The judge acts in the investigation exceptionally,just when it
is necessary to restrict the suspectʼs rights or guarantees.
In Brazil,in general,public prosecutors cannot command the above-mentioned investigative organizations directly in a criminal investigation,but can request investigatoryprocedures and the institutionof a police investigation. Nonetheless,there are few good examples ofJoint Venture investigations,theso called “Task Forces”(like the Banestado case,that investigated the financial crimes related to the
Bank of Banestado, in the Brazilian State of Parana, with great results), where the Prosecutors cancommand the agents of other agencies, although there is no regulation of the Task Forces in Brazil.
According to the Brazilian Constitution,among other institutional functions of the Public Prosecution, it is their task to initiate, exclusively, public criminal prosecution,9 under the terms of the law(article 129, I)and to exercise external control over police activities (article 129,VII).According to apart of the doctrine and the case law, based on these constitutional articles, it is possible for theprosecutors to conduct their own investigation,grounded in the implicit power theory.In fact,a lot of
corruption cases and important crimes were solved because of the prosecutorsʼinvestigations,bringing
to court a lot of politicians and agents used to impunity.In general,the prosecutorsʼinvestigations are
more efficient and independent than the ones conducted by the police, especially because the police
4M ore information available at

http://www.ibama.gov.br>, but only in Portuguese.
http://www.receita.fazenda.gov.br/>, but only in Portuguese.
6M ore information available at http://www.bcb.gov.br/?ENGLISH>, in English.
7M ore information available at http://www.cvm.gov.br/ingl/indexing.asp>, in English.
8M ore information available at https://www.coaf.fazenda.gov.br/conteudo-ingles/about-money-laundering>,in English.
9 Private prosecution in Brazil is possible in two cases.The first,when the criminal code said that a specific offence justcan be prosecuted by the injured.The second,according to article 5o,LIX,of the Constitution:“
private prosecution in thecases of crimes subject to public prosecution shall be admitted, whenever the latter is not filed within the period
established by law”
5M ore information available at65

RESOURCE MATERIAL SERIES No. 92
officers do not have independence in their investigations and can be taken offthe case bytheir superior,which is impossible when it comes to prosecutors.10
On the other hand,a part of the doctrine dissents about the possibility of prosecutorʼ
s investigation,
based on the alleged abuses committed by the prosecution and the lack of legal regulation about the
subject. In fact, there is no legal regulation about investigations conducted by the public prosecutors.
Despite that discussion, it is common for prosecutors to investigate a lot of crimes on their own,
especially crimes committed by police agents and corruption, with very good results. In this sense,toregulate these activities,there is a resolution (the level of which is below law)by the National Councilof the Public Prosecution that regulates the investigation made by the prosecutors.11 When theProsecutor directly makes the investigation,he may interview the suspects and key witnesses directly.
Furthermore, he is authorized to access public databases, to require information, exams, expert
examination and documents from public and private authorities and request the police force to help theinvestigation.
The Grand Bench of the Supreme Court in Brazil has not decided yet whether it is possible forprosecutors to investigate, although there are other decisions of that court, from the benches,12
accepting the prosecutorʼ
s investigation.The tendency of that Supreme Court is to accept the prosecutorʼ
s investigation at least in cases involving crimes committed by police officers and in other cases
where the police do not have interest in investigating.
Very recently,there was a legislative proposal for changing the 1988 Constitution in order to restrict
the legitimacy to conduct investigation solely by the Police, especially to forbid the prosecutorʼsinvestigation. This attempt, inter alia, has motivated several recent popular manifestations all overBrazil, and ended up being rejected by the Congress on June 25,2013.There was a general belief thatthe proposed legislative alteration would propitiate impunity,as criminal investigations would become
more unlikely, especially because the police crime clearance rate is very low, below 10%.
To sum up,there is a lot of discussion in this field in Brazil currently,but the tendency is to accept,
although with limitations,the possibility of the prosecutors to investigate.In cases where the prosecutors investigate,the judge oversees the investigation,especially authorizing restrictive measure.Also,
when a suspectʼs rights are disrespected, the judge may be required to correct the alleged abuse.
At this point,it is important to outline the investigative procedure.In fact,there is no procedure to
be strictly observed. The president of the investigation (the police officer,in the police inquiry)has arelative discretionary power to determine the collection of evidence through the investigation.In otherwords, the strategy of the investigation is under the police officerʼ
s discretion. Despite that, theprosecutor, throughout the whole investigation, can interfere in this strategy, ordering the police totake specific measures or to obtain further proof.This is explained because the investigation is aimed
to give the prosecutor the information needed to file a charge.
In general, the Brazilian Police does not have a good structure. There are a lot of crimes toinvestigate and little structure. In addition, especially in the State Police, unfortunately it is very
common for police agents to be corrupted.
In general, the investigation is based just on acquiring statements from suspects, victims and key
witnesses,as the primary means of gathering evidence,without the use of new techniques.Sometimes
simple exams are made (as to prove the falsity of a document). In investigations related with drugtrafficking,it is common to see the use of wiretapping.However,the Federal Police has been develop10 In Brazil, public prosecutors have equivalent status as the judges in terms of qualification, salary and guarantees of

independence. Aside from disciplinary proceedings, they cannot be suspended from the performance of their duties
11 Resolution n. 13/2006 can be obtained at: http://www.cnmp.mp.br/portal/images/stories/Normas/Resolucoes/res
cnmp 13 2006 10 02.pdf>.
12 The Brazilian Supreme Court is composed by 11 Justices, divided in two benches composed by five Justices each. In
some cases,the Grand Bench (the eleven Justices together)votes to decide certain aspects,especiallyin important mattersand when there is conflict between decisions among the two benches.

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ing,since 1988,a better structure to investigate and sometimes to use new techniques of investigations.
During the investigation, the interviews of the suspect are, in general, documented in a written
record, signed by the suspect. Generally, it has given the suspect the opportunity to confirm and tocorrect mistakes in the recorded statement.In some cases,the police records on video the interview,togive more reliance on the suspectsʼconfession. To avoid further allegation of coerced confession ―unfortunately still very common in Brazil ― especially during detention,the police sometimes orders
a medical exam, to show that no harm occurred during the interview. According to Brazilian regulation, in all cases the suspectʼs attorney can attend the interview conducted by investigative organizations.
The confession ― documented on paper or on video ― is able to be used as evidence to prove thedefendantsʼguilt.Their statements,however,must be confirmed before the judge.According to article
200 of the Brazilian Criminal Procedure Code,retraction is possible in pre-trial confession.Due to that,
if the confession before the Police is not confirmed in the judicial phase, it will be given little or novalue. In Brazil, no one can be convicted in cases where the only proof against him is his own
confession, according to articles 197 and 158 of the Brazilian Procedural Criminal Code.
In Brazil,the prevalent interpretation nowadays is that any interference with the suspectʼs privacy
requires a warrant. Due to that, warrants are required to search in residences, in enterprises or to
obtain data protected by constitutional secrecy(such as bank records,call logs and telephone communications, the secrecy of correspondence and other fiscal data). Judicial warrants are also necessary toauthorize wiretapping, electronic surveillance, controlled delivery and “
undercover agents”.
Warrants are not required for personal searches,whether the suspect carries weapons or evidence.
Finally, the Police and Prosecutors have access to the data containing personal information, likeaddress, filiation and personal qualification, kept by the Electoral Justice, Banks, Internet Providers,
Telephone Companies and others, without the necessity of a judicial order.
The investigation can last months and even years,until the expiration of the legal term.In certain
periods of time (generally each 30 or 90 days), the Police must ask the prosecutor for an extension of
the investigation. The prosecutor should, in this case, consent to the extension and determine thediligence the police must make during the period.
It is important to mention that the reported crime clearance rate in Brazil is very low,below 10%,and although it is difficult to measure, especially because the data are not reliable, it shows how
inefficient the Brazilian criminal justice system is.Also,the system allows the defendant to indefinitely
postpone the beginning of serving the convictionʼ
s sentence.This and other features give the sensationof impunity throughout Brazilian society, especially in offences like corruption, widely spread insociety. In fact, in the 2012 Corruption Perception Index, Transparency International ranked Brazil
69th of the 174 jurisdictions covered by the index.13 According to Transparency International, somestudies show corruption is now costing upwards of $40 billion each year in Brazil.14
1. Pre-Indictment Detention
Regarding pre-indictment detention, according to the Brazilian Constitution (art. 5o, subsection
LXI), “no one shall be arrested unless in flagrante delicto or by a written and justified order of acompetent judicial authority, save in the cases of military transgression or specific military crime,asdefined in law”.
In this way,the pre-indictment detention occurs,in general,if there is a warrant to arrest,issued bya judge, on the ground of (i) flight risk;(ii) risk of recidivism;(iii) risk that the suspect will destroy
evidence or otherwise affect the investigation of the crime. The pre-indictment detention is only
admitted whether there is probable cause and the crime has,in general,a statutory maximum penalty
of at least 4 years.Pre-trial detention is only admitted if the use of other non-custodial solutions (such13
14

http://cpi.transparency.org/cpi2012/results/>.
http://www.transparency.org/news/feature/brazil one million people demand accountability>.

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as bail,reporting to justice and electronic surveillance,for instance)are insufficient,taking for granted
that pre-trial detention is used as an exceptional measure.Recently the Law 12.403/2011 was enacted,
which changed a lot of aspects of pre-trial detention and changed the Brazilian system, especiallycreating a lot of alternative measures, to avoid, as much as possible, the use of detention.
The request of the detention could be from the prosecutor or the police officers (in this case,passing
by the prosecutor). During the investigation, the judge cannot issue a warrant detention ex officio,
although it is still possible during the trial. The suspect should be listened to, in general, before theexpiration of the warrant, except whether there is risk of ineffectiveness of the measure.In this case,the detainee should present a reply after the detention. In Brazil, there is no detention hearing by thejudge.
However, besides the warrant to arrest, the pre-indictment detention is possible when someone iscaught while perpetrating a crime or immediately after it.In this situation,the offender can be arrested
in flagrante delicto.It is important to mention that,although there is the right to silence,the police does
not warn the detainee about this right in the moment of detention (but just before the interrogation).
In other words, there is no similar warning as the “Miranda warnings”. The police, then, take thedetainee to the police station and book him, although the criminal identification is exceptional.15
After the arrest,the police have 24 hours to obtain the statements of the witnesses and interview thedetainee (custodial interrogation), making a report of the detention (called “record of the flagrantedelictoʼs detention”), to be sent to the judge and the prosecutor.16 This record indicates the circumstances of the prison and the legality of the detention.In some cases (offences with statutory maximum
penalty lower than 4 years),after the report,the Police Officers can release on bail (stationhouse bail).
In the other cases,the arrested will continue to be detained,until the judgeʼ
s decision.The detainee has
the opportunity to be assisted by a lawyer during police interrogation, although it is not mandatory.
According to the Constitution,in case of flagrante delicto,the arrest shall be immediately informed
to the competent judge ― in practice,it occurs in 24 hours by sending a copy of the flagranteʼ
s record
to the judge ― and the illegal arrest shall be immediately remitted by the judicial authority.After thecommunication and if the detainee was not released on bail by the police,the judge may release,withthe use of one or several non-custodial measures. If the detention is necessary, the judge should issue
a warrant to detain ― and the suspect will continue to be detained.
The police or the prosecutor,except in the case of flagrante delicto,cannot detain a suspect without
a judicial warrant, even in cases of urgency.In other words,there is no emergency exception and thepolice should obtain a detention warrant,unless the suspect is committing a crime or has just perpetrated it.
In Brazil, although there is no specific or explicit regulation, the maximum period to detain thesuspect in pre-indictment detention is 10 days in State jurisdiction or 30 days in Federal jurisdiction.In
some grave crimes ― torture, illicit traffic of narcotics and related drugs, as well as terrorism, andcrimes defined as heinous crimes ― the pre-indictment detention could last for 60 days.
B. The Decision to Prosecute
At the end of the police enquiry,the police officer makes a brief and objective report,describing thediligence performed and the evidence obtained, and sends the police enquiry to the Prosecutor. The
prosecutor has, then, three alternatives: (i) dismiss the case, if it is not possible to prosecute (forinstance,where there is no probable cause related to the author of the crime or the materiality or if theoffence is insignificant).The judge can disagree with the non-prosecution decision and,in these cases,
15 According to the Brazilian Constitution,“no one who has undergone civil identification shall be submitted to criminaloidentification,save in the cases provided by law”(Article 5 ,subsection LVIII).The cases that the law allows the criminal
identification are related to non-reliable documents or some types of crimes (as adulteration, fraud or forgery of
documents).
16 In some small offences (with statutory maximum penalty not more than 2 years),the police do not make the report andinterview the witness and the offender, releasing the offender on his or her own recognizance.

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the superior organisms of the Public Prosecutorʼs Office will decide whether or not to prosecute;(ii)demand more investigation by the police;(iii) prosecute,if there is probable cause that an offence wascommitted. In this case,the police enquiry(or the previous investigation)and all the evidence collected
go along with the indictment, during the whole trial.
C. Trial
The trial phase is an adversarial system,where the due process clause and a fair trial are granted
to the defendant, with all the means related. In the first instance,in general,the cases are heard by asingle judge, the same one that oversees the investigation. In other words, the competent judge is thesame, from the beginning of the investigation until the first instance sentence. However, in cases
involving crimes against life, such as homicide, the judgement is before a jury trial, formed by 7 laycitizens and the verdict does not have to be unanimous ― a simple majority is sufficient. It is notpossible to waive the right to a jury trial.
For crimes punishable by imprisonment for less than 2 years,there is a more simplified procedurethat can lead to an agreement between the prosecutor and the suspects (called transaction). In thesecases, if the suspect and his lawyer accept the proposition of a restriction, the case is dismissed.
In general, after the indictment, the procedures at trial begin. There is not a system of pleabargaining in Brazil, where the defendant can plead guilty. There are just two benefits that mitigate
the general rule:the transaction (see above)and the “suspension of the process”.The latter allows theprosecutor to suspend the procedure, from two to four years, and, during that period, the defendant
would be on a type of probation. The prosecutor considers some of these factors concerning thedefendant and the crime:(i) the statutory minimum penalty should not be superior to 1 year;(ii) the
offenderʼs character and the circumstances under which the offence was committed;(iii)the defendantcannot be accused of another crime. If these factors are present, the prosecutor can offer the benefit
and,if the defendant and his lawyer accept,the judge will suspend the process for,in general,two years.
During this period, the defendant submits to some conditions and, in the end, the procedure could bedismissed.Besides that,the Brazilian criminal code does not allow summary procedure even when the
defendant pleads guilty.Even in these cases,all the long and last procedure should be observed and theprosecutor has no discretion in the decision to prosecute.
If there is no suspension,the step-by-step from indictment to sentencing can be described as follows:(i)the judge analyses whether the accusation has probable cause and begins the trial, if so;(ii) after
that,the defendant is summoned and presents an initial written reply,by his lawyer;(iii)on the groundof the defenceʼs response,the judge can summarily acquit the defendant.If not,a hearing is appointed;(iv)on the occasion of these hearings,that are supposed to be unified,the victim,the witness and theexpert witness testify (in general,maximum of eight for each part)and make their statements.After
that, there is the judicial interrogation, when the defendant can remain silent, without any negative
consequence. Then, the prosecutor and the defence should make their closing arguments,orally,in 20
minutes.At the end ofthe hearing,the judge should pass the sentence.This is the basic legal chronology
of a criminal case.
Although this is the legal system, as a matter of fact it is very difficult to have a continuous andunified hearing. It is very common to have two or more hearings,for many reasons (difficulty to findwitnesses, witnesses that do not appear, etc.) and, for that, it is very rare, in practice, to have acontinuous and unified hearing.There usuallyis one hearing for the prosecutorʼ
s witnesses,one hearing
for the defenceʼs witnesses and a final hearing for the judicial interrogation.It is very common,too,forthe prosecutor and the defence to require the judge to change the oral closing arguments for written
allegations and the judge rarely sentences during the hearing. This is due to a very strong written
tradition in Brazil.
The evidence collected during the investigation and the documents prepared by investigators are allreferred to the judge after indictment.As previously said,the police enquiry or the previous investigation and the evidence collected during this stage go along with the indictment. In other words, theprosecutor cannot choose the best evidence appropriate to prove the defendantʼ
s guilt to the court.The
evidence collected during the investigation,exclusively,cannot allow a conviction,although,according69

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to Article 155 of the Brazilian Criminal Procedural, it can be used to reinforce the evidence obtainedin the trial phase.
Although it is not forbidden,the prosecutors in general do not prepare their witnesses before trial,
probably because this may be misunderstood by the judge as an attempt to coerce the witness.
However, the defence lawyers usually prepare their witness before trial.
As said before,if the confession before the police is not confirmed in the judicial phase it should begiven little or no value.As a matter of fact,the judge should analyse the existing proof,to see if thereis evidence to convict.In Brazil,no one can be convicted in cases where the only proof against him is
his own confession, according to articles 197 and 158 of the Brazilian Procedural Criminal Code. In
practice,however,it is common to see the courts admitting the pre-indictment confession with considerable value, although it is rare to convict only on the ground of the pre-indictment confession.
The evidence collected thorough the investigation is, in general, allowed to be submitted to thecourt. The only exception is the exclusionary rule, settled in the Constitution as follows:“
evidenceobtained through illicit means is unacceptable in the process”(Article 5o,subsection LVI).For instance,
evidence obtained with violation of privacy or bank secrecy and coerced confessions cannot be used toconvict. Brazil does not adopt the rule against hearsay and, in fact, it is very common to see police
officers testifying about the suspectʼs confession during the arrest,which is accepted by the case law.
Federal Statute n. 9.807/1999 regulates and organizes the system of victims and witnessesʼprotection (see pages 5-7).The Brazilian Criminal Code (Article 212),to prevent intimidation,authorizes the
adoption of the video conference to hear the witness or the victim. If the required equipment is notavailable,the court may allow the hearing in the absence of the defendant.But the defence lawyer must
always be present.
After the conviction,the defendant will remain at liberty until the final decision,unless there is thenecessity of a warrant detention. The problem is that the parts could appeal on the ground of any
argument and, besides that, there are almost three instances, what makes the beginning of the execution of the sentence very slow.In other words,the postponement of the final decision is very common,
what allows, in a lot of cases, expiration of the statute of limitation and impunity.

III. CONCLUSION
The 1988 Brazilian Constitution structures our criminal justice system in a reasonable way. In
practice,however,it does not work properly.Many different reasons have been pointed out to explain
the problem,such as:(i)lack of governmental investment in building and maintaining prisons (building
schools and hospitals is more appealing to voters, convicted people do not have the right to vote andtemporary prisoners encounter many difficulties to vote);(ii)political influence over the high ranks of
the Judiciary;(iii)an obsolete 1941 Code of Criminal Procedure, edited in a dictatorship and inspiredby the fascist Italian Code of Criminal Procedure of 1930;(iv) absence of a systematic regulation on
juridical international cooperation.
Nonetheless, there is hope. Brazil is receiving international pressure to improve conditions in theprisons,temporary prisoners were recently allowed to vote,important Brazilian politicians have been
convicted of corruption in the recent M ensalao scandal, drafts of a new Code of Criminal Procedure
and a Juridical International Cooperation Act are under discussion and many sparse federal rules,andthe 1988 Constitution itself,have changed the essence of the 1941 Code of Criminal Procedure.Recently,
as a result of popular demands to combat corruption, Law 12.850, of August 3, 2013, was enacted,
aiming to regulate the new techniques of investigation to combat organized crime.

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CRIMINAL JUSTICE IN M ALDIVES
Mahmood Saleem

I. INTRODUCTION
The Maldives is well known as paradise on earth and a tourist haven for its enormous natural
beauty, safety, and peace loving and friendly people, even though the crime rate has increased
considerably in recent years. Until the enactment of the Constitution on 7 August 2008, the criminal
justice system of the Maldives heavily relied on the use of confessions.There was a lack of other formsof evidence gathering, including the development of forensic and other scientific investigative skills.
M ore than 90 per cent of convictions are said to be have been based on confessions made during
investigation. According to the Criminal Court, in 2002-2003, 97 per cent of cases were confession
based.1 In 2004, 64 per cent of cases relied on confessional statements.2 However, with the Constitutional reform in 2008, the Maldives is moving from a confession-based to an evidence-based system,
which is in line with international standards and thus strengthening the rights of the accused.

II. THE LEGAL SYSTEM
The legal system of the M aldives,due to minimal commercial activity and a low crime rate evolved
at a slow space and remained greatly underdeveloped.In addition,the Maldives did not receive English
common law culture, although it remained a British Protectorate during the period 1887 to 1965.
However, due to the Islamic shariʼ
ah and British influence, the Maldivian legal system is based on
shariʼ
ah law and codified common law.
The Report of the Special Rapporteur on the independence of judges and lawyers stated that thelegal system still falls short of international standards including in criminal justice.3 According to theDraft Discussion paper by the Hon. Justice Marcus R. Einfeld,4 it is generally recognized that theM aldivian legal system has been struggling to keep abreast with recent socio-economic developments
associated with rapid economic development, a boom in tourism, increased international trade andinvestment, fast population growth and changing living standards and lifestyle.5
The Draft Discussion Paper also identified a number of weaknesses in the legal framework including weak procedural structures and a lack of laws governing legal procedures,the absence of a formal
law reporting system which is inhibiting the establishment of a strong doctrine of legal precedent,
uncertainty regarding the respective standards of proof in criminal matters, and unclear principles
regulating the admission of evidence.6
However,following the incidents in 2003 including the brutal murder of 19-year-old inmate Hassan
Evan Naseem,three of his fellow inmates who were also shot to death in Maafushi prison and riots in
M aleʼas well as local and international demand,7 the M aldives had put greater effort into thedevelopment and reform of its criminal justice system.
Assistant Public Prosecutor, Head of Prosecution Department, Prosecutor Generalʼs Office, M aldives.
1Bendic Rogers, A Report on a visit to the M aldives (2006)at 7.
2Ibid.
3Leandro Despouy,Report of the Special Rapporteur on the independence of judges and lawyers,A/HRC/4/25/Add.2 (2May 2007).
4Hon. Justice M arcus R. Einfeld AO QC PhD, Strengthening the M aldivian Judicial System, Draft Discussion Paper,
Sydney, Australia, (June 2005).
5Ibid.
6Ibid.

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III. CRIMINAL LAW
The Penal Code of the Maldives was enacted in response to civil unrest in certain regions of thecountry in 1967.Whereas this current Code was enacted due to a specific uprising in certain regions of
the country and lack of reform to date it is not comprehensive and is in principal unable to address
current crime patterns and escalation of crime in the Maldives.
According to the former Attorney General,Dr.M ohamed M unavver,the current Penal Code,which
was put together in a haphazard manner from extracts of the Sri Lankan Penal Code, is long since
outmoded.Apart from this,the Criminal Procedure and comprehensive Evidence Act are non-existent.8
In 2006, a new Penal Code was drafted. However the draft Penal Code is still pending in the
Parliamentʼ
s committee stage.9 Former Attorney General,Husnu Suood,said that a revised Penal Codewas very much the need of the hour as the current Penal Code has been in place for about halfa century
and does not serve its need as certain punishments are not appropriate for the offence or certain
punishments are not even implemented in the country. M r. Suood also stated that the current Penal
Code does not suit the present day needs,and if the draft Penal Code gets enacted,the criminal justicesystem will be more effective.10

IV. OVERVIEW OF CRIME TRENDS, THE CURRENT SITUATION AND
CHALLENGES
A. Crime Trends
There is no comprehensive study of crime in M aldives.According to the Statistical Report 2010 of
the M aldives Police Service (MPS), 4,567 criminal cases were reported to the M PS in 2000. In 2007,
11,452 cases were reported to the police. This report shows that the number of cases filed with thepolice fell 11 per cent from 19,259 cases in 2009 to 16,995 cases in 2010.However this drop in the crime
rate is still very high compared to the statistics of the year 2007 and 2000.11 According to the Statistical
Report 2011-2012 of the M aldives Police Service, 17,804 cases were reported to the M PS in 2011.This
report shows that the number of cases filed with the M PS rose 15.2 per cent from 17,804 cases in 2011
to 20,512 cases in 2012.12 The Crime rate is extremely high when taken as a percentage of the total
population of the country. The M aldivian population numbers approximately 300,000 people.13
B. The Current Situation
In a Press Statement on 21 March 2010, human rights Non-Governmental Organizations (NGOs)
stated that serious crimes such as assault with sharp weapons,drug trafficking,sexual abuse of womenand children,and murder have become common in M aldivian society,and they condemn this increase
in serious crime and also the failure ofthe State and responsible authorities to convict those responsible
for these crimes.14 According to the Human Rights Commission of the Maldives (HRCM), in recent
times gang violence,burglary,mugging,sexual abuse of children and murders are increasing to levelsof alarming concern in the society.15

7Hussain Shameem, M ALDIVIAN LEGAL SYSTEM: CORRUPTION CONTROL M ECHANISMS AND CODES OFCONDUCT FOR LAW ENFORCEMENT OFFICIALS at 305 http://www.unafei.or.jp>.
8Asian Human Rights Commission, M ALDIVES: The Human Rights Situation in 2006 http://material.ahrchk.net/
hrreport/2006/M aldives2006.pdf>.
9“Penal Code draft bill sent to Majlis committee”Miadhu (online ed, Maldives, 15 October 2009) http://www.miadhu.
com/2009/10/local-news/penal-code-draft-bill-sent-to-majlis-committee/>.
10 Ibid.
11 MPS, Statistical Report 2010, (27 April 2011) http://police.gov.mv/>, MDN, M aldives Police Service in 2010: A
Snapshot www.mvdemocracynetwork.org/maldives-police-service-in-2010-a-snapshot/>.
12 MPS, Statistical Report 20112012, (2013) http://police.gov.mv/>.
13 Maldives, National Adaptation Programme of Action (NAPA)(2006).
14 Maldivian Democracy Network, Press Release ― Escalation of crime (23 March 2010) www.mvdemocracynetwork.
org/press-release-escalation-of-crime/>.
15 HRCM, ISSUES FOR CONSIDERATION WHEN COM PILING THE LIST OF ISSUES on the Initial Report of
M aldives under the International Covenant on Civil and Political Rights (May 2011)at 8.

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Since 2008, the courts of the Maldives have not admitted confessions made to the police by the
defendants if they withdraw the confession at the trial except in PGO v Mohamed Nabeel.16 Similarly,
courts are also reluctant to admit witness statements made during police investigation if they retract
the statements or the witnesses prefers to keep silent at the trial.This is one of the major reasons forthe low conviction rate that the Maldives is currently experiencing. Many people blame the rise incrime and low conviction rate on the new democratic system and human rights guaranteed under the
new Constitution of the M aldives.
Article 52 of the Constitution stipulates that “No confession shall be admissible in evidence unlessmade in court by an accused who is in a sound state of mind. No statement or evidence must be
obtained from any source by compulsion or by unlawful means and such statement or evidence isinadmissible in evidence.”17
Torture during investigation was very common until recently.This was the major reason why the
new Constitution does not allow confessions as evidence unless made in court.Whilst there was a very
high conviction rate prior to 2008,there were no safeguards to ensure that the confessions were fairly
and lawfully obtained.
Nevertheless,now it has become a trend for the offenders to make confessions to the police and getleniency from any possible remand or detention.The police also take their investigation easy when an
offender has made a confession during investigation. However they simply withdraw the confessions
at the trial and escape from the conviction.
It has to be noted that as several facilities and services provided by the police are inactive or sufferfrom shortages of resources and capacity in most serious cases,the police also fail to collect evidence
other than a mere confession. Therefore the Maldives needs to establish an effective mechanism on
crime investigation to improve the policeʼs capacity in effective collection of evidence in criminal casessuch that it inspires confidence in the criminal justice.
C. The Causes
According to the HRCM , the increase in the crime rate has been aggravated due to a number of
direct and indirect factors. It noted some of the direct factors including, inadequate legislation
pertaining to the criminal justice system, such as a Penal Code that does not reflect the spirit of thepresent Constitution as it has many parts which are not relevant to the present context, inadequate
legislation pertaining to evidence and witnesses, dismissal of forensic evidence by the courts,and theabsence of a witness protection programmes.18
D. The Challenges
1. Low Conviction Rate
As mentioned before until recently, the M aldivesʼcriminal justice system depended heavily on
confessions.There was lot of criticism of this high confession rate.However,after the adoption of thepresent Constitution in August 2008, the M aldives criminal justice system changed from being
confession-based to evidence-based,thus strengthening of the rights of the accused.19 This is one of the
major reasons for the low conviction rate that the Maldives is experiencing now.The recent statistics
released by the M PS show a significant decrease in the proportion of criminal cases which reach thecourts leading to a conviction.As noted by the MDN,the most worrying figures come from the numberof cases that reach the courts and end in convictions. There were 3,323 cases sent to the Prosecutor
Generalʼs Office (PGO) in 2010 by the M PS. From the cases filed in 2010, only 75 convictions wererecorded.20 M any human rights NGOs in the country,have noted that the conviction rates are alarming
16 “Nabeelʼs execution order appealed in MaldivesʼHigh Court”Haveeru Online (online ed, Maldives, 21 March 2011)www.haveeru.com.mv/news/34905>.
17 Constitution 2008 (MV), at 52.
18 HRCM, ISSUES FOR CONSIDERATION WHEN COMPILING THE LIST OF ISSUES on the Initial Report ofMaldives under the International Covenant on Civil and Political Rights, above n 15, at para 19.
19 United Nations Development Programme in the Maldives and the Government of M aldives, Prison Assessment andProposed Rehabilitation and Reintegration of Offenders Report (2011) at 19 www.undp.org.mv/v2/publication files/
4e649d60b9b4a.pdf>.

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and, called upon all relevant State authorities to improve relations and communications among thevarious institutions as these relationships are vital for the effective collection and utilization ofevidence in criminal cases.
However,the M aldives is moving to an evidence-based system,and there is no evidence-related orother relevant legislation, rules or procedures. The police,prosecution and other relevant institutions
need capacity building,proper training,resources and facilities to work in an evidence-based system.
2. Lack of Coordination
Lack of understanding and coordination among relevant institutions including the MPS, the PGO,
the Executive and the Judiciary is one of major challenges.Inadequate communication and corroboration between relevant institutions is another major cause of concern caused by the lack of policies andprocedures.Dangerous offenders often appear to have withdrawn from the penal system and are seen
to be living in the community as free citizens.21 The M DN highlighted that while courts point theirfingers at the police and the prosecution for not presenting enough evidence, the police have gone onrecord very publicly saying that courts were obstructing their investigations.The MDN further notedthat this apparent breakdown in the relationship between the judiciary and the police is certainly cause
for great concern.22
3. The Intimidation of Witnesses
According to the Report on Capacity Development Needs Assessment of the Prosecutor Generalʼs
Office of the Republic of Maldives, yet to be published, the intimidation of witnesses is a growing
problem in the administration of justice in the Maldives.23 The Prosecutor General Mr.Ahmed M uizzu
stated that reluctance of witnesses to testify at trial is a growing concern during criminal trials. Mr.
M uizzu said that “there are witnesses reluctant to testify at the Court due to intimidation and also there
are witnesses［ who］ do not want to testify at the Court due to various influences.”24 Likewise, theCriminal Court also has great concern on the same issue stating that large number of serious assault
and murder cases end acquittals due to witnesses refusing to give evidence in the Court.25
4. Lack of Capacity
The main function of the M PS is to investigate criminal cases.They do this by collecting evidence.
The police will send the investigation case file to the PGO who will decide what action should be taken
next. The PGO also provides assistance during investigation mostly if the police so request. If theprosecution decides there is enough evidence and grounds for charging the offender,then the case will
be sent to the court for adjudication.
The Capacity Development Needs Assessment of the Prosecutor Generalʼs Office of the Republic of
M aldives Report 2008 stated that at the time of the assessment advocacy skills of prosecutors were atbasic levels and preparation was not always thorough. This Report also noted that confidence in theway in which cases are handled will grow when greater experience and expertise is demonstrated incourt.26
M any locals as well as some members of the Parliament have been criticizing the performance of
the PGO due to losing serious criminal cases.However this research showed that the higher number ofacquittals is not only due to the ineffectiveness of the prosecution but also due to weak investigationand delaying trial and the way the trial is conducted in the Criminal Court.
20 Maldives Police Service in 2010:A Snapshot.
21 United Nations Development Programme in the Maldives and the Government of Maldives, Prison Assessment andProposed Rehabilitation and Reintegration of Offenders Report, above n 19.
22 Maldives Police Service in 2010:A Snapshot, above n 20.
23 Capacity Development Needs Assessment of the Prosecutor Generalʼs Office of the Republic of M aldives (2008), para
24.1.
24 Ibid.
25 Adam Haleem,“
Jinaaee bodethi massala thakuge sharuee maruhalaagai hekibas nulibeythee varah kan boduvey:PG［We
are deeply concerned over the lack of evidence presented during trials over serious criminal offences:PG］”Haveeru
Online (2 February 2010) www.haveeru.com.mv/dhivehi/news/86164>.
26 Capacity Development Needs Assessment of the Prosecutor Generalʼs Office, above n. 23, at para 21.1.

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It has to be noted that the M PSʼ
s Forensic Science Department has now been awarded an International Standard of Organization (ISO)certificate and this will help the shift in reliance on confessional
evidence to that of establishing an evidence-based system of criminal investigation. Further, in July2010 the MPS established a separate forensics building,which houses modern technologies for forensic
investigations. On the other hand, as the MDN noted there remains room for skepticism about the
M PSʼ
s ability to effectively deploy their new forensic tools and the judiciaryʼs capacity to engage withforensic evidence.27
5. Inadequate Evidence Act
The Evidence Act28 is inadequate to deal with evidence issues. This Act comprises only the basic
provisions and does not address many of the requisites in this area including the issue of admissibility,
the probative value of evidence from different sources and the concept of illegally obtained evidence.29

V. POSSIBLE SOLUTIONS(1)Enact the new draft Penal Code pending before the Parliament without further delay and ensurethat the new Penal Code is fully consistent with international standards;(2)Amend the Police Act, as it came into force before the current Constitution;(3)Expedite efforts to enact the Criminal Procedure Bill,the Witness Protection Bill and the Juvenile
Justice Act;
(4)Provide further legal and practical training and education for judges and prosecutors and provide
judges and prosecutors with the possibility to observe how trials are conducted in other common law
countries;(5)Amend and enact a uniform Evidence Bill adding a provision which allows and regulates admissibility of confessions and provision on effective collection and utilization ofevidence in criminal cases.
The Bill also needs to add a provision on the basis for excluding involuntary or improperly obtained
confessions;(6)Reform investigation practices by reviewing and adopting interrogation rules and make video
recordings of interrogations mandatory and introduce safeguards to the legal rights of suspects and theintegrity of the process. In addition, all custodial interviews and interrogations of suspects should bevideotaped with an equal focus on suspects and interrogators;(7)Develop procedures for crime scene examination, collection and protection of evidence;(8)As effective utilization of evidence at trial can help to convict the offender it is therefore very
important that police know how to manage crime scenes and collect evidence effectively.Such evidence
should be protected and preserved.

VI. CONCLUSION
According to the police reports many serious criminal cases,even when investigated by the seniorpolice officers, are only capable of being solved by means of a confession from the accused.As noted
before, serious criminals abuse the right given in art 52 and purposefully admit to the police during
investigation to escape convictions as they know the courts do not admit confessions unless madebefore the court. As the M aldives is concerned about the recent rise in crime and the inability tosuccessfully prosecute criminals, the Maldives needs to limit art 52 of the Constitution.
In general, some very important steps have been taken over the recent years to reform criminal
27 M aldives Police Service in 2010:A Snapshot, above n. 20.
28 Evidence Act (Law Number 24/76)(M V).
29 Attorney Generalʼs Office, Maldives, National Criminal Justice Action Plan 2004-2008 (2004)at 12.

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justice in the M aldives. However specific steps have not been taken to move to an evidence-based
system.As a result,so far veryfew suspects have been convicted among those involved in serious cases,
most notably homicide cases.This can only be achieved by reforming the countryʼ
s existing legislation,
strengthening relevant institutions and enacting important bills aimed to respond to crime.Especially,as the M aldives is moving from a confession-based to an evidence-based system, it is therefore vitalthat the Maldives have an Evidence Act without further delay.
To address the low conviction rate and the issue of offenders abusing art 52 as a way to escapeconviction,it is therefore vital to narrow the right stipulated under art 52.It is also a responsibility ofthe police, working along with the prosecution and judiciary, to protect the people, to investigate
criminal offences and collect evidence that may be later utilized at trial.

76THE CRIMINAL JUSTICE SYSTEM IN MALDIVES
Abdulla Shatheeh and Mahmood Saleem

I. INTRODUCTION
In M aldives after notice of an alleged offence has been brought to the attention of the investigating
authorities, the matter shall be investigated promptly, and where warranted, the Prosecutor Generalshall lay charges as quickly as possible.Article 51(b)stipulates that everyone charged with an offence
has the right to be tried within a reasonable time.1

II. INVESTIGATION
A. The M aldives Police Service
The Maldives Police Service as the principal law enforcement agency derives its powers from the
Police Act 2008.2 Under the Police Act,the police force is recognized as a civil organization.3 Prior to
September 2004,the National Security Service(NSS)was mandated with policing in the M aldives.The
NSS had both a policing branch and a military branch. Both branches were given the same initial
military-style training,with very little focus on community orientation.4 The M PS has to build a good
professional working relationship with agencies in the criminal justice system to promote and develop
police service in the Maldives and to prevent homicide and other crimes.
B. Forensic Science Department
The M PSʼs Forensic Science Department has been awarded the International Standard of Organization (ISO)certificate. This will help the shift in reliance on confessional evidence to that ofestablishingan evidence-based system of criminal investigation. In July 2010 the M PS established a separate
forensics building, which houses modern technologies for forensic investigations. However, as the
M aldivian Democracy Network (MDN) stated, there remains room for skepticism about the MPSʼsability to effectivelydeploytheir new forensic tools and the judiciaryʼs capacityto engage with forensic
evidence.5
C. Community Policing
In the M aldives community policing efforts also increased in recent years,with the police working
with the youth, community elders, students, parents and even gang members to prevent and reduce
crime levels. The MPS approach to community policing is focused more on being proactive in crime
reduction rather than investigations or prosecutions.6
Community policing focuses more on the increase in gang-violence which is also related to a large
extent to drug trafficking.According to the M DN,the MPS has taken some proactive steps to reducegang-related crimes through a community policing philosophy.Among the proactive steps used include
Chief Inspector of Police, Head of Fraud and Financial Crime Department, M aldives Police Service, Republic of
Maldives.
Assistant Public Prosecutor, Head of Prosecution Department, Prosecutor Generalʼs Office, Republic of Maldives.
1Constitution of the M aldives 2008, art 51 (b).
2Police Act 2008 (Law Number 05/2008)(M V).
3Police Act 2008, s 5.
4M PS,Statistical Report 2010,(27 April 2011) http://police.gov.mv/>,M DN,M aldives Police Service in 2010:A Snapshot
www.mvdemocracynetwork.org/maldives-police-service-in-2010-a-snapshot/>.
5M aldives Police Service in 2010:A Snapshot, above n 4.
6M aldivian Democracy Network, Community Policing in the M aldives, (5 May 2010) www.mvdemocracynetwork.org/
community-policing-in-the-maldives/>.

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engaging with elders and businessmen in local communities where gangs are resident.7
According to the M DN,attempts to talk with and engage gang leaders themselves and try to reduce
crime through dialogue and positive relationships have proven to be effective with at least one Maleʼgang which has been remarkably quiet since the engagements took place. The M DN also noted thatwhether this approach fits the theoretical description of community policing is open for debate.
However the MPS officials insist that it does,and if it helps reduce crime,not many will complain orcare either way.8
Another approach of community policing recently used by the MPS in both Maleʼand the Atolls tocombat gang crimes has been to involve local youth and even gangs themselves in sports events withthe police.According to the M DN football matches and other such events have proven to be effective
tools in building trust and respect between law enforcement officials and local youth.9
D. Crime Prevention Committees
The M PS has setup Crime Prevention Committees in all Atolls of the country with varying degrees
of success.The aim of the Committees is to bring together community leaders and the police to comeup with community-based approaches to crime prevention.10
E. Institute for Law Enforcement and Security Studies (ILESS)The Maldives Police Service Institute for Law Enforcement and Security Studies undertakes
courses and programmes that will ensure that members of the MPS and other law enforcement officers
undergo required training.
F. Other Investigating Agencies
There are other agencies responsible for criminal investigation. The following are the agencies
which have power to conduct criminal investigation and their field of investigation.
1. Anti-Corruption Commission
Section 21 (a)of the Anti-Corruption Commission Act (Law no:13/2008)states that “to inquire into
investigate all allegations of corruption;any complaints, information or suspicion of corruption must11
be investigated.”
2. M aldives Customs Service
Under s 88(b)of M aldives Customs Act,(Law no:8/2011)Customs can investigate cases of unlawful
smuggling in and out of Maldives and can forward these cases to the Prosecutor General for prosecution.
3. The Police Integrity Commission
Under the Police Act 2008,an independent Police Integrity Commission (PIC)has been established.12
The PIC is vested with the powers to monitor the code of conduct of the police and take measures tocurb any conduct that could pave the way to corruption and/or misconduct.
In s 19 of the Maldives Police Act, it is the objective of PIC to independently investigate unlawful
activities occurring within the police and take actions as mentioned in the Law.
According to the M DN the establishment of the Police Integrity Commission further helped tostrengthen the publicʼ
s confidence in the police. However the police have been finding it difficult tomaintain this confidence, with the crime rates increasing and conviction rates for high profile cases
remaining very low.This apparent inability of the police to clampdown on increasingly brazen acts of
7Ibid.
8Ibid.
9 Ibid.
10 Maldives Police Service in 2010:A Snapshot, above n 4.
11 AntiCorruption Commission Act (law no:13/2008).
12 Police Act 2008, s 18.

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gang crime has put further pressure on public confidence.13
Apart from the PICʼs power to investigate cases and submit to the PGO to take legal action it has
to be noted that the decisions and actions taken by the PIC are not binding and are merely submitted
to the Minister for Home Affairs for further action. It seems the PIC is more of an advisory body.
Therefore, the Parliament should pass the Police Integrity Commissionʼs bill14 giving the PIC morebinding powers to carry out its work in order for its full effect to be realized.
4. M aldives Inland Revenue Authority
Under s 30 of the Tax Administration Act (Law no:3/2010),the M aldives Inland Revenue Authority
has the power to audit and investigate cases regarding taxation.15
G. Investigative Procedure (MPS)
It is stipulated in art 46 of the Constitution of the M aldives that no person shall be arrested ordetained for an offence unless the arresting officer observes the offence being committed, or has
reasonable and probable grounds or evidence to believe the person has committed an offence or isabout to commit an offence, or under the authority of an arrest warrant issued by the court.
Under art 47 of the Constitution no person shall be subject to search or seizure unless there isreasonable cause.Residential property shall be inviolable,and shall not be entered without the consent
of the resident,except to prevent immediate and serious harm to life or property,or under the express
authorization of an order of the court.
According to art 48 of the Constitution everyone has the following rights on arrest or detention:(a)To be informed immediately of the reasons therefore,and in writing within at least twenty fourhours;(b)To retain and instruct legal counsel without delay and to be informed of this right,and to haveaccess to legal counsel facilitated until the conclusion of the matter for which he is under arrest
on detention;(c)To remain silent, except to establish identity, and to be informed of this right;(d)To be brought within twenty four hours before a judge who has power to determine the validityof the detention, to release the person with or without conditions, or to order the continued
detention of the accused.
Article 49 of the Constitution provides that no person shall be detained in custody prior to sentencing,unless the danger of the accused absconding or not appearing at trial,the protection of the public,or potential interference with witnesses or evidence dictate otherwise. The release may be subject toconditions of bail or other assurances to appear as required by the court.
The maximum period of detention varies with each offence and is at the discretion of the judge.In
some cases a suspect is detained until the investigation or trial is complete.
Interviews of suspects are recorded under r 101 of Police Regulation.Audio recordings are compulsory while video recordings are optional.In some cases these recordings are submitted to trials but it
is not used as a confession/statement.
Right to legal counsel is provided at all stages ofthe investigation and trial as a constitutional right.
After conducting interviews and suspectʼs oral statement,reports are prepared by the investigators.
13 M aldives Police Service in 2010:A Snapshot, above n 4.
14 Police Integrity Commissionʼs Bill (2011)(M V).
15 Tax Administration Act (law no:3/2010).

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The suspect is given the opportunity to confirm and correct mistakes in such documents.
During the investigative process,if the need arises to search a home/building/communications of asuspect,if permission is denied by the owners,police shall get a court order or warrant,in order to doso.

III. PROSECUTION
A. The Prosecutor Generalʼs Office
As part of the recent reforms to the criminal justice system,an independent Prosecutor General(PG)
is appointed.The Prosecutor Generalʼs Office (PGO),as an independent institution was created by the
new Constitution and came into being from 7 September 2008.
The PGO derives its Constitutional independence from art 220 of the Constitution. Article 220 (a)states that “There shall be an independent and impartial Prosecutor General of the Maldives”.16 It
further states that:
The Prosecutor General is independent and impartial,and he shall not be under the direction orcontrol of any person or authority in carrying out his responsibilities and the exercise of his
powers. He shall carry out his responsibilities and exercise his powers without fear, favour or
prejudice,subject only to the general policy directives of the Attorney General,and on the basisof fairness, transparency, and accountability.17
The responsibilities and powers of the PG are contained in arts 223 to 229,inclusive.18 The PG has
the power to order investigations,monitor detentions,lodge appeals and review existing cases.The PG
of M aldives is appointed by the President and has to be approved by the Parliament. In addition,theProsecutor Generalʼs Act19 specifies how the Prosecutor General should be appointed, as well as the
responsibilities, powers and qualifications of the PG.
The Attorney General is mandated to issue general directives to the PG on the conduct of theprosecutions.20 However,art 220(c)states the independence and the impartiality of the PG who shall befree from direction or control of any person or authority in carrying out his functions.21
B. Advocacy Skills and Performance
According to the Capacity Development Needs Assessment of the Prosecutor Generalʼs Office of the
Republic of M aldives Report 2008 at the time of the assessment advocacy skills were at basic levels andpreparation was not always thorough.The Report noted that confidence in the way in which cases arehandled will grow when greater experience and expertise is demonstrated in court. The Reportemphasized that the quality of dispatch and the delivery of casework in court should be uppermost in
the minds of the PGO.22
Some locals as well as some members of the Parliament have been criticizing the performance of
the PGO due to losing serious criminal cases including homicide cases. The Maldivian Democratic
Party MP, Ahmed Rasheed said that the hard work of the police to prove the charged guilty fails
because of the inexperience of the prosecutors.23

16 Constitution 2008, art 220 (a).
17 Article 220 (c).
18 Articles 223 -229.
19 Prosecutor Generalʼs Act (Law Number 9/2008)(M V).
20 Constitution, 2008, art 133(g).
21 Article art 220(c).
22 Capacity Development Needs Assessment of the Prosecutor Generalʼs Office of the Republic of Maldives (2008),at para

21.1.
23 Abdul Latheef “
Policeʼs work to prove the charged guiltyfails because ofinexperienced state lawyers-Ahmed Rasheed”
Miadhu (online ed, Maldives, 15 April 2011)at http://www.miadhu.com/2011/04/local-news/police%e2%80%99s-workto-prove-the-charged-guilty-fails-because-of-inexperienced-state-lawyers-ahmed-rasheed/>.

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Rasheed noted that those prosecutors assigned by the PGO to represent the State in trials of
criminal prosecution are mostly very young, inexperienced and naive. “As a result of this, it is24
saddening to say that, those charged with dangerous criminal offences are acquitted.”
However this research showed that the higher number ofacquittals is not onlydue to the ineffectiveness of the prosecution but also due to weak investigation and delaying trial and the way the trial
conducted in the Criminal Court.
It is important to note that the advocacy issue is systemic and rooted in the qualification process
which does not require advocacy training to be undertaken by a graduate ― after a law degree orsimilar qualification an application to the Attorney General Office is made for a practicing certificate,
which if granted allows the lawyer to practice in court without any advocacy training.25
The Constitution stipulates that the responsibilities and powers of the PG may be assigned with his
express instructions, to any person working under his mandate or to any other person.26 The purposeof these provisions may be due to lack of capacity and currently the PGO is working with this system.
Allowing prosecutors to prosecute in the court who have not got proper advocacy training will impact
on institutional performance.Therefore it is important to take corrective measures instead of sticking
on the current system.According to the Report,the evidence points to the need for the change current
system.27
Unlike before, prosecutions are now based on use of evidence of a forensic nature, changes to thecriminal procedure rules and upcoming Penal Code, Criminal Procedure Code and Evidential Act
points to a need to raise capacity of the PGO to be prepared for the changes.28
Therefore the PGO needs to train prosecutors to provide them with the skills, knowledge and theexpertise to enable them to perform their roles better to deal with crimes, most notably homicide.
C. Departments
Currently the PGO has a general department to deal with all sorts of crimes known as the Public
Prosecution Department. Due to crime patterns and available resources, the PGO needs to consider
establishing a drug-related offence department, a serious and organized crime department and awitness and victim protection department in order to place more focus on homicides and issues whichhave an impact on homicide.
D. The PGO, the MPS and the Courts
This research shows that in most cases the PGO and the MPS have a positive and cordial working
relationship.Periodic conversations have been held between the two institutions.However the courts,
especially the Criminal Court,are far from such approach.However the PGO and the Criminal Court
have some sort of mutual understanding while the Police and the Criminal Court have been criticizing
each other through public media recently.The PGO and the MPS have recently introduced a partnership approach in complex cases most notably homicide cases,working together to build cases together
or where the police seek advice from the PGO at an early stage in the case.29
Therefore there is a need to set up a formal institutional mechanism among the PGO,the M PS andthe courts through which investigation and prosecution issues and delay reduction can be discussed andcorrective action be taken. In addition such a mechanism would help to close doors for those who
escape from the system without paying the price for the crime committed.

24 Ibid.
25 Capacity Development Needs Assessment of the Prosecutor Generalʼs Office, above n. 22, at para 21.2.
26 Constitution 2008, art 224.
27 Capacity Development Needs Assessment of the Prosecutor Generalʼs Office, above n. 22, at para 21.2.
28 Ibid. at 21.4.
29 Ibid. at 13.1.

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IV. JUDICIARY
In this section the main focus will be drawn on the present setup of courts for the administration of
criminal justice in the M aldives.
A. An Introduction to the M aldivian Court System
In the current M aldivian court system,the judicial power is vested in the Supreme Court,30 the High
Court31 and lower courts established by the Judicature Act32 of the M aldives,and any other statute.33
According to the Judicature Act of Maldives,the M aldives Court system is made up of three levels:theSupreme Court,the High Court and the lower courts including the superior courts and the magistrate
courts.
Under the Constitution,judges of the Supreme Court,including the Chief Justice,are appointed by
the President in consultation with the Judicial Service Commission and confirmation of the appointee
by a majority vote of the Parliament.34 The appointments and removal of all other judges are entrusted
to the Judicial Service Commission set up pursuant to art 157 of the Constitution.35
Superior Courts are first instance courts created under the Judicature Act in the upper category of
the lower courts. Maleʼhas five specialized first instance courts namely:the Civil Court, the Family
Court, the Criminal Court, the Juvenile Court and the recently established Drug Court. The lower
category of courts created from within the lower courts is the magistrate courts created under the
Judicature Act.
B. Large Scale Acquittals
This research shows that large scale acquittals of heinous and ghastly offences including homicides
are eroding peopleʼ
s faith in the effectiveness of the criminal justice system.According to the Criminal
Court, apart from delays, not getting assistance and protection to the courts as required under theConstitution,36 failure to enforce sentences and lack of important legislation are major reasons for thelarge number of acquittals.37
Despite this,it is crucial that the Criminal Court,the Juvenile Court and the Magistrate Courts must
respond to societyʼs call for justice and punish the guilty by a proper and judicious approach even withthe difficulties it faced.
C. Delay in Disposal of Cases and Arrears in Courts
It is in the interests of the people as well as the State that the cases sent to the courts for
adjudication should be decided within a reasonable time. Under art 51 of the Constitution everyone
charged with an offence has the right to be tried within a reasonable time.38 If the course of trial isinordinately long,the chances of miscarriage of justice are more and expenses of adjudication increase
as well.This has subjected the M aldives criminal justice system to severe strain.It has also shaken theconfidence and faith of the people in the efficacy of the courts.
The impact of delay in trials includes loss of important evidence,because of fading of the memoryor the death of witnesses.In addition there are also possibilities of the material witness succumbing toundue pressure and being won over, if there is a long time lag between the actual occurrence and thedate of recording of their deposition in the Court.It is therefore essential,so far as criminal cases areconcerned, that the delay in their disposal be eliminated as far as possible.

30 Constitution 2008, art 145.
31 Article 146.
32 Judicature Act (Act No:22/2010)(M V).
33 Constitution 2008, art 141.
34 Articles 147 and 148.
35 Article 157.
36 Constitution 2008, art 141 (d).
37 HRCM, Report on Causes for Increase in Incidents of Crime (2009).
38 Constitution 2008, art 51 (b).

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According to the Report on Capacity Development Needs Assessment of the Prosecutor Generalʼs
Office there is structural,endemic and systemic delay in the system.It noted that delay takes place at
different stages in the process. It can classified them as at the investigation stage, post investigation
when the case is received by the PGO, post registering of the case, during the hearing phase, no casemanagement systems.39 The low number of judges compared to the number of cases,absence ofdefence
counsel,unnecessary adjournments,absence of witness,the absence of prosecutors,failure to examine
witnesses though present in the Court, absence of day-to-day hearing and delay in delivery of judgements are all causes which lead to delay in criminal cases.Another cause for delay in the disposal ofcases is procedural delays.The rules governing criminal procedure in the Maldives are currently basedon a number of regulations and circulars that came into force prior to the criminal justice reform in
the country. Therefore they are out of date and inadequate.
The right to speedy trial is an essential part of the fundamental rights enshrined in the Constitutionof the Maldives.The Constitution provides that after notice of an alleged offence has been brought tothe attention of the investigating authorities, the matter shall be investigated promptly, and where
warranted, the PG shall lay charges as quickly as possible.40. As mentioned before it also afford thedefendant a trial within a reasonable time.41
The Report also noted ways in which delays can be managed. It stated that some of these can be
managed in the short term and others require long-term consideration.42 According to the Report,thecurrent practice is to send back cases which need further investigation, or which are incomplete or
require correction, to the M PS so that the gaps can be filled in terms of documentation and further
investigation. The Report recommended to set up with the police a formal institutional mechanism
through which day-to-day prosecution issues, file content, delay reduction, etc., can be discussed andcorrective action taken.43
As the Report stated,a way which will help cut out delay may be for the PGO and the police to train
the police on file preparation and content or have a senior prosecutor stationed at the M PS to carryout those functions in the MPS before cases are sent to the PGO.44
According to the Report, the delay in hearing cases is also because of listing and schedulingpractices in the criminal justice system. As the Report stated, the current system of scheduling cases
is “court-centric”not “user-centric”. The current system is based on the benefit and the working
practices of the Court and the individual administrative practices ofjudges managing their own cases.45
The Report also noted that the current case scheduling system is adversely affecting the efficiency of
the PGO in terms of how staff is deployed.According to the Report,often,the Criminal Court does not
inform the PGO about “cancelled”cases until the prosecutor arrives at the Court. This wastes theprosecutorsʼtime, preventing them from carrying out other duties that day.46
The Criminal Court has no case management system. The Report suggests that only upon the
defendant entering a not guilty plea should a case be scheduled for trial. The Repot recommends the
PGO to lobby for formal case management hearings ― if defendants wish to enter a guilty plea theyshould be allowed to do so at an early stage.47
The Criminal Court also has no practice of continuous hearings.As a result cases have to be listed
many times.The Report noted that block hearings are also affecting the efficiency of the PGO in that
greater demand is made on the number of prosecutors and the number of times they have to cover one
case.Due to this,witnesses are left in uncertainty and may lose interest in the case and the opportunity
39 Capacity Development Needs Assessment of the Prosecutor Generalʼs Office, above n. 22, at 25.1.
40 Constitution 2008, art 50.
41 Article 51(b).
42 Capacity Development Needs Assessment of the Prosecutor Generalʼs Office, above n. 22, at 25.1.
43 Ibid, at Recommendation 4.
44 Capacity Development Needs Assessment of the Prosecutor Generalʼs Office, above n. 22, at 25.2.
45 Ibid. at 25.3.
46 Ibid.
47 Capacity Development Needs Assessment of the Prosecutor Generalʼs Office, above n. 22, Recommendation 12.

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for a defendant to intimidate or influence the witness is greater.In addition,the continuity of prosecutor may not always be possible because of operational reasons in the PGO.Therefore the PGO needs
to lobby for continuous hearings. This will help cutting out unnecessary hearings allowing the Court
and the PGO to carry out other duties.48
Adjournments appear to be very common for a variety of reasons in the court.As the Report noted
often witnesses or defendants either do not attend or are not produced by the DPRS and the MPS.
There are obvious difficulties for defendants and witnesses who travel from the islands due to thegeographical nature of the country. Apart from institutional deficiency, transportation cost, affordability and climate have a direct bearing on the efficiency of the Court.49
In instances where witnesses and defendants do eventually attend, there is further pressure on thesystem to deal with the cases,and this creates last minute and urgent demands upon the PGO to provide
a prosecutor to cover that case. Due to this, prosecutor may be dispatched to cover the case on short
notice, inevitably affecting performance for lack of preparation.50 According to the Report there wasevidence that it is not unusual that as many as 50 per cent of the hearings listed for a day result in
adjournments.The Report recommends need for a “user-centric”instead a “court-centric”scheduling/
listing practices (set joint targets to reduce adjournments).51

V. JUDICIAL SERVICE COM MISSION
The Judicial Service Commission (JSC) is an independent institution established on 4 September
2008. The JSC is empowered to investigate complaints about the judiciary and to take disciplinary
action,including recommendations for dismissal,to make rules regarding schemes for recruitment andprocedures for the appointment of judges,to establish ethical standards for judges,to provide for suchmatters as are necessary or expedient for the exercise, performance and discharge of the duties andresponsibilities of the Commission, and to advise the President and the Parliament on any matter
regarding the administration of the courts.
To date,due to its composition52 and their political affiliation,the JSC seems to be very ineffective,
In addition, recently its orders have been stopped by the courts.This shows that the JSC is incapableof carrying out its functions due to the courts intervention to its works.
As the HRCM noted,the JSC is constantly being accused and criticized by media and NGOs as wellas persons within the judiciary for failing to work towards the independence of the judiciary,and forits lack of proper procedure and transparency.53

VI. DEPARTM ENT OF PENITENTIARY AND REHABILITATION SERVICES
Prisons in the M aldives are operated by the Department of Penitentiary and Rehabilitation Services(DPRS)under the M inistry of Home Affairs.In the Maldives one of the main reasons of the recent highcrime rate and homicide rate is due to failure to enforce sentences for convicts.The Report on Causes
for Increase in Incidents of Crime54 noted that failure to enforce sentences for more than 500 convicts
loose in society was among the main reasons for the rise in criminal activity in the Maldives.Criminals
who were sentenced to life imprisonment for murder are also seen roaming the streets.In addition,the
DPRS is recently not following court orders,which has reached a very alarming magnitude.According
to this research the DPRSʼ
s ineffectiveness is due to a shortage of human resources,inadequate prison
facilities, funding and strategic action plans.

48 Ibid, Recommendation 13.
49 Capacity Development Needs Assessment of the Prosecutor Generalʼs Office, above n. 22, at 25.6.
50 Ibid.
51 Capacity Development Needs Assessment of the Prosecutor Generalʼs Office, above n. 22, Recommendation 14.
52 Constitution 2008, art 158.
53 ISSUES FOR CONSIDERATION WHEN COMPILING THE LIST OF ISSUES on the Initial Report of M aldives underthe International Covenant on Civil and Political Rights (May 2011)at 23.
54 HRCM, Report on Causes for Increase in Incidents of Crime (2009).

84155TH INTERNATIONAL TRAINING COURSEPARTICIPANTSʼPAPERS
Former President ofthe HRCM said that the operations ofthe DPRS,which is tasked with enforcing
prison sentences, have deteriorated. He also said that the main national prison, in Maafushi, waseffectively under the control of the inmates.55
Prison reports heavily criticized the Government for the ineffective detention facilities for juveniles
as they found that juveniles were held in same cells as adult prisoners.56 However the Government isrecently taking steps to hold juveniles in separate detention facilities.
A Report on prison conditions, published by the Human Rights Commission of the M aldives(HRCM )in January 2007, noted that conditions in the prisons are generally poor.However comparedto January 2007, the whole prison environment is being improved under good supervision of prison
officers.The DPRS has managed to establish a good prison system between 2006 and 2008.Due to theabsence of prison legislation and a strategic action plan to sustain the existing capacity and prison
system, the whole prison system collapsed in March 2009.57
The Prison Assessment and Proposed Rehabilitation and Reintegration of Offenders Report has
made a number of recommendations to address prison problems in the Maldives. The Report recommends strengthening the infrastructure and capacity building of prison staff and management.58 It also
recommends strengthening the database and documentation of records maintained by the DPRS.
According to the Report the DPRS will need to keep adequate data on arrests and releases,re-offenders
and the escaped and escapees in a properly managed database. In addition, the inclusion of theoffendersʼfingerprints in the system could also be effective for monitoring purposes.59 Furthermore it
recommends establishing rehabilitation programmes in prisons.60
According to the Report information sharing,storing and collecting is in dire need of reform.The
data collected from the AGO, the PGO, the M PS, the Criminal Court and the DPRS reveals that, themethod in which criminal databases are maintained and the manner in which criminal data is reported
differ significantly and are thus deeply flawed.61 The Report also noted that the existing parole system
lacks properly formulated procedures, transparency as well as adequate monitoring of parolees.62
The Maldives is also taking steps to improve prisons and its facilities, although these steps arehindered by significant capacity constraints. Draft Prison Rules are currently under development toimprove prison conditions. In addition, the Prison and Parole Bill, is believed to be an important
instrument in improving the current situation in prisons. This bill is expected to modernize andrationalize the prison system, placing a higher emphasis on rehabilitation.

VII. PARLIAM ENT
According to the Constitution “The legislative authority of the Maldives shall be vested in the
Peopleʼs Majlis［Parliament］.”63 The Parliament has the power to amend the Constitution, enact
legislation and amend or repeal any laws.
Under art 92 of the Constitution “
A Bill passed by the Peopleʼ
s Majlis shall become law when
accented to by the President”.64 However works within the Parliament are believed to be to be chaotic
55 “Urgent action needed to combat rising crime, says HRCM ”Minivan News (online ed, M aldives, 1 April 2009), seewww.asiapacificforum.net/news/maldives-urgent-action-needed-to-combat-rising-crime-says-hrcm.html>.
56 Republic of Maldives, Common Core Document, Forming Part of the Reports of States Parties (16 February 2010),

http://www.ccprcentre.org/doc/HRC/Maldives/HRI.CORE.M DV.2010 en.pdf>.
57 Ibid.
58 United Nations Development Programme in the Maldives and the Government of M aldives, Prison Assessment andProposed Rehabilitation and Reintegration of Offenders Report (2011)at Recommendation 10 at 27 http://www.undp.org.
mv/v2/publication files/4e649d60b9b4a.pdf>.
59 Recommendation 7 at 26.
60 Recommendation 4 at 26.
61 Ibid. at 19.
62 Ibid.
63 Constitution 2008, art 70.

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to the point of stalemate,due to political divergences and to the fact that most of the members are nottrained in parliamentary work.There is complete lack of will among the members towards their work,and this amounts to a severe shortcoming of the parliamentary system.
The HRCM member Abdul Kareem said the Parliament should give due consideration to the HRCM
reports by debating them on the Parliament floor:“Every time someone is knifed on the street, Majlis
goes into alert. They will have debates and petitions will be submitted. But it will fade away after a few
65days and nothing is done.”The criminal justice system would not be efficient without the support of the Parliament.There are
a number of bills regarding the criminal justice system which are yet to be passed by the Parliament,such as the Penal Code Bill,Evidence Bill, Legal Aid Bill,Juvenile Justice Bill and Prison and ParoleBill.

64 Article 92.
65 “Urgent action needed to combat rising crime, says HRCM ”Minivan News (online ed, M aldives, 1 April 2009), at

http://www.asiapacificforum.net/news/maldives-urgent-action-needed-to-combat-rising-crime-says-hrcm.html>.

86

CRIMINAL PROCEDURE IN THAILAND
Bhornthip Sudti-Autasilp and Unchalee Kongsrisook

The criminal procedures in Thailand are governed by the Criminal Procedure Code B.E.2477(1934).
This paper is divided into three parts. The first and second parts describe the process of investigationand trial in accordance with the Criminal Procedure Code by elaborating the important sections in thecriminal proceedings. The third part is the summary of the criminal procedure in Thailand.

I. INVESTIGATION
A. Agencies and Organizations Responsible for Criminal Investigation
1. Administrative or Police Official:［The Criminal Procedure Code Section 2］“Investigation”means collection of facts andevidence which was conducted by administrative or police official under his power and duties
in order to maintain public order and to obtain details of a commission of offence.
［The Criminal Procedure Code Section 2］“Administrative or Police Official”means an
official vested by law with power and duty to maintain public order; this shall include awarden, an official of Excise Department, Customs Department, Harbor Department, animmigration officer and other officials when acting in accordance with arresting or suppressing law offenders whom they have duty to arrest or suppress.
［The Criminal Procedure Code Section 17］An administrative or police official shall have thepower to investigate any criminal matters.
2. Special Case Inquiry Official:
One mission of the Department of Special Investigation (DSI),M inistry of Justice is prevention andcontrol of crime that has a devastating impact on the economy, social security, and international
relations.
［The Special Case Investigation Act B.E. 2547 (2004)(Amended by the Special Case Investigation Act (No.2) B.E. 2551 (2008)］［Section 21］Special Cases required to be investigated and examined according to this Act are
the following criminal cases:(1)Criminal cases according to the laws provided in the Annex attached hereto and in theministerial regulations as recommended by the BSC where such criminal cases shall have anyof the following natures:(a)It is a complex criminal case that requires special inquiry, investigation and special
collection of evidence.
(b)It is a criminal case which has or might have a serious effect upon public order and moral,
national security, international relations or the countryʼ
s economy or finance.
(c)It is a criminal case which is a serious transnational crime or committed by an organizedcriminal group.
(d)It is a criminal case in which influential person being a principal, instigator or supporter.
(e)It is a criminal case in which the Administrative Official or Senior Police Officer, who isneither the Special Case Inquiry Official nor Special Case Officer, is the suspect as there is
Chief Research Judge of the Supreme Court, Thailand.
Forensic Scientist, Central Institute of Forensic Science, M inistry of Justice, Thailand.

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reasonable evidence of crime committed, or being the alleged culprit, or being the accused.
This however shall be in line with details of the offence provided by the BSC.
［Laws Provided in the Annex Attached to the Special Case Investigation Act B.E. 2547
(2004)］
1. Law on Loan Amounting to Public Cheating and Fraud
2. Competition Act
3. Commercial Banking Act
4. Law on the Finance Business Securities Business and Credit Foncier Business5. Chain Loan Control Act
6. Foreign Exchange Control Act
7. Law on Government Procurement Fraud
8. Act for the Protection of Layout-Designs of Integrated Circuits
9. Consumer Protection Act
10.Trademark Act
11.Currency Act
12.Tax and Duty Compensation of Exported Goods Produced in the Kingdom Act
13.Interest on Loan by the Financial Institution Act
14.Bank of Thailand Act
15.Public Company Act
16.Anti M oney Laundering Act
17.The Industrial Product Standard Act
18.Copyright Act
19.Board of Investment Commission Act
20.Enhancement and Conservation of National Environmental Quality Act
21.Patent Act
22.Security and Exchange Commission Act
23.Revenue Code
24.Customs Law
25.Excise Law
26.Liquor Act
27.Tobacco Act
28.Foreign Business Act
29.Casualty Insurance Act
30.Life Insurance Act
31.Law on Agricultural Futures Trading
32.Computer Crime Act
33.Land Law
34.Forest Law
35.National Park Act
36.National Reserved Forest Act
37.Wildlife Preservation and Protection Act
B. Public Prosecutor［The Criminal Procedure Code Section 2］“Public Prosecutor”means an official who has aduty to prosecute an alleged offender in court;a public prosecutor can be either a government
official in the Office of the Attorney General or other officials authorized to act in the samemanner.
The public prosecutor will have the power to conduct their own investigations when;［The Criminal Procedure Code Section 20］In case that an offence punishable under Thai law
was committed outside the Kingdom of Thailand,the Attorney General on his surrogate shallbe the responsible inquiry official; the Attorney General may delegate such duty to any publicprosecutor or inquiry official to conduct inquiry on his behalf, if he so chooses.
In case that the Attorney General or his surrogate assigns an inquiry official the responsibility

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to conduct an inquiry, the Attorney General or his surrogate may assign a public prosecutor
to join in conducting such inquiry, if he so chooses.
A public prosecutor assigned to be a responsible inquiry official or to join an inquiry official
in conducting an inquiry shall have the power and duty in such inquiry as does an inquiry
official. However, other powers and duties as prescribed by law shall be of such publicprosecutor.
In case that a public prosecutor joins an inquiry official in conduct an inquiry, the inquiry
official shall comply with orders and recommendations given by the public prosecutor whenthe matter is related to the collection of evidence.
C. Investigative Procedure［The Criminal Procedure Code Section 130］The proceedings of an inquiry shall be commenced without delay and also be conducted at any time and place as deemed appropriate,and thealleged offender is not required to be present.
1. Gathering Evidence:［The Criminal Procedure Code Section 131］The inquiry official shall gather all types ofevidence as possible in order to know the facts and other circumstances concerning the offence
alleged, and to find out who the offender is and prove his guilt or innocence.
［The Criminal Procedure Code Section 131/1］In the case that scientific evidence is requisite
for proving the facts under Section 131, the inquiry official is empowered to examine any
persons, objects or documents by scientific means［The Criminal Procedure Code Section 150］In case that a postmortem examination shall be
conducted, the inquiry official of the locality in which the corpse is found and a physician
specialized in forensic medicine who has received a certificate or an approval letter from theMedical Council shall conduct the examination as soon as possible.
［The Criminal Procedure Code Section 132］For the purpose of gathering evidence, theinquiry official is empowered to do the following:(1)to examine the injured person with his consent, or the alleged offender, or any things orplaces which may be adduced as evidence, including taking a photograph, drawing a map or
sketch or creating a mould or taking a finger-print, hand-print or foot-print as well as
recording any details which may be used to prove the case clearly;
In the inspection of the injured personʼ
s body or the alleged offenderʼs body according to thefirst paragraph, if the injured person or the alleged offender is female, the inspector shall bea female official or any other women.In the case where appropriate,the injured person or the
alleged offender may request for the attendance of any persons requested in such inspection;(2)to search for an article of which its possession constitutes an offence;or which is obtainedby committing the offence;or used or suspected of having been used for the commission of theoffence,or may be used as evidence,but execution under this paragraph shall comply with theprovision on search under this Code;(3)to issue a summons to a person who possesses any articles which may be used as evidence.
However,such person needs not to come in person and shall be deemed to have complied witha summons if the article required therein is delivered;(4)to retain all the articles found or delivered as provided in sub-sections (2)and (3).
［The Criminal Procedure Code Section 133］The inquiry official is empowered to issue a
summons to the injured person,upon the reasonable ground to believe that his statement may
be useful to the case,to appear before him at the time and place specified in a summons,suchperson shall then be examined

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2. Notification of the Charged:［The Criminal Procedure Code Section 134］When the alleged offender is summoned or
brought, or voluntarily appears before the inquiry official, or when any persons appearing
before the inquiry official is the alleged offender, the inquiry official shall ask his/her name,middle name, surname nationality, parentage background, age,profession,address and placeof birth, and inform the alleged offender of the fact concerning his commission of a crime
alleged, then notify the alleged offender of the charged offence.
3. Inquiry File:［The Criminal Procedure Code Section 139］The inquiry official shall make a note of theexamination in accordance with the general provisions on inquiry under this Code, and shallcombine any noted documents including those forwarded by other inquirers of the same casewith the inquiry file.
All documents presented as evidence shall be gathered in the inquiry file,and other materials
shall also be listed and attached to the file.
4. Indictment of the Suspect:
When the responsible inquiry official has an opinion that an inquiry is completed,he shall perform
as follows:(i) If it is unknown who committed the offence:［The Criminal Procedure Code Section 140］(1)If such offence carries a maximum imprisonment not exceeding three years,the inquiryofficial shallstay an inquiry and note down the reason thereof, and subsequently submit a note together with theinquiry file to the public prosecutor.
If such offence carries a maximum imprisonment exceeding three years, the inquiry official shallsubmit the inquiry file together with an opinion of staying an inquiry to the public prosecutor.
If the public prosecutor issues the order to stay the case or to continue with an inquiry, the inquiry
official shall comply with such order.
(ii) If it is known who committed the offence but he could not yet be summoned or arrested, theinquiry official shall, upon the result of an inquiry,submit an opinion whether a prosecution order or
non-prosecution order should be made together with the inquiry file to the public prosecutor.
［The Criminal Procedure Code Section 141］
If the public prosecutor agrees with an opinion not to prosecute, he shall end the inquiry by
issuing the non-prosecution order and notify the inquiry official of such order.
If the public prosecutor considers that an inquiry should continue, he shall order the inquiry
official to carry out accordance with such opinion.
If the public prosecutor considers that the prosecution order should be issued,he shall take any
actions to obtain the alleged offender. If the alleged offender resides abroad, the publicprosecutor shall make a request for his extradition.
(iii) If it is known who committed the offence and he has been kept in custody or detained, or has
been granted provisional release,or it is believed that such offender would show up if summoned,theinquiry official shall,upon the result of an inquiry,submit an opinion whether the prosecution order or
non-prosecution order should be made together with the inquiry file to the public prosecutor:［The Criminal Procedure Code Section 142］
In the case that the non-prosecution opinion has been submitted,only an inquiry file together
with such opinion shall be forwarded to the public prosecutor,but as for the alleged offender,
the inquiry official is empowered to grant him the release or provisional release.If the alleged
offender is detained, the inquiry official shall apply on his own account or request the publicprosecutor to apply to the Court for the release.
In the case that the prosecution opinion has been submitted, the inquiry file along with thealleged offender shall be dispatched to the public prosecutor except that alleged offender has

90155TH INTERNATIONAL TRAINING COURSEPARTICIPANTSʼPAPERS
already been detained.
However,if the offence is the one which can be settled by the inquiry official,and the offender
has complied with a settlement,a note thereof shall be made and submitted with the file to the
public prosecutor.
After having received the inquiry file together with an opinion of the inquiry official, the publicprosecutor shall perform as follows:［The Criminal Procedure Code Section 143］(1)in the case where the non-prosecution opinion has been rendered and the public prosecutor
agrees with such opinion, he shall issue the non-prosecution order, but in the case where thepublic prosecutor disagrees with such opinion,he shall issue the prosecution order and informthe inquiry official to take the alleged offender to be prosecuted(2)in the case where the prosecution opinion has been rendered and the public prosecutor
agrees with such opinion, he shall issue the prosecution order and bring the case against thealleged offender to the Court,but in the case where the public prosecutor disagrees with such
opinion, he shall issue the non-prosecution order
5. Arrest, Detain and Imprison:［The Criminal Procedure Code Section 78］An administrative or police official is unable toarrest any person without an arrest warrant or a court order, except in the following cases:(1)when a person has committed a flagrant offence as prescribed in Section 80;(2)when a person has been found with tools,weapons or any other objects which may be used
to commit an offence,in a circumstance with reasonable cause to suspect that such person isgoing to cause injury to a person or property of other persons;(3)when there exists a cause of issuing an arrest warrant under Section 66 (2), but due to anecessity and urgency of the matter which has rendered the request of an arrest warrant
against such person in Court not possible;(4)when an arrest is to be conducted against an alleged offender or accused person who has
escaped or is going to escape during his provisional release granted under Section 117.
In conducting an arrest, the official to conduct such arrest:［The Criminal Procedure Code Section 83］
shall notify the person to be arrested that he is going to be arrested
shall notify the arrested person of his charge,in case an arrest warrant has been issued,suchwarrant shall produced to the arrested person
shall notify the arrested person that:he may choose whether to plead or not;such pleaded
statement may be used as evidence against him in trial;and the arrested person has the rightto meet and consult with his lawyer or the person who shall be his lawyer
shall allow the arrested person who wishes to notify his relatives or the person whom heconfides in of the arrest and such notification:can be done with convenience;does not obstruct
the arrest;does not obstruct custody of the arrested person,and does not endanger any person
shall have the power to exercise any methods or preventative measures,as far as it is deemed
appropriate to the circumstances of such arrest in case that the person is to be arrested:has
obstructed or is going to obstruct the arrest;has escaped or is going to escape［The Criminal Procedure Code Section 85］An official who conducts an arrest or whom thearrested person has been delivered to shall have the power to search the alleged offender and seize
articles which may be used as evidence
An arrested person shall be kept in custody only to the extent that it is necessary for the circumstances of the case:［The Criminal Procedure Code Section 87］
in case of misdemeanors -only for the period of time necessary for inquiring into his plea,his

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identity and his place of livingin case that an arrested person has not been granted a provisional release -shall be brought
to Court within 48 hours from the time that the arrested person has been delivered to the officeof the inquiry official under Section 83
in case of an offence which carries a maximum punishable imprisonment term not exceeding
6 months,or,a fine or not more than 500 Baht or both -the Court shall have the power to issue
a detention order only once, with the term of not more than 7 daysin case of an offence which carries a maximum punishable imprisonment term of more than
6 months but less than 10 years,or,a fine of more than 500 Baht or both -the Court shall havethe power to issue several detention orders consecutively but the term of each detention ordershall not be more than 12 days and the total term shall not exceed 48 days
In case of an offence which carries a maximum punishable imprisonment term of 10 years or
longer,regardless of whether a fine can also be imposed or not -the Court shall have the power
to issue several detention orders consecutively but the term of each detention order shall not
exceed 12 days and the total term shall not exceed 84 days
D. Interviewing
The investigatorʼ
s interviews of suspects are not recorded on video but his statement shall be
written down. During the interview, the suspectʼs attorney can attend the interview conducted byinvestigative organizations as below:［The Criminal Procedure Code Section 134/3］The alleged offender is entitled to have thecounsel or any persons trusted to attend his examination.
［The Criminal Procedure Code Section 134/4］Prior to taking of a statement of the alleged
offender, the inquiry official shall inform the alleged offender of the following rights:(1)the right to give or not to give the statement,ifthe alleged offender has given the statement,
it may be used as evidence against him in the trial;(2)the right to have the counsel or any persons trusted to attend the examination.
When the alleged offender voluntarily gives his statement,it shall be noted,and if the alleged
offender refused to give the statement, such refusal shall also be written down.
E. Investigative Report
After conducting the interview,the investigators prepare reports about the contents of the suspectʼsoral statement and provide the suspect with an opportunity to confirm and correct mistakes in such
documents as below.
［The Criminal Procedure Code Section 8］Upon filing a case an accused person of such caseshall have the following rights:(1)to receive a speedy, continuous and fair trial;(2)to hire a defence lawyer in a preliminary examination proceeding or trial in the Court ofFirst Instance, including those in the Court of Appeal or Supreme Court;(3)to have a private meeting with his lawyer or the person who will be his lawyer;(4)to examine the evidence which will be adduced in trial, make copies or take photographsof such evidence;(5)examine preliminary examination proceeding file or trial file and make a copy of such
documents or request a certified copy of such documents upon payment of fee, except where
the court orders exemption of such fee;(6)examine or make a copy of his testimony given during the inquiry.
A lawyer of an accused person shall be entitled to the same rights as such accused person
Once the public prosecutor submits a prosecution order to the Court, an injured person shallbe entitled to the same rights according to the first paragraph (6)as an accused person.
F. Warrants
1. Search Warrant:［The Criminal Procedure Code Section 69］The cause for issuing a search warrant shall be

92155TH INTERNATIONAL TRAINING COURSEPARTICIPANTSʼPAPERS
as follows:(1)to discover and seize an article which shall be used as evidence for an inquiry, a preliminary examination or a trial;(2)to discover and seize an article which:its possession is an offence or;has been obtained
through illegal means or;there is a reasonable cause to believe that it was used or is intended
to be used for a commission of offence;(3)to discover and rescue a person who has been illegally confined or detained;(4)to discover a person prescribed in an arrest warrant;(5)to discover and seize an article in accordance with a judgement or court order,but only incase that such article is unable to be discovered or seized by any other means.
2. Arrest Warrant:［The Criminal Procedure Code Section 66］The cause for issuing an arrest warrant shall be
as follows:(1)where there exists reasonable evidence that a person has committed an offence with the
maximum punishment of three yearsʼimprisonment or longer;(2)where there exists reasonable evidence suspecting that a person has committed an offence
and there is a reasonable cause to believe that he would escape, interfere with evidence, orcause any other injury;

II. TRIAL
A. Competency of Courts［The Criminal Procedure Code Section 22］When an offence has been committed,alleged or
believed to have been committed within the territorial jurisdiction ofanycourt,it shall be tried
and adjudicated by such Court. However:(1)where the accused has residence or has been arrested in a locality or when the official isconducting the inquiry in a locality outside the territorial jurisdiction of the Court above
mentioned, the case may be tried and adjudicated by the Court within whose territorial
jurisdiction such locality is situated;(2)where the offence has been committed outside Thailand, it shall be tried and adjudicatedby the Criminal Court. If the inquiry has been conducted in a locality situated within the
territorial jurisdiction of any Court,the case may also be tried and adjudicated by such Court.
B. Prosecution of Criminal Cases
1. Persons Entitled to Institute Criminal Prosecution in the Court［The Criminal Procedure Code Section 28］The following persons are entitled to institute thecriminal prosecution in the Court.
(1)the Public Prosecutor(2)the injured person
2. Persons Entitled to Proceed with the Case in Case the Injured Person Dies
［The Criminal Procedure Code Section 29］Where an injured person dies after having instituted the prosecution, his ascendant, descendent, husband or wife may proceed with the case in
his stead.
Where the injured person, who is a minor or an incompetent person, dies after criminal
prosecution has been instituted on his behalf by his legal representative,custodian or representative ad litem, the latter may proceed with the case.
C. Procedure in the Courts of First Instance
1. Charge before the Court［The Criminal Procedure Code Section 157］Prosecution of criminal cases shall be preferred

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a charge before any of the Courts competent according to the provisions of this Code or theother laws:［The Criminal Procedure Code Section 158］A charge must be made in writing and contain:(1)the name of the Court and date;(2)the names of the parties in the case and the offence charged;(3)the official position of the Public Prosecutor or, in case of private prosecution, the name,the surname, age. Place of residence, nationality and protection;(4)the name, the surname, age. Place of residence, nationality and protection of the accused;(5)all the acts alleged to have been committed by the accused, all the facts and particulars
regarding the time and place of such acts, and the persons or articles concerned which arereasonably sufficient to give the accused a clear understanding of the charge;
in a charge for defamation, the words, writings, sketches or other matters pertaining to thealleged defamation shall be fully stated or attached to the charge;(6)a reference to the Section of the law which enacts that such act constitutes an offence;(7)the signature of the prosecutor, the drawer and the writer or type if the charge.
［The Criminal Procedure Code Section 160］The distinct offences will be able to be joined in
the same action, but they shall be separated and stated in consecutive order.
Each count of offences will be able to be deemed as charges separated from the other charges.
If the Court deems it expedient, the Court will order to separate the file for trying any countor several counts of offences, and the Court will be able to issue such order either before or
during the trial.
［The Criminal Procedure Code Section 161］Where the charge does not conform with the law,
the Court shall order the prosecutor to correct the charge,or dismiss,or refuse to accept the
charge. The prosecutor has the power to appeal against such order of the Court.
2. Procedures after the Court Accepts the Charge［The Criminal Procedure Code Section 162］Where the charge is found conform with the law,
the Court shall act as follows:(1)in the case where a private person is the prosecutor, the Court shall make a preliminary
examination,but,if the prosecutor has also instituted a criminal prosecution with the samecharge, sub-section (2)shall apply;(2)in the case entered by the prosecutor,the Court need not hold a preliminary examination,
but it may do so if it thinks fit.
In case there is a preliminary examination as aforesaid,if the accused pleads guilty,the Court
shall accept the charge for trial.
［The Criminal Procedure Code Section 165］In the case where the charge is entered by theprosecutor,the accused shall,on the dayfixed for holding the preliminaryexamination,appear
or be brought before the Court. The Court shall serve a copy of the charge on each of theaccused;and, after the Court has been satisfied as to the identity of the accused, the charge
shall be read out and explained to him, and he shall then be asked whether or not he hascommitted the offence and whether he wishes to make anystatement in defence.The statement
made by the accused shall be written down.If the accused refuses to make any statement,thisshall be written down in a memorandum and the preliminary examination shall then proceed.
The accused is not entitled to adduce evidence in the course of the preliminary examination,
but this shall not debar him from having the assistance of a counsel.
In the case where the charge is entered bya private prosecutor,the Court has the power to holdthe preliminary examination in the absence of the accused; the Court shall serve on eachaccused a copy of the charge and notify him of the date fixed for the preliminary examination.
The accused may attend the examination with or without a counsel to cross-examine thewitnesses for the prosecution. If he will not attend,he may appoint counsel to cross-examine
the witnesses for the prosecution. The accused shall not be asked by the Court to make astatement, and, before acceptance of the charge, the accused shall not be treated as such.

94155TH INTERNATIONAL TRAINING COURSEPARTICIPANTSʼPAPERS［The Criminal Procedure Code Section 167］If it appears that there is a prima facie case,theCourt shall accept the charge only as regards the count for which there is a prima facie casefor trial, and, if there be no prima facie case, the charge shall be dismissed.
［The Criminal Procedure Code Section 170］The order of the Court to the effect that there isa prima facie case in final,but the order to the effect that there is no prima facie case may be
appealed or dika appealed against by the prosecutor in accordance with the provisions of theCode governing appeal and dika appeal.
3. Trial and Taking of Evidence［The Criminal Procedure Code Section 172］Unless otherwise provided, the trial and thetaking of evidence shall be conducted in open Court and in the presence of the accused.
When the prosecutor or his counsel and the accused are before the Court,and,after the Court
has been satisfied as to the identity of the accused,the charge shall be read out and explained
to him, and he shall then be asked whether or not he has committed the offence and whether
he wishes to make any statement in defence. The statement made by the accused shall be
written down. If the accused refuses to make any statement, this shall be written down in amemorandum and the preliminary examination shall then proceed.
［The Criminal Procedure Code Section 172 bis］After the proceedings under section 172,second paragraph, has been taken by the Court,and the Court deems expedient that the trail
shall proceed without delay, it has the power to conduct the trial and the taking of evidence
in the absence of the accused in the following cases:(1)in the case of offences punishable with imprisonment the maximum of which does notexceed ten years, irrespective of any punishment with fine imposed or not, or in the case of
offences punishable with fine only, the accused has counsel and has been granted permission
from the Court not to attend the trial and the taking of evidence;(2)in the case of several accused, if it thinks fit, conduct the trial and the taking of evidence
upon each accused in the absence of any other accused.
In the case where the Court has conducted the trial and the taking of evidence according to (2)or (3)in the absence of any accused,no Court shall,in any case whatever,be bound by the trial
and the taking of evidence conducted in the absence of,and to be detrimental to,such accused;(3)in the case of several accused,the Court may,ifit thinks fit,conduct the trial and the takingof evidence upon each accused in the absence of any other accused.
In the case where the Court has conducted the trial and the taking of evidence according to (2)or (3)in the absence of any accused,no Court shall,in any case whatever,be bound by the trial
and the taking of evidence conducted in the absence of,and to be detrimental to,such accused.
［The Criminal Procedure Code Section 173］In the case of the offence punishable with death,or in the case of accused aged not more than eighteen years on the date entered an action in
Court, before commencing the trial, the Court shall ask the accused whether he has counsel
or not, if he has none, the Court shall appoint one for him;
In the case of the offence punishable with imprisonment, before commencing the trial, theCourt shall ask the accused whether he has counsel or not,if he has none and requires one,theCourt shall appoint one for him;
The Court shall pay the fees and expenses to the counsel appointed by the Court under thissection by taking into consideration the case and economic conditions as designated by theRule by Administrative Committee of the Court of Justice with an agreement of Ministry of
Finance.
［The Criminal Procedure Code Section 173/1］For a speedy,continuous and impartial trial in
the case where the accused makes no statement or makes a negative statement,if any of theparties makes a request to the Court or the Court deems suitable, the Court may notify theparties of the designated date for the evidence to be inspected,not less than ten days prior to
the date as designated for taking of evidence

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RESOURCE MATERIAL SERIES No. 92［The Criminal Procedure Code Section 174］Before adducing the evidence,the prosecutor isentitled to open the case for the purpose of stating to the Court the case for the prosecution,that is to say,by setting forth the nature of the charge and the evidence which he proposes tobring in order to prove the guilt of the accused. The Prosecutor shall then adduce the evidence
for the prosecution.
As the witness for the prosecution has been taken,the accused is entitled to open the case forthe purpose of stating to the Court the case for the defence, by setting forth the facts orprovisions of law upon which he proposes to rely,and the evidence which he proposes to bring.
The accused shall then adduce the witness for the defence.
After the witness for the defence has been taken, the prosecutor and the accused are entitled
to close their respective cases either orally or in writing, or both.
In the course of the trail, if the Court is of opinion that it is not necessary to take further
evidence or to carry out any further proceedings, it may issue an order dispensing with thetaking of such evidence or the carrying out of such proceedings.
［The Criminal Procedure Code Section 176］In the trial of a case,if the accused pleads guilty
to the charge, the Court may give judgement without taking any further evidence, provided
that if the minimum punishment in the case where the accused pleads guilty to the charge isimprisonment from five years upwards or heavier, the Court must hear the witness for theprosecution until it is satisfied that the accused is guilty.
In the case of several accused,and only some accused have pleaded guilty to the charge, theCourt may, if it thinks fit dispose of the case for those who refuse guilt in order that theprosecutor may institute the prosecution against such accused as another case within the
period fixed by the Court.
4. Judgment and Orders［The Criminal Procedure Code Section 182］
After the trial is over,a judgement or ordershall be given in accordance with the merits of the case.
A judgement or order shall be read in open Court either on the day the trial is over or within
three days from such date. If there are reasonable grounds, the Court may postpone thereading to a later date, but the grounds for the postponement shall be written down in thememorandum.
［The Criminal Procedure Code Section 192］
No judgement or order shall be pronounced foranything in excess of, or not included in, the charge.
If the Court is of the opinion that the facts as they appeared in the trial differ from the facts
as stated in the charge, the Court shall dismiss the case, unless such differences are not theessential elements,the Court may inflict punishment on the accused upon the facts as found in
the trial
D. Appeal and Dika Appeal
1. Appeal to the Appeal Court［The Criminal Procedure Code Section 193］An appeal on questions of fact and questions oflaw shall lie to the Appeal Court against any judgement or order of a Court of First Instance,
except where such appeal is prohibited by this Code or other laws.
Every appeal must set forth in order a summary of facts or the points of law relied upon.
［The Criminal Procedure Code Section 193 bis］No appeal shall be against the judgement of
the Court of First Instance on the questions of fact in the case where the maximum rate of
imprisonment does not exceed three years or fine not exceeding sixty thousand baht,or both.
Unless;(1)the accused has been sentenced by the judgement of Court to be punished with imprisonment or confinement in lieu of the imprisonment;(2)the accused has been sentenced by the judgement of Court to be punished with imprisonment, but the Court suspends the infliction of punishment;

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155TH INTERNATIONAL TRAINING COURSEPARTICIPANTSʼPAPERS(3)the Court passes the judgement that the accused is guilty,but determination of the punishment is suspended, or(4)the accused has been sentenced by the judgement to be punished by fine exceeding one
thousand baht.
［The Criminal Procedure Code Section 193 ter］In the case where appeal is prohibited
according to Section 193 bis, if any judge, who tried or set the signature in the judgement or
given the dissenting opinion in the Court of First Instance, considers that such matter is an
important question to be decided by the Appeal Court and gives permission to the party toappeal,or the Director-General of the Public Prosecution Department or the Public Prosecutor
receiving the power from the Director-General of the Public Prosecution Department sets thesignature to certify that there are reasonable grounds for the Appeal Court to decide suchmatter, such appeal shall be accepted for further decision.
［The Criminal Procedure Code Section 198］The Appeal shall be filed with the Court of First
Instance within one month from the date of judgement or order has been read or has been
regarded as having been read to the party lodging the Appeal.
2. Dika Appeal (Appeal to the Supreme Court)［The Criminal Procedure Code Section 216］Subject to the provisions of sections 217 to 221,the parties are entitled to lodge a dika appeal against a judgement or order ofthe Appeal Court
within one month from the date of such judgement has been read or has been regarded ashaving been read to the party lodging dika appeal.
Such dika appeal shall be filed with the Court of First Instance,and the provisions of Section
200 and 201 shall be applied mutatis mutandis.
［The Criminal Procedure Code Section 218］In the case where the Appeal Court has confirmed
the judgement of the lower Court or modified it only on immaterial points,and sentenced theaccused to imprisonment for a term not exceeding five years or to a fine,or to both fine andimprisonment for a term not exceeding five years, there shall be no right to dika appeal onquestions of facts.
In the case where the Appeal Court has confirmed the judgement of the lower Court or
modified it only on immaterial points,and sentenced the accused to imprisonment for the term
not exceeding five years,whether it shall have the other punishment also or not,the prosecutor
shall have no right to dika appeal on question of facts.
［The Criminal Procedure Code Section 219］In cases where the Court of First Instance has
sentenced the accused to imprisonment not exceeding two years and fine not exceeding forty
thousand baht,or both,if the Appeal Court has sentenced the accused not exceeding the above
limits,the party shall have no right to dika appeal on the question of facts,but this prohibition
shall not enforce the accused in the case where the Appeal Court has passed the judgement tomodify it on material points and to increase punishment of the accused.
［The Criminal Procedure Code Section 220］The party shall have no right to dika appeal in
the case where the Court of First Instance and the Appeal Court dismisses the charge of theprosecutor.

III. SUMM ARY
The law guarantees the criminally accused the right to a speedy trial. Consequently, prosecutors
must file the charges without delay.The court must conduct a speedy trial. The law also guarantees
the right to a public trial by an impartial judge.The law provides for an impartial judge by permitting
both sides to exercise peremptory challenges. If a party exercises a peremptory challenge against aprospective judge, then the court must excuse that particular judge from the panel.
Due process requires that the criminally accused receive a fair trial. In high-publicity trials, trial

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judges have the responsibility to minimize effects of publicity,perhaps by implementing a gag-order on
the parties and to eliminate outside influences during the trial.Due process further commands that theaccused have the right to call their own witnesses, and mount their own evidence.
There is no system of plea bargaining in the Thai criminal procedure.After the police conclude theinvestigation and the prosecutor is of an opinion that the accused committed the crime, the publicprosecutor shall institute the case by entry of a charge in the competent court.The prosecutor usually
prepares his witnesses before trial by meeting his witnesses and their statements through questions andanswers. Witnesses are protected from threatening by protection measures under the Witness Protection Act B.E.2546(2003).These measures include relocation of the witness,change ofwitnessʼs identity,
testing via video link and other appropriate measures. The protection also extends to witnessesʼ
families.At trial,the law provides further rights for the criminally accused.Trying to avoid convicting
an innocent defendant at all costs,the burden of proof lies with the public prosecutor who must show,
to the satisfaction of the court,that the accused is guilty as charged.This veryhigh burden differs froma civil trial in which the plaintiff must only prove a claim by a preponderance of the evidence.One suchright includes the right to cross-examine the prosecutionʼ
s witnesses.Both parties may submit all kindsof evidence;including hearsay statements, they deem appropriate to prove the guilt or the innocenceof the accused. Confession of the suspect is admissible. However, the value of evidence submitted isweighed by the court.Specifically,the Criminal Procedural Code section 227 states that the court shall
exercise its discretion in considering and weighing all the evidence taken. M oreover, section 227/1
states that in considering and weighing hearsay evidence or evidence with bad character the court must
do so with due diligence. No judgement of conviction is delivered unless there is a sound reason tobelieve or there is other supportive evidence that the accused has committed the offence.
The law guarantees the accused the right to assistance of counsel during trial.If the accused cannot
afford an attorney,the government is required to provide the accused an attorney.Such accused receive
legal representation from the Attorney Association. However, if the accused chooses to waive assistance of counsel and self-represent, he may do so.
After law enforcement arrests a suspect, a judge will set the suspectʼs initial bail, which is a
specified amount of cash that allows the accused to get out of jail after the initial arrest.If the accusedshows up for the proper court dates,the court refunds the bail,but if the accused skips the date,thenthe court keeps the bail and issues a warrant for the individualʼs arrest.
The arraignment follows next. During an arraignment,a judge calls the person charged and takes
the following actions:reading the criminal charges against the accused,asking the accused whether theaccused has access to an attorney or needs the assistance of a court-appointed attorney, asking theaccused to plead, deciding whether to amend the initial bail amount, and setting the dates of future
proceedings.
Upon the partiesʼrequest, a pre-trial hearing may be conducted. The prosecution and the accusedteam use the pre-trial to file motions before a judge.These motions usually concern whether the court
should suppress certain evidence,whether certain individuals can testify,or whether the judge should
dismiss all charges for lack of evidence.
After all these stages, the court will conduct a trial by hearing evidence from both sides in open
court and in the presence of the accused.Before commencing the trial,the Court must be satisfied with
the identity of the accused,read out and explain to the accused that he has been charged with a crimeand ask whether the accused has committed the offence and what the accusedʼs plea will be.
As mentioned above, the law guarantee the accusedʼs right to counsel. Therefore, if the offence ispunishable with death,the court must ask the accused whether he has a counsel.Ifhe has none the court
must provide him with counsel. If the offence is punishable with imprisonment or the accused is notover eighteen years old on the day he is brought before the court, the court must ask whether he has
counsel. If he has none and requires one, the court must appoint counsel.
Both sides then offer opening statements first,although the accused can reserve opening statement98155TH INTERNATIONAL TRAINING COURSEPARTICIPANTSʼPAPERS
until the prosecution rests.The prosecution presents its witnesses and evidence first.Then,the accusedpresents witnesses and evidence. Both sides have the right to cross examination. After the accusedrests,the accused offers a closing argument,and then the prosecution offers the final closing argument.
After closing arguments,the court pronounces a judgement.However,if the court deems it necessary,
the judge may set a later date to pronounce a judgement.
If the party is unsatisfied with the judgment,he mayappeal to the Court ofAppeal within one monthafter the judgement has been read. An appeal must set forth in order a summary of the facts or the
points of the law relied upon.However,no appeal shall be against the judgement of the Court of First
Instance on the questions of fact in the case where the maximum rate of imprisonment does not exceed
three years of fine not exceeding sixty thousand baht,or both,unless (1)the accused has been sentenced
by the judgement of the Court with imprisonment or confinement in lieu of the imprisonment (2) the
accused has been sentenced by the judgement of the Court with imprisonment,but the Court suspends
the infliction of punishment (3)the Court passes the judgement that the accused is guilty,but determination of punishment is suspended or (4) the accused has been sentenced by the judgement to thepunishment of a fine exceeding one thousand baht.
On the same notion, if the party is unsatisfied with the judgement of the Court of Appeal, he may
lodge a dika appeal to the Supreme Court within one month after the judgement has been read. The
provisions in the appeal sections apply to the lodging of dika appeal mutatis mutandis. However, theparty may not lodge a dika appeal if the Court of Appeal has confirmed the judgement of the lower
court or modified it only on immaterial points,and sentenced the accused to imprisonment for a term
not exceeding five years or to a fine, or to both fine and imprisonment for a term not exceeding five
years.

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THE CRIM INAL JUSTICE SYSTEM OF UKRAINE
Svitlana Oliynyk

I. POLITICAL SYSTEM OF UKRAINE
Ukraine is a sovereign, independent, democratic, social, legal state. As well Ukraine is a unitary
democratic presidential-parliamentary republic and has a multiparty political system. The basic
institutions of government are the President and the legislative, executive and judicial branches.The
legislative branch consists of the Parliament, which is called the Verkhovna Rada. The executive
branch consists of the Cabinet of M inisters,which is responsible to the President and under control ofand accountable to the Verkhovna Rada of Ukraine.The judicial branch is represented by the generaland special courts of different instances.

II. CRIMINAL JUSTICE SYSTEM OF UKRAINE
A. The Tasks of Criminal Justice of Ukraine
The main tasks of criminal justice are to protect the rights and legal interests of individuals andlegal persons who take part therein as well as a speedy and full detection of crimes, identification of
those guilty and ensuring correct application of law so that anyone who has committed a crime isprosecuted while everyone innocent is not punished.
B. The M ain Principles of Criminal Justice of Ukraine
The main principals of criminal justice are guaranteed by the Constitution of Ukraine:
Legality
Equality of all participants of a trial under the law and before the court
Ensuring that the guilt is proved
Adversarial procedure and freedom of the parties in presenting their evidence to the court andin proving the cogency of the evidence before the court
Prosecution by the prosecutor in court on behalf of the State
Ensuring the right of an accused person to a defence
Openness of trial and its complete recording by technical means
Ensuring appeal and cassation against a court decision save as in cases established by law
The mandatory nature of court decisions
C. Criminal Justice Reform in Ukraine, Legal Aspects
According to the obligations and commitments of Ukraine, which have been taken joining theCouncil of Europe in 1995,the criminal justice system is at the stage of active reformation.In this fielda range of new laws were adopted in Ukraine, for example:
Deputy Head of the Division for International Relations,European Integration and Protocol of the M ain Department forInternational Legal Cooperation and European Integration, Prosecutor Generalʼs Office of Ukraine.

100155TH INTERNATIONAL TRAINING COURSEPARTICIPANTSʼPAPERS
The Law of Ukraine “On the Judicial System and the Status of Judges”, July 7, 2010 with
amendments from June 9,2013.This Law defines the legal principles of the judiciary and theadministration of justice in Ukraine.
The Law of Ukraine “On the Advocacy and the Bar Activity”,July 5,2012.This Law defines
the legal principles of organization and implementation of advocacy and bar activity in
Ukraine.
The Criminal Procedure Code of Ukraine, came into force since November 20, 2012. The
criminal procedure of Ukraine is absolutelyreformed and answers the international standards.
The Law of Ukraine “
On Amendments of Some Legislative Acts of Ukraine on Issues ofDevelopment of the Activity of the Public Prosecution”, 2012. In view of this, the Law of
Ukraine “
On Public Prosecution”was amended.
These are some of the latest laws which brought transformations into the criminal justice systemof Ukraine.
D. Judicial System of Ukraine
The judicial system of Ukraine comprises courts of general jurisdiction and the court of constitutional jurisdiction.
1. Courts of General Jurisdiction(a) Local courts
Local courts are the courts of the first instance:
Local courts -hear civil, criminal, administrative cases
Local commercial courts -hear cases arising from the commercial relations
Local administrative courts -hear cases of the administrative jurisdiction(b) Appellate courts
Appellate courts are the courts of appeals:
Appellate courts of oblasts (regions), cities Kyiv and Sevastopol, the Appellate Court of theAutonomous Republic of Crimea
Appellate commercial courts -are formed in the appellate districts
Appellate administrative courts -are formed in the appellate districts(c) Higher Specialized Courts
Higher courts are specialized courts of cassation:
The Highest Specialized Court of Ukraine for Civil and Criminal Cases
The Supreme Commercial Court of Ukraine
Higher Administrative Court of Ukraine(d) The Supreme Court of Ukraine
The Supreme Court of Ukraine is the highest judicial body of general jurisdiction:
The Judicial Chamber on Administrative Cases
The Judicial Chamber on Commercial Cases

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The Judicial Chamber on Criminal Cases
The Judicial Chamber on Civil Cases
2. The Court of Constitutional Jurisdiction
The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction in Ukraine,
whose purpose is to guarantee the supremacy of the Constitution of Ukraine as the Basic Law of theState. This Court resolves issues of conformity of laws and other legal acts with the Constitution of
Ukraine and provides the official interpretation of the Constitution of Ukraine and laws of Ukraine.
E. The Public Prosecution of Ukraine
The public prosecution ofUkraine constitutes a single system and headed bythe Prosecutor Generalof Ukraine. The main task of the prosecution in Ukraine is to support the rule of law,protect humanbeings and citizens and the State from illegal encroachments.The functions of the public prosecution
in Ukraine are:Prosecution in court on behalf of the State
Representation of the interests of a citizen or of the State in court in cases determined by law
Supervision over the observance of laws by bodies that conduct operative-investigative
activities, inquiry and pre-trial investigations
Supervision over the observance of laws in the course of execution of court decisions incriminal cases and application of other measures of coercion in relation to the restraint of
personal freedoms of citizens
Supervision over the observance of human and civil rights and freedoms and over the observance of laws regulating these issues by executive power bodies, by local self-government
bodies, their officials, and officers
The Prosecutor General of Ukraine and subordinated prosecutors coordinate combating crime andcorruption with the law-enforcement bodies,security agencies,the tax police,the customs service,themilitary law-enforcement service ofthe Armed Forces ofUkraine and other law-enforcement agencies.
In order to ensure coordination of the above-mentioned bodies the prosecutor shall convoke
coordinating meetings,organize task forces,request the statistical and other relevant information,andparticipate in meetings of the Coordinating Committee for Combating Organized Crime and Corruption
attached to the President of Ukraine.
Also it is necessary to explain the role of the public prosecution in the field of fighting againstorganized crime and ensuring the rule of law at the international level. According to the legislationand international agreements of Ukraine, approved by the Parliament of Ukraine, the Prosecutor
Generalʼs Office is the central authority of Ukraine for mutual legal assistance and extradition incriminal matters (in the pre-trial investigation phase).The Ministry of Justice of Ukraine is determined
as a central authority of Ukraine in the trial phase.

III. CRIM INAL PROCEDURE OF UKRAINE
A. Investigation
1. Agencies Responsible for Criminal Investigation
Investigative jurisdiction (competence)is covered by Article 216 of the Criminal Procedure Code of
Ukraine. The investigators of internal affairs,of bodies of security,of bodies supervising compliancewith the tax legislation conduct pre-trial investigations,as well as investigators from units of the State
Bureau of Investigations of Ukraine,shall engage in pre-trial investigation of the crimes committed by
officials holding a particularly responsible status pursuant to Part One of Article 9 of the Law of
Ukraine “
On Civil Service”and the persons whose positions refer to categories 1-3, judges and law

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enforcement personnel.
At the same time, according to the Transitional Provisions of the Criminal Procedure Code of
Ukraine before the day of entry into force of provisions of the above-mentioned Article 216 of the
Criminal Procedure Code of Ukraine concerning investigative competence of the State Bureau of
Investigations of Ukraine, powers of pre-trial investigation of the criminal offences such as militarycrimes and official crimes, specified in the Criminal Code of Ukraine,shall be exercised by investigators of prosecutorʼ
s offices, which enjoy the powers of the investigators.
2. Whether Public Prosecutors can Command the Above-Mentioned Investigative Agencies Directly in
Criminal Investigations
According to Article 36 of the Criminal Procedure Code of Ukraine, a public prosecutor in thecourse of performing his duties is independent in his procedural activities,and any interference thereinby persons who have no legitimate authority,shall be forbidden.Public prosecutors,while supervising
the compliance with law during pre-trial investigation in the form of providing procedural guidance ina pre-trial investigation, shall have the right to:Start pre-trial investigation if grounds specified in the Criminal Procedure Code are present
Have full access to materials, documents, and other details related to pre-trial investigation
Assign a pre-trial investigation agency to conduct pre-trial investigation
Assign an investigator of the pre-trial investigation agency to conduct within a time limit set
by the public prosecutor, investigatory (detective) actions, covert investigatory (detective)
actions or other procedural actions,or give instructions in respect of conducting such actions,or participate in them, and where necessary, conduct investigatory (search) and procedural
actions in accordance with the procedure set by the Criminal Procedure Code
Assign the conduct of investigatory (search)actions, covert investigatory (search)actions to
the relevant operational units
Institute audits and examinations in accordance with the procedure established by law
Overturn illegitimate and ungrounded rulings of investigators
Initiate with the head ofthe pre-trial investigative agencythe issue ofsuspending the investigator from pre-trial investigation and the appointment of another investigator if grounds specified in the Criminal Procedure Code are present for his disqualification or in case of inefficient
pre-trial investigation
Take procedural decisions in cases specified by the Criminal Procedure Code,including withregard to termination of criminal proceedings and to extending the time limits for the pre-trial
investigation if grounds as prescribed in the Criminal Procedure Code are present
Support or refuse to support the motions of investigators addressed to investigating judges on
the conduct of investigatory (search) actions, covert investigatory (search) actions, otherprocedural actions in cases specified by the Criminal Procedure Code or individually submit
such motions to the investigating judge
Notify the individual of suspicion
Enter civil action for the Government and those individuals who are unable to defend theirrights pursuant to the Criminal Procedure Code and the law due to their physical or economic
circumstances, being underage or elderly age, incompetence or limited legal capacity
Approve or refuse to approve the indictment, submissions on the application of measures of103

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medical or educational nature,modify an indictment drawn up by the investigator or submission above, draw up indictments or motions concerned
Refer to court an indictment, request to enforce measures of a medical nature, request to
enforce compulsory medical or educational measures, or request to discharge an individualfrom criminal liability
Prosecute on behalf of the State in court,resign from supporting public prosecution,alter theaccusation or lay additional accusations according to the procedure specified by the Criminal
Procedure Code
Coordinate requests for international legal assistance or referral ofcriminal proceedings madeby pre-trial investigation authority,or independently file such motion in accordance with theprocedure as set in the Criminal Procedure Code of Ukraine
Commission a pre-trial investigation authority to respond to a request (commission) forinternational legal assistance or criminal referral made by a competent authority of a foreignstate, verify the completeness or legitimacy of procedural actions and also the completeness,
comprehensiveness and objectiveness of investigation under the referred criminal proceeding
Verify the documents concerning surrendering a person (extradition)provided by a pre-trial
investigation authority prior to referring them to a higher level prosecutor, and return these
documents to an appropriate authority with written comments, if these documents are unjustified or fail to meet the requirements of international treaties to which the Verkhovna Rada
(Parliament)of Ukraine consented to be bound or laws of Ukraine
Commission pre-trial investigation authorities with search and apprehension of those individuals who committed a criminal offence outside Ukraine, and carry out specific procedural
actions to surrender (extradite)a person at the request made by a competent authority of aforeign stateAppeal court decisions in a procedure established by the Criminal Procedure Code
Exercise other powers envisaged in the Criminal Procedure Code
3. Whether Public Prosecutors Have the Power to Conduct Their Own Investigations (or Whether
There is an Examining Judge who Oversees the Investigation),and IfSo,Does the Public Prosecutoror the Examining Judge Interview the Suspects and Key Witnesses Directly?
Firstly, please pay attention to the above-mentioned provisions concerning the investigative jurisdiction (competence)covered by Article 216 ofthe Criminal Procedure Code ofUkraine.Also according
to Article 36 of the Criminal Procedure Court of Ukraine, a public prosecutor, while supervising thecompliance with law during pre-trial investigation in the form of providing procedural guidance in a
pre-trial investigation, shall have the right to assign an investigator of the pre-trial investigation
agency to conduct within a time limit set by the public prosecutor, investigatory (detective) actions,covert investigatory (detective)actions or other procedural actions, or give instructions in respect ofconducting such actions, or participate in them, and where necessary, conduct investigatory (search)and procedural actions in accordance with the procedure set by the Criminal Procedure Code. Thismeans that the public prosecutors have right to interview the suspects and key witnesses directly.As
well,public prosecutors have the right to interview these persons when supporting criminal charges incourt, and judges ― during court hearings respectively.
4. The Outline of the Investigative Procedure from the Beginning of Investigation to the Indictment of
the Suspect (Especially the Arrest Procedure and Pre-Indictment Detention Procedure, Including
M aximum Period to Detain the Suspect)(a) Start of the pre-trial investigation
Pre-trial investigation shall start from the moment the information concerned has been entered in
the Integrated Register of Pre-Trial Investigations.By rule,investigators and public prosecutors shall104155TH INTERNATIONAL TRAINING COURSEPARTICIPANTSʼPAPERS
be required immediately but in any case no later than within 24 hours after submission of a reportcontaining information on a criminal offence that has been committed or after they have learned fromany source about circumstances which are likely to indicate that a criminal offence has been committed, to enter the information concerned in the Integrated Register of Pre-Trial Investigations, and toinitiate investigation.The investigator engaged in pre-trial investigation is appointed bythe supervisorof a pre-trial investigation chief.
Conducting pre-trial investigation before entering the information in the Register or without suchentering shall not be permitted and shall entail liability established by law.Inspection of the place ofcrime may be carried out before entering the information in the Integrated Register of Pre-Trial
Investigations, which shall be done immediately after completion of the inspection. If signs of acriminal offence are found on a ship or river craft outside Ukraineʼs borders, pre-trial investigation
shall begin immediately;information on that shall be entered in the Integrated Register of Pre-Trial
Investigations at the first opportunity.
(b) Written notice of suspicion
Written notice ofsuspicion shall be served the dayon which it has been drawn up bythe investigatoror public prosecutor, and if it appears impossible to serve it, in the way prescribed by the Criminal
Procedure Code of Ukraine for serving notifications,written notice of suspicion shall be served on theapprehended person within 24 hours after he has been apprehended. In case a person has not been
served the notice of suspicion after 24 hours elapsed after the moment of his apprehension,such person
is subject to immediate release.Date and time of serving the notice of suspicion,legal qualification of
criminal offence of the commission of which the person is suspected,with indication of Article(Article
part)of Ukraineʼs law on criminal liability,shall be immediately entered by the investigator or publicprosecutor into the Integrated Register of Pre-Trial Investigations.
(c) Time limits for pre-trial investigation
Pre-trial investigation is required to be completed:
Within one month from the date the person concerned is notified of suspicion in committing
a criminal misdemeanour
Within two months from the date the person concerned is notified of suspicion in committing
a crime
The total duration of pre-trial investigation may not exceed:
Two months from the date the person concerned is notified of suspicion in committing acriminal misdemeanour
Six months from the date the person concerned is notified of suspicion in committing a crimeof small or medium gravity
Twelve months from the date the person concerned is notified of suspicion in committing agrave crime or a crime of special gravity
The period between the day of adoption of a ruling to terminate criminal proceedings and the dayof revoking thereof by the investigating judge or of adoption of a ruling to resume criminal proceedings, shall not be included in the time limits specified above.
(d) Measures of restraint
The following are measures of restraint:
Personal commitment
Personal warranty

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BailHouse arrest
Custody
The investigating judge or court shall deny enforcement of a measure of restraint unless aninvestigator or public prosecutor proves that circumstances established in the course of considering the
motion on enforcement of measures of restraint are sufficient for belief that none of the less strictmeasures of restraint specified above,can prevent the risk or risks proved in the course of consideration.At that,the least strict measure of restraint is personal commitment,and the most strict,custody.
M easures of restraint shall be enforced:during pre-trial investigation,by investigating judge upon
motion of investigator approved by public prosecutor,or upon motion of public prosecutor;and during
trial, by the court upon motion of public prosecutor.
(e) Circumstances taken into account in choosing a measure of restraint
To decide on the issue of choosing a measure of restraint,the investigating judge or court,drawing
upon materials submitted by parties to criminal proceedings, is required to assess the totality ofcircumstances including:
Importance ofavailable evidence concerning the commission ofcriminal offence bythe suspect
or accused
Severityofpunishment which can be imposed on the person concerned ifthe suspect or accusedis found guilty of the commission of the criminal offence he is suspected or charged of
Age and state of health of the suspect or accused
Firmness of social relations the suspect or accused has in the place of his permanent residence,
including whether he has a family and dependants
Whether the suspect or accused has the place of permanent employment or study
Reputation of the suspect or accused
Property status of the suspect or accused
Previous convictions of the suspect or accused
Compliance by the suspect or accused with terms of previously enforced measures of restraint,
if anyExistence of the notice that the person concerned is suspected of having committed anothercriminal offence
The amount of property damage, in causing which a person is suspected or accused, or theamount of proceeds, resulting from committing a criminal offence a person is suspected or
accused, and also, the validity of available evidence justifying the appropriate circumstances(f) Keeping a suspect in custody
Custody is an exceptional measure of restraint that shall not apply except as follows:
A person suspected of or charged with an offence the primary punishment for which by law
is a fine in the amount exceeding 3,000 times the minimum citizenʼ
s income,except where thepublic prosecutor has proven that the suspect or accused person failed to fulfil the obligations
imposed upon him when an earlier measure of restraint or failed to comply as prescribed with

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the requirements concerning depositions of bail and submission of documentary proof of suchdeposition
A person with a prior record of convictions who is suspected of or charged with an offence
punishable by imprisonment of up to 3 years, except where the public prosecutor has proventhat such person,when at large,was fleeing pre-trial investigation or trial,obstructed criminal
proceedings or has been notified of suspicion in the commission of another offence
A person without prior convictions who is suspected of or charged with an offence that
according to law is punishable by imprisonment of up to 5 years, except where the publicprosecutor has proven that such person, when at large, was fleeing pre-trial investigation ortrial, obstructed criminal proceedings or has been notified of suspicion in the commission ofanother offence
A person without prior convictions who is suspected of or charged with an offence punishable
by imprisonment of more than 5 years
A person with a prior record of convictions who is suspected of or charged with an offence
punishable by imprisonment of up to 3 years
A person wanted by competent authorities of a foreign state for commission of a criminal
offence in connection with which the issue of extradition to such foreign state for the purposeof instituting criminal proceedings against him or execution of the sentence may be decided,in the manner and on the grounds provided for by the Criminal Procedure Code or aninternational treaty of Ukraine to which the Verkhovna Rada (Parliament)of Ukraine consented to be boundThe investigating judge or court,when making a ruling on application of custody as a measure of
restraint, shall be required to determine an amount of bail sufficient for ensuring that the suspect or
the accused should comply with the duties provided for by the Criminal Procedure Code of Ukraine.
The investigating judge or court,when rendering a decision on application of custody as a measure of
restraint, may put aside a decision on the amount of bail in criminal proceedings:
In the matter of a violent offence or one involving threat of violence
In the matter of an offence causing death of an individual
In regard of the person who has violated the terms of bail selected earlier as a measure of
restraint, within the same set of proceedings(g) Term of validity of the ruling to commit to custody, extend custody
The term of validity of the investigating judgeʼ
s or courtʼs ruling to commit to custody or to extend
custody may not exceed sixty days. Duration of custody shall be calculated from the date of having
been committed to custody,and if commission to custody was preceded by apprehension of the suspect,accused, from the date of apprehension. Time of custody shall include the time spent by the person
concerned in a medical institution while undergoing in-patient psychiatric examination. In case of
repeated commission to custody of a person in the course of the same criminal proceedings, time ofcustody shall be calculated with account of the time of the previous term under custody.
Time of keeping a person in custody may be extended by the investigating judge within the time
limits of pre-trial investigation according to the procedure laid down in the Criminal Procedure Codeof Ukraine. Total duration of custody of the suspect, accused in the course of pre-trial investigation
shall not exceed:Six months in criminal proceedings in respect of crimes of small or medium gravity
Twelve months in criminal proceedings in respect of grave or especially grave crimes

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During investigation,investigative and covert investigative(detective)actions are conducted by theinvestigators.
(h) Forms in which pre-trial investigation should be completed
A person shall have the right to have charges brought against him be reviewed by a court as earlyas possible,or to dismissal of such charges through closure of the proceedings.After a person has been
notified of being a suspect,the public prosecutor is required within the shortest possible time to do oneof the following:
Close criminal proceedings
Submit to court a motion on releasing the person from criminal liability
Submit to court an indictment,motion to impose compulsory medical or educational measures
The public prosecutor shall enter information on completion of pre-trial investigation in the
Integrated Register of Pre-Trial Investigations.
5. Whether InvestigatorsʼInterviews of Suspects are Recorded on Video, and If So, Whether that
Video is Able to Be Used as Evidence to Prove the Defendantʼs Guilt
Article 224 of the Criminal Procedure Code of Ukraine states that photographing, audio and/or
video recording may be made during interviewing.According to Article 104 of the Criminal Procedure
Code of Ukraine, if during pre-trial investigation a procedural action may be recorded with technicalmeans, the appropriate entry should be made in the record.
If interrogation is recorded with technical means, the text of testimony may not be entered in therelevant record on the condition that none of the participants in this procedure insists upon this.In suchcases, entry should be made in the record that the testimony has been recorded on a medium that is
attached to the record. So the answer to this question ― video is able to be used as evidence to provethe defendantʼ
s guilt.
6. Whether the Suspectʼs Attorney can Attend the Interview Conducted by Investigative Organizations
According to Article 46 of the Criminal Procedure Code of Ukraine,defence counsel has a right toparticipate in interviews and other proceedings conducted with the participation ofthe suspect,accused
person, to confidentially meet the suspect prior to the first interview, without authorization of theinvestigator,public prosecutor,court,and,after the first interview,to have such consultations without
any limitation with regard to the number and length ofconsultations.Such consultation maytake place
under visual control of the competent official but in the environment,which precludes wiretapping or
eavesdropping.
7. Whether the Investigators Prepare Reports about the Contents of the Suspectʼs Oral Statement after
Conducting Interviews, and If So, Whether Investigators Provide the Suspect with an Opportunity
to Confirm and Correct Mistakes in Such Documents
During criminal proceedings procedural actions,including suspectʼs oral statements,are recorded ina record (protocol).If the interviewee so desires,he may provide his testimonywritten byhis own hand.
Based on such written testimony, he may be asked additional questions.
Also it is necessary to mention that according to Article 224 of the Criminal Procedure Code of
Ukraine interviewing may not last more than two hours without breaks, and in the aggregate morethan eight hours per day. Before being interviewed, the person of the individual concerned is established;his rights and the way in which interviewing is conducted are explained.If the suspect refuses
to answer questions,the interviewer is required to stop immediately.The interviewee may use his own
documents and notes during interviewing if his testimony involves any calculations other informationdifficult to keep in memory.
A person is allowed not to answer questions with regard to circumstances in whose respect there
is a direct prohibition in law (secrecy of confession, medical secrets, defence counselʼ
s professional

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secrets,secrecy of deliberation room,etc.),or which may become grounds for suspicion,accusation ofcommission by himself, his close relatives or family members of criminal offence, as well as withregard to officials who conduct covert investigative (detective)actions and persons who confidentiallycooperate with pre-trial investigation agencies.
8. Searches, Seizures and Other Investigations That Require Warrants
Procedural acts which need an investigating judgeʼ
s ruling taken on the grounds provided in publicprosecutorʼs or investigatorʼ
s requests are:(a)Investigative (detective, search) actions
Search of home or any other possession of a person
Inspection of home or any other possession of a person
Investigative experiment(b) Covert investigative (detective) actions
Interference in private communication:
Audio, video monitoring of an individual
Arrest of correspondenceCollecting information from telecommunication networks
Inspecting publicly inaccessible places, home or any other possession of a person
Establishing the location of a radio electronic device
Covertly obtaining samples, which are necessary for comparative analysis(c) Other procedural actions
M easures to ensure criminal proceedings (summons by investigator, public prosecutor, court
summons and compelled appearance;imposition of pecuniary penalty;temporary restriction
on a special right;suspension from position; provisional access to objects and documents;
provisional seizure of property;attachment of property)
M easures of restraint (personal commitment;personal warranty;bail;house arrest;custody)
Entering home or any other possession of a person
B. Trial
1. Procedures at Trial (Step-by-Step from Indictment to Sentencing)
Court proceedings:
Preparatory court session
Court hearing
Taking court decision
Announcement of court decision
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Criminal proceedings in court of cassation
Revision of judgements by the Supreme Court of Ukraine
Criminal proceedings upon discovery of new circumstances
2. Whether there is the System of Plea-Bargaining, Immunity of Witnesses, Etc.
A special chapter of the Criminal Procedure Code of Ukraine is devoted to the criminal proceedings
based on agreements. The following types of agreements may be concluded in criminal proceedings:
reconciliation agreement between the victim and the suspect or the accusedplea agreement between the public prosecutor and the suspect or the accused about pleading
guilty(a)Initiation and conclusion of agreement
The reconciliation agreement may be concluded on the initiative of the victim, the suspect or theaccused. Arrangements in respect of the reconciliation agreement may be made independently by thevictim and the suspect or the accused,the defence counsel and a representative or with the assistanceof another person as agreed between the parties to criminal proceedings (except for the investigator,
public prosecutor or judge).
The plea agreement may be concluded upon initiative of the public prosecutor or the suspect or theaccused. The reconciliation agreement between the victim and the suspect or the accused may beconcluded in proceedings in respect ofcriminal misdemeanours and crimes ofminor or medium gravity,and in criminal proceedings in the form of private prosecution.
The plea agreement between the public prosecutor and the suspect or the accused may be concluded
in proceedings in respect of criminal misdemeanours, as well as crimes of minor or medium gravity,
grave crimes,perpetration of which caused damage only to state or public interests.Conclusion of theplea agreement in criminal proceedings with the participation of the victim shall not be allowed.
Conclusion of a reconciliation agreement or a plea agreement may be initiated at any time between
the moment of notifying the person of the suspicion and retirement of judges into the deliberation room
to pass the sentence/judgement. In case of failure to reach an agreement, the fact of initiatingconclusion of the agreement and the statements which were made to arrive at an agreement may not
be considered as refusal from prosecution or pleading guilty.
The investigator and the public prosecutor shall be required to inform the suspect and the victim
about their right to reconciliation,explain to them the mechanism of its realization,and not to impedeconclusion of the reconciliation agreement. In case criminal proceedings are conducted in relation toseveral persons who are suspected or accused of committing one or several criminal offences,and not
all suspects or the accused agreed to conclude the agreement,such agreement may be concluded with
one of the (several)suspects or the accused. Criminal proceedings in relation to the person (persons)with whom agreement was reached shall be subject to disjoining in separate proceedings. In caseseveral victims,who suffered from one(the same)criminal offence,participate in the criminal proceedings,the agreement may only be concluded and approved with all victims.In case several victims,who
suffered from different criminal offences, participate in the criminal proceedings, and not all of themagreed to conclude the agreement, such agreement may be concluded with one (several) victims.
Criminal proceedings in relation to the person (persons) with whom agreement was reached shall be
subject to disjoining in separate proceedings.
(b) Circumstances to be considered by the public prosecutor when concluding a plea agreement
When making a decision on the conclusion of a plea agreement, the public prosecutor shall be
required to take into consideration the following circumstances:
Degree and nature of cooperation on the part of the suspect or the accused in conducting

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criminal proceedings regarding him or other persons
Nature and severity of the charges brought (suspicion)
Availability of public interest in ensuring a faster pre-trial investigation and trial, anddetection of more criminal offences
Availability of public interest in prevention, detection and termination of more criminal
offences or other more serious criminal offences(c) Content of a reconciliation agreement
A reconciliation agreement shall indicate its parties,statement of the suspicion or charges and theirlegal determination with the reference to the article (paragraph of the article)of the Law of Ukraineon criminal liability,the circumstances essential for the criminal proceedings concerned,the amount ofdamage caused by criminal offence, the time period for its compensation or the list of actions otherthan compensation,which the suspect or the accused is required to take in favour ofthe victim,the time
period for completion of such actions,agreed punishment and consent of the parties to the impositionof that punishment or to the imposition of a punishment and relief from serving the punishment onparole,the implications of conclusion and approval of the agreement and implications ofnon-executionof the agreement. The agreement shall indicate the date of its conclusion and shall be signed by theparties.
(d) Content of a plea agreement
A plea agreement shall indicate its parties, statement of the suspicion or charges and their legal
determination with the reference to the article (paragraph of the article) of the Law of Ukraine on
criminal liability, the circumstances essential for the criminal proceedings concerned, unconditional
admission by the suspect or the accused of his guilt in committing criminal offence,the duties (obligations)of the suspect or the accused regarding cooperation in detection ofthe criminal offence perpetrated by other person (provided the corresponding arrangements took place), agreed punishment andagreement of the suspect or the accused to imposition of such punishment (sentencing)or to impositionof a punishment (sentencing) and relief from serving the punishment on parole, the implications ofconclusion and approval of the agreement and implications of non-execution of the agreement. The
agreement shall indicate the date of its conclusion and shall be signed by the parties.
(e) Implications of conclusion and approval of an agreement
Conclusion and approval of a reconciliation agreement shall have the following implications:(i) For the suspect or the accused ― restriction ofhis right to appeal against a sentence and waiverfrom the rights ― keep silence;be represented by the defence counsel,including getting legal assistancefree of charge in accordance with the procedure and in the cases stipulated by law,or conduct his own
defence;examine, during trial, witnesses for the prosecution, file motions to summon witnesses, andproduce evidence in his favour(ii) For the victim ― restriction of his right to appeal against a sentence and deprivation of theright to demand, at a later date, making the person criminally liable for the corresponding criminal
offence and to change his claims for compensation for the inflicted damage(f) Judgement based on an agreement
If the court makes sure that the agreement may be approved,it shall pass the judgement by which
it approves the agreement and imposes the punishment agreed between the parties.The reasoning partof the judgement based on the agreement must contain:statement of the charges with the reference tothe article (paragraph of the article)of the Law of Ukraine on criminal liability, which concerns thecriminal offence in perpetration of which the person was accused;information about the concluded
agreement, its details, content and the imposed punishment;reasons from which the court proceeded
when deciding on compliance of the agreement with the Criminal Procedure Code and the law andpassing the judgement, and the legal provisions the court was guided by.

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The operative part of the judgement based on the agreement must contain the decision on approvalof the agreement with indication of its detail,decision on the guilt of the person with reference to thearticle (paragraph of the article)of the Law of Ukraine on criminal liability,decision on imposition of
the punitive measures agreed between the parties for each of the charges and the final punishment,aswell as other data/information. Judgement based on the agreement may be appealed against inaccordance with the procedure stipulated in the Criminal Procedure Code of Ukraine.
(g) Implications of non-execution of the agreement
In case of non-execution of the reconciliation agreement or plea agreement,the victim or the publicprosecutor,respectively,shall have the right to address the court,which approved such agreement,withthe motion to revoke the judgement (sentence).The motion for revocation of the judgement,by which
the agreement was approved, may be filed within the statutory period of limitations established formaking the person criminally liable for perpetration of the corresponding criminal offence.
The motion for revocation of the judgement, by which the agreement was approved, shall be
examined in court session with participation of the parties to the agreement and with notification ofother participants in the court proceedings.Absence ofother participants in court proceedings shall notpreclude such examination.
The court,by its ruling,shall revoke the judgement by which the agreement was approved,provided
the person who filed the corresponding motion proves that the convict failed to fulfil the terms andconditions of the agreement.The revocation of the judgement shall entail fixing a trial in accordancewith the regular procedure,or returning the materials of proceedings for the completion of the pre-trial
investigation in accordance with the regular procedure if the agreement was initiated at the stage ofthe pre-trial investigation.
The ruling on revocation of the judgement by which the agreement was approved,or on the refusal
to do so may be appealed against in accordance with the appeal procedure. Deliberate non-executionof the agreement shall be the reason for making the person criminally liable under the law.
3. Whether All Evidence Collected and Documents Prepared by Investigators Are All Referred to theJudge after Indictment (or Does the Prosecutor Choose and Submit the Best Evidence Appropriate
to Prove Defendantʼs Guilt to the Court)
All evidence and documents collected by the investigator are referred to the court, and publicprosecutors do not choose some evidence among all.At the same time,evidence must be adequate andadmissible. In criminal proceedings, evidence is factual knowledge, which has been obtained in aprocedure prescribed in the Criminal Procedure Code on grounds of which the investigator, publicprosecutor,investigating judge and court establish the presence or absence of facts and circumstances
which are important for the criminal proceedings and are subject to be proved.
Evidence is adequate if it directly or indirectly confirms the presence or absence of circumstances
to be proved in criminal proceedings and other circumstances which are important for the criminal
proceedings, as well as credibility or non-credibility, possibility or impossibility of using other evidence. Evidence is found admissible if obtained through a procedure prescribed in the Criminal
Procedure Code. Inadmissible evidence may not be used in adopting a court judgement.
4. Whether Prosecutors Prepare Their Witnesses Before Trial,for Example,Meeting with Witnesses
and Testing Their Statements through Questions and Answers
The public prosecutors do not prepare witnesses before the trial.
5. How Confession of the Suspect is Regarded at Trial If the Defendant Withdraws the Confession
The confession ofthe suspect is considered bythe court as circumstances mitigating punishment andnot as circumstances aggravating punishment. It is a right of the person to admit or to deny his/herguilt.

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6. Whether There Are Any Cases in which Evidence Collected through Investigation Is Not Permitted
to Be Submitted to Court
Evidence collected through investigation is submitted to the court, but such evidence must be
adequate and admissible. Evidence obtained through significant violation of human rights is inadmissible, and fundamental freedoms are guaranteed by the Constitution of Ukraine and international
treaties consented to by the Verkhovna Rada (Parliament) of Ukraine. Any other evidence resulting
from the information obtained through significant violation ofhuman rights and fundamental freedoms
is therefore inadmissible.
The court shall be required to find significant violations ofhuman rights and fundamental freedoms,
in particular the following acts:
Conducting procedural actions which require previous permission of the court without suchpermission or with disrespect of its essential conditions
Obtaining evidence by subjecting a person to torture and inhuman or degrading treatment or
threats to apply such treatment
Violating the right of a person to defence
Obtaining testimony or explanations from a person who has not been advised of his right torefuse to give evidence or answer questions,or where these were obtained in violation of thisright
Violating the right to cross-examination
Obtaining testimony from a witness who subsequently will be found a suspect or accused inthese criminal proceedings
This evidence shall be found inadmissible during any trial except a trial when the issue of liability
for the said significant violation of human rights and fundamental freedoms as result a of which such
evidence was obtained.The court shall decide on admissibility of evidence during its evaluation while
retired for rendering a court decision. Where evidence has been found manifestly inadmissible during
trial the court shall declare such evidence inadmissible, which shall entail the impossibility of its
examination or termination of its examination if such was commenced.
The parties to the criminal proceedings and the victim may move during trial for evidence to be
declared inadmissible or raise objection against declaring evidence inadmissible. A decision made bya national court or an international tribunal which has taken legal effect and which holds that a
violation of human rights and fundamental freedoms set in the Constitution of Ukraine and international treaties has been committed shall have prejudicial significance for the court which decides on
evidence admissibility.
7. Whether Your Country Has Adopted a Hearsay-Rule (Excluding Out-of-Court Statements fromEvidence That May Be Related to the Defendantʼs Innocence or Guilt) in the Code of Criminal
ProcedureHearsay testimony is any be a statement made orally,in writing or in any other form with regard
to a certain fact,such statement being based on explanations of another person.The court shall havethe right to recognize as admissible evidence hearsay testimony irrespective of the possibility to
examine the person who provided the initial explanations,in exceptional cases if such are admissible
evidence in accordance with other rules of evidence admissibility.
When making such decision, the court is required to take into account the following:
Importance of explanations and testimony,should they be reliable,for ascertaining a circumstance, and their significance for the understanding of other knowledge

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Circumstances under which initial explanations are given which give rise to confidence in theirreliability
Cogency of knowledge with regard to the fact that initial explanations have been given
Difficulties for the party against which hearsay explanations and testimony were given indisproving such statements
Relationship between hearsay testimony and the interests of the person who has given thehearsay testimony
Possibility to examine the person who has given initial explanations, or reasons for theimpossibility of such examination
The court may find examination of a person to be impossible only if such person:
Does not appear in court because of death or serious physical or mental disease
Waives testifying in court under Article 63 of the Constitution of Ukraine or disobeys thecourtʼ
s request to give testimony
Does not appear before court and his location has not been established through conducting
required search measures
Stays abroad and waives testifying
Article 63 of the Constitution of Ukraine states that “A person shall not bear responsibility forrefusing to testify or to provide explanations about himself/herself,members ofhis/her family,or close
relatives,the circle of whom is determined by law.A suspect,an accused,or a defendant shall have theright to a defence. A convicted person shall enjoy all human and civil rights, with the exception of
restrictions determined by law and established by a court verdict.”
The court may admit hearsay evidence if the parties agree to recognize such as evidence.The court
may admit hearsay evidence if the suspect accused has created or facilitated the creation of circumstances under which the person concerned may not be examined. Hearsay testimony may not be
evidence of the fact or circumstance asserted unless it is supported by other evidence found admissible.
In no event shall hearsay testimony be admissible when given by an investigator,public prosecutor,
officer of an operational unit or another person with regard to any explanations given during thecriminal proceedings that they were conducting.
8. Whether There Are Any Methods/Measures Stipulated by the Code of Criminal Procedure toProtect Victims and Witnesses at Trial,for Example,Testimonyvia Video Link or Screening Crime
Victims from the Defendant
Court proceedings may be conducted through video conference with transmission from anotherpremise, including such as is located beyond the bounds of the court premises,(distant court proceedings)where:
It is impossible for a participant of criminal proceedings to participate directly in the court
proceedings for reason of health or for other valid reasons
It is necessary to ensure the personsʼsecurity
A minor or underage person is to be interrogated as a witness or victim
Such measures are necessary to ensure speedy court proceedings

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There exist other grounds recognized sufficient by the court
The court shall rule to conduct distant court proceedings proprio motu or on a motion of a party orother participants in criminal proceedings. Should a party to criminal proceedings or victim object
against conducting distant court proceedings,the court may decide to hold said proceedings only by its
reasoned ruling,having substantiated thereby the decision so taken.The court may not rule to conductdistant court proceedings with the defendant being outside of the courtroom if the latter object to it.
The use in distant court proceedings of technical means and technologies shall be required to ensure
adequate quality of image and sound, respect for the principles of publicity and openness of court
proceedings,as well as information security.The participants in criminal proceedings shall be ensured
the possibility to hear and observe the course of court proceedings,to put questions and get answers,
to realize other procedural rights granted them, and to perform procedural duties specified by the
Criminal Procedure Code.
If a person who is to participate distantly in court proceedings stays on any premises located in the
territory within this courtʼ
s jurisdiction or in the territory of the city where the court is located, thesecretary of court session of this court shall be required to hand over to such person a leaflet on his
procedural rights, check his ID, and stay at his side until the end of the court session.
The course and results of procedural actions conducted through video conference, shall be fixedwith video recording technical means. A protected person may be interrogated through video conference with such changes of appearance and voice as shall make his identification impossible. Distantcourt proceedings may be conducted in the first instance,appellate and cassation courts,the Supreme
Court of Ukraine proceeding in any matters within their competence.

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REPORTS OF THE COURSEGROUP 1
EFFECTIVE COLLECTION AND UTILIZATION OF EVIDENCE
IN CRIMINAL CASES
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
M embers

Adviser

M r. Kawata Hiroshige
M s. Sudti-Autasilp Bhornthip
M s. Svitlana Oliynyk
M r. Vuke Gray Luawabani
M s. Kongsrisook Unchalee
M r. Dhungana Prakash
M r. Parajuli Parmeshwar
M r. Bah Almamy Moussa
M r. Kiyota Shuusuke
M s. Suzuki Miki
M r. Vitalii Snegirov
M r. Oleh Harnyk
Prof. Iwashita Shinichiro(Japan)(Thailand)(Ukraine)(Vanuatu)(Thailand)(Nepal)(Nepal)(Guinea)(Japan)(Japan)(Ukraine)(Ukraine)(UNAFEI)

I. INTRODUCTION
Group 1 started its discussion on the 9th of September 2013.Upon consensus of the members of thegroup, M r. Kawata Hiroshige was elected as Chairperson, Ms. Sudti-Autalsilp Bhornthip as CoChairperson, Ms. Svitlana Oliynyk as Rapporteur, and Mr. Vuke Gray Luwabani as Co-Rapporteur.
The theme of the discussion of the group was “Effective Collection and Utilization of Evidence in
Criminal Cases”.The agenda for the discussion was as follows:A.Effective collection and utilizationof oral statements, 1. Significance of oral statements in criminal cases in each country, 2. Effective
methods of interview/interrogation, 3. Obtaining statements of suspects/accomplices ― utilization ofplea bargaining and immunity,4.Recorded statements of interviews/interrogation in each country;B.
Collection of objective evidence; C. Necessary measures to improve/develop investigation in eachcountry.

II. SUM M ARY OF THE DISCUSSIONS
A. Effective Collection and Utilization of Oral Statements
1. Significance of Oral Statements in Criminal Cases in Each Country
All participants emphasized the importance of the statements of witnesses,victims and suspects for
successful investigation of a specific criminal case and bringing the person who committed the crime
to justice. M ost of the group members agreed that to achieve the goal of appropriate sentencing, thefollowing elements of the crime must be established and proved during the pre-trial stage, as well as
at trial:
Person(s)(criminal(s))who committed the crime
M otive/cause of committing the crime
Direct/indirect intention in reference to committing the crime as well as to committing theresults of the crime
Specific actions executed by the criminal(s)Time, place
Accomplice(s)116155TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
During the discussions,participants paid attention to obtaining confessions from suspects.Everyoneemphasized the importance of obtaining confessions. Also, most of the group members agreed that a
confession given by a suspect during an investigation has to be repeated by the suspect in open court.
At the same time in spite of the importance of confessions, corroborative evidence shall prevail.
When a suspect (accused)confesses, the suspect should be granted a lighter sentence by the court.
Also participants noted that all statements have to be admissible in court in order to bring a criminalor criminals before the court. All statements are subject to evaluation by the investigator, publicprosecutor and especially the judge who makes the final decision and orders sentencing.
Statements of witnesses, victims and suspects must be compared. The group referred to the very
important issue of statements of accomplices. During discussions moderated by the adviser, Prof.
Iwashita Shinichiro, the participants from each country discussed a criminal case. The group considered situations in which the victim,co-offenders,criminal organizers(masterminds)and witnesses wereinvolved. Everyone agreed that the relationship between the organizer and co-offenders has to beestablished during the investigation. The points to be proved by an investigator are the intent of theorganizer,commands given to co-offenders by the organizer,and the impacts and results of the crime.
The group agreed that corroborative evidence is most important. The investigators as well as
judges have to evaluate statements given by the co-offenders as they might merely be seeking benefits
for themselves. The statements of the co-offenders as well as of the victims have to be accurate andmust be evaluated together with the statements of witnesses and corroborative evidence.
Also the group discussed measures to identify suspects. Generally phone and video recordings aswell as fingerprints and DNA are used during the pre-trial stage. However, some countries reported
that they do not use DNA evidence to identify suspects (for example, Vanuatu).
2. Effective M ethods of Interview/Interrogation
Looking at effective interview/interrogation, the group members discussed not only the current
situation but also challenges. Each represented country follows the principles of respect for humanrights and the rule of law.In each country,the right to keep silence is provided for and guaranteed by
the Constitution or Criminal Procedure Code.There are no doubts in ensuring this right to keep silence.
Nevertheless, this is a significant challenge for the investigator to collect corroborative evidence. It
often happens that statements of a suspect are helpful for discovering a crime in cases where there are
few witnesses.
The group agreed that the task of an investigator is to detect crime. Accordingly, investigators
should take statements through the way of effective investigation and interrogation.Usually investigators of each represented country use the P.E.A.C.E. model to conduct investigations.The reason is toensure the admissibility of statements in court.
In some countries,interrogation techniques like REID are used as well.On the one hand,there are
no doubts that these techniques are very helpful.On the other hand in some countries the usage of the
REID technique raises a question of admissibility of statements in a court (violation of human rights
as well as the right to keep silence at any moment of interrogation without being forced to givestatements by an investigator).
The group discussed an issue on improving interrogation.This goal could be reached by participation of officials in need to improving their skills in special training programmes, including theexchange of knowledge at the international level. Also, textbooks/manuals are very helpful not only
for junior but also senior investigators. At the same time, the junior investigators must be taught by
the senior investigators how to conduct interrogation properly.
During the group workshop, participants shared their best practices in the field of successfulinterview/interrogation. One more question was raised concerning persuading the suspect to confess.
Speaking about confession,Japanese participants emphasized the necessity to persuade the suspect toconfess, especially in cases where the suspect denies having committed the crime. Also, confession is117

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not only a way to collect evidence but also to discover other criminals. At the same time there is noneed to persuade the suspect to confess if other evidence is sufficient.
The Ukrainian participants explained that confession is not obligatory;much more important iscorroborative evidence which proves guilt.Confession is the right of an offender for whom the right tokeep silence is guaranteed under the law.Deliberate and voluntary confession is a good way to collectsufficient evidence.The Nepalese participants also agreed that it is reasonable to persuade suspects toconfess.Ifthere is corroborative evidence in a case,a confession is evidence which is taken into accountby the court. Representatives from Thailand also agreed that the decision has to be made by a judge
on the basis of corroborative evidence, and confessions should not prevail in a specific criminal case.
Confession must be considered as one form of sufficient evidence.The participants from Vanuatu andGuinea stated that in cases with enough corroborative evidence,confessions are not necessary.In any
case it is obvious that, using all investigative techniques for effective interrogation and effective
collection of evidence, an investigator must follow the rules of the criminal procedure code of thecountry in which the investigator operates.
3. Obtaining Statements of Suspects/Accomplices ― Utilization of Plea Bargaining and Immunity
After discussion, it was found that plea bargaining is utilized in the following countries:Ukraine(covered by the Criminal Procedure Code), Guinea (covered by the Criminal Procedure Code), Nepal(there are no provisions of general criminal procedure but it is provided for in specific laws regarding
narcotic drugs,human trafficking,money-laundering,corruption and organized crime),Vanuatu (there
are no provisions in the criminal procedure code, but it is used in practice).
As for Japan, currently there is no plea bargaining in the criminal procedure code. This questionis under discussion for adoption bythe Legislative Council.As for Thailand,there is no plea bargaining
in the Criminal Procedure Code. Whether or not to adopt plea bargaining is a question that is underdiscussion.However,there are provisions which empower the court to lessen the sentence ifthe accusedgave useful information to the investigator or the court.
In Ukraine the following types of agreements may be concluded in criminal proceedings:
reconciliation agreement between the victim and the suspect or the accusedplea agreement between the public prosecutor and the suspect or the accused about pleading
guiltyThe plea agreement may be concluded upon initiative of the public prosecutor, the suspect or theaccused. The plea agreement between the public prosecutor and the suspect or the accused may beconcluded in proceedings in respect of criminal misdemeanors, as well as crimes of minor or medium
gravity, grave crimes, the perpetration of which caused damage only to state or public interests.
Conclusion of the plea agreement in criminal proceedings with the participation of the victim shall not
be allowed.Conclusion of a reconciliation agreement or a plea agreement may be initiated at any time
between the moment of notifying the person of the suspicion and retirement of judges into thedeliberation room to pass the sentence/judgement.In case of failure to reach an agreement,the fact of
initiating conclusion of the agreement and the statements which were made to arrive at an agreement
may not be considered as refusal from prosecution or pleading guilty.The agreement shall indicate thedate of its conclusion and shall be signed by the parties. If an agreement was reached at the stage ofpre-trial investigation, the indictment together with the agreement signed by the parties to it shall bereferred to court without delay. The court shall verify whether the agreement complies with therequirements of the law.If the court makes sure that the agreement may be approved,it shall pass thejudgement by which it approves the agreement and imposes the punishment agreed between the parties.
4. Recorded Statements of Interviews/Interrogation in Each Country
At the end of discussion of Chapter A, participants also paid attention to the recording of statements. All participants noted that statements should be in a written form. At the same time video
recording is not used in Nepal and Vanuatu.These written and video records are admissible evidence
in a court.Also such video records prove the legality of the process of taking statements and prevent

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ill-treatment.
In Japan police officers and prosecutors conduct interviews or interrogation of suspects, victims,
witnesses and accomplices. Police officers and prosecutors write the statements, which have to bechecked by the interviewed or interrogated person.If there are no mistakes,the statement is signed by
the interviewed or interrogated person.Interviews or interrogation of suspects may be video recorded.
Also statements have to be disclosed to defence counsel. At trial the defendant has to be examined.
Video recording is a measure to prove at court that the statements were taken voluntarily and legally.
In Thailand it is required by law that the statements of suspects,victims,witnesses and accomplices
have to be recorded in written form.Interviews might be video recorded.However,in the case ofa childvictim/witness, the law requires that the investigator arrange a video and voice recorder for theinterview which is able to be continuously transmitted as evidence. All evidence collected during
investigation can be used at trial provided that they were obtained lawfully.
In Nepal suspectsʼstatements are recorded in written form by a police officer at the prosecutorʼ
soffice. The statements are not audio-visually recorded. The written statements are signed by theinvestigator,the public prosecutor and the suspect as well.Suspects must repeat the statements before
the judge at trial as well.
In Vanuatu whether or not there is a confession, there must always be sufficient evidence. At thesame time, corroborative evidence is very important. If there is no confession taken from the suspect
and only circumstantial evidence is provided, then a decision to prosecute depends on how muchcircumstantial evidence exists.
In Guinea a confession is not needed as evidence, but corroboration of evidence is important.
Offenders can be taken to court without having confessed.Suspects can be released and personal details
must be obtained by police to appear in court when all elements are established.
In Ukraine the course and results of a procedural action shall be entered in the record. If during
pre-trial investigation procedural action may be recorded with technical means,the appropriate entry
should be made in the record.Before signing the record ofprocedural action,participants shall be given
the possibility to review its text. Comments and amendments shall be placed in the record before
signatures. The record is signed by all participants to the conducted procedural action. If a person,
because of his physical disabilities or any other reasons,cannot personally sign the record,such person
may review the record in the presence of defence counsel (legal representative) who attests with hissignature contents of the records and to the fact that the disabled person cannot sign the record
personally. If a person who participated in the procedural action refuses to sign the record, this ismentioned in the record, and such person shall be given the right to explain in writing the reasons
therefore, these explanations being entered in the record. Refusal to sign the record or to provide
written explanations with regard to the reasons for the refusal shall be attested by the signature ofdefence counsel (legal representative),and where such is not available,this shall be signed by attesting
witnesses. Procedural actions during criminal proceedings may be recorded with the use of technicalmeans including video. Photographing, audio or/and video recording may be made during interviewing.
The decision on recording procedural action with the use of technical means during pre-trial
proceedings including examination of matters by the investigating judge,shall be made by the person
who conducts the procedural action concerned.Upon motion of the participants to a procedural action,
the use of technical means for recording is compulsory. If interrogation is recorded with technicalmeans, the text of the testimony may not be entered in the relevant record on condition that none ofthe participants in this procedure insist upon this.In such case,entry should be made in the record thatthe testimony has been recorded on a medium that is attached to the record. The testimonyofa suspect
which has been obtained by an investigator during an interviewing is evidence. If the examination isconducted in compliance with the law and it contains information that is relevant to criminal proceedings, the results of this investigation may be evidence of the guilt of the suspect. Simultaneously the
court may base its findings only on testimony taken directly during court sessions or those obtained

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under the rules of the Criminal Procedure Code of Ukraine.The court may not base court decisions on
testimony given to investigators, public prosecutors, or refer to such.
5. Some Basic Provisions of the Criminal Procedure in Selected Countries
JAPAN
Effective collection and utilization of oral statements
The police are the primary investigative agency in Japan.The vast majority of criminal cases
are investigated by the police and referred to public prosecutors. As the police do not have thepower to make charging decisions,all cases investigated by the police must be sent to publicprosecutors for disposition. Public prosecutors are fully authorized to conduct criminal
investigations, and they actively supplement police investigation by directly interviewing
witnesses and interrogating suspects.
Police officers and public prosecutors may ask suspects to appear in their offices for interrogation, and suspects under arrest or detention are obligated to comply. However,the Constitution guarantees the right against self-incrimination, and the CCP requires investigators to
notify the suspect, in advance of the questioning, that he or she is not required to make any
statement against his or her will.
In order to be admissible at trial, confessions must be voluntarily made. In this regard, CCP
provides that “
confession made under compulsion,torture or threat,or after prolonged arrest
or detention,or which is suspected not to have been made voluntarily shall not be admitted inevidence.”
Written statements are admissible as evidence if the defendant consents to their use, or they
are admissible as one of the hearsay exceptions provided for in the CCP.
When a witness is unavailable to testify at trial, written statements taken by a publicprosecutor and signed by the witness may be admitted as a hearsay exception. Likewise,if thewitness takes the stand but the testimony differs from previous statements,prior inconsistentstatements taken by a public prosecutor and signed by the witness may be admitted as hearsay
exceptions, provided there is a circumstantial guarantee of trustworthiness.
UKRAINEOn 20 November 2012, the New Criminal Procedure Code of Ukraine came into force. This Codeestablished a new procedure for an electronic record of crime that is an Integrated Register of
Pre-Trial Investigations. Most important aspects of the Criminal Procedure Code of Ukraine are thefollowing:
enhancing protection of victims
widening rights of defence
specialization of the investigators and judges in criminal proceedings in respect of minors(juvenile justice)humanization of preventive measures (detention is an exceptional restraint measure)investigative judges
reasonable period of timejury trial
agreements in criminal proceedings (reconciliation and plea agreements)

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cancellation of additional investigation
public prosecutor leads an investigation
VANUATU
Victim impact statement and protection of victims
Juvenile legislation
M odern technology legislation (phone calls, video recording, etc.)
Evidence Act
Leadership Code Act
B. Collection of Objective Evidence
The main aim for collection of objective evidence is to establish the objective truth in a specificcriminal case. Scientific investigation techniques gain importance in the course of effective investigation.Nowadays DNA,fingerprints,autopsies,analysis of security camera footage,GPS,digital forensics, etc., are widely used and support the sufficiency of the effective investigation.
In Thailand all types of possible scientific techniques are used,for example,fingerprints,autopsies,
forensic pathology, toxicology and chemistry, document examination, firearms and gunshot residues,
analysis of security camera footage, GPS, and DNA analysis. Usage of DNA started about twenty
years ago. The new DNA testing techniques have been used over the last ten years. DNA analysis ismostly used in criminal case. This technique is also used in other cases including missing-person
identification and parentage testing. However, DNA analysis can be used only in identifying whose
DNA it is.But why it was attached to such evidence is the responsibility of the investigator to find out.
The challenge of DNA analysis is to establish a DNA database system and legislation,and standardize
the system as an intelligence tool in order to solve and prevent crime before crime commission occurs,
to save money and to exonerate the innocent from accusations of crime. Since digital evidence is in
its infancy in Thailand,another challenge is the improvement of digital forensic techniques to keep up
with the development of technologies.
In Nepal there are two forensic labs.Forensic techniques such as DNA analysis are widely used incases of identification of the deceased as well as for the purpose to identify bodies in criminal cases.
DNA examination facilities are available at the National Forensic Laboratory only.A DNA databaseis being established. Also, autopsies are used in Nepal, and they are done in every district at thehospital (a separate Autopsy Department is situated in Kathmandu). There is also the group SOCO
(scene of crime officials)in Nepal which is very effective for observation and investigation of a crime
scene with appropriate tools.SOCO exist in each district of Nepal.At the same time fingerprint experts
are available only in the capital of Nepal ― Kathmandu. Security cameras are used in some public
places and offices but are not very sufficient. GPS and digital forensics are used. In Nepal, it is also
possible to determine the location of a suspect who uses a cell phone at the moment it is being used.
In Japan effective investigation includes scientific investigation techniques. But some scientificforensic techniques such as GPS must still be adopted.Currently,it is necessaryto enhance wiretapping
for specific criminal cases.
In Vanuatu DNA is not used, in situations where DNA is collected it is send to Australia for
analyzing. Fingerprints are widely used but fingerprint experts need to spread across the country.
There are no security cameras anywhere, but they exist in the airport.
In Guinea DNA analysis, fingerprint analysis and video recording are essential technologies used
to identify and locate the suspect. The central information committee is in charge of collecting andanalyzing evidence.

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In Ukraine a variety of forensic techniques are used,especially DNA analysis,fingerprint analysis,
autopsies, digital forensics, analysis of security camera footage, etc. At the same time there is no
general DNA database.
C. Necessary Measures to Improve/Develop Investigation in Each Country
M ost of Group 1 agreed on the necessity to improve investigation,especially through upgrading of
personal skills of officials.
In Japana) The necessity to analyze the methods of interrogation.There must be training for investigators and prosecutors to upgrade their skills.
b) Reasonableness of recording the interrogation and to conduct effective interrogation.
c) The scientific investigation ― necessity to draft it in case it is not covered by the law.
d) Organized crime. Suspects and accomplices do not tell the truth.
e) Introduction of plea bargaining. But before doing so,it is necessary to study foreign experiences and to consider the effectiveness of plea bargaining.
In Vanuatu
There are laws that have been adopted for the apprehension of offenders anda) there are still trainings to be done in investigation;b) video and audio recording of interrogation,c) Interrogation methods,d) Forensic analysing of computers and mobile phones.
Though there are a number oflaws that address the collection ofevidence,there is a need to develop
an evidence act and other legislation.
In Guinea legislation provides for practices of investigation,such as phone call information,verbal
questioning, video recording, photographs, biomedical analysis, which are gathered by the police andthe general investigation service throughout the country. The service is under the control of the
Attorney General.
In Thailanda) Continuous training for personnel involved in law enforcementb) Domestic and international cooperationc) Amendment of laws to catch up with the new technologies
In Nepal
Evidence-based investigation and prosecution:a) Creating a separate Crime Investigation Police Branch of the Nepal Police.
b) Establishing well-equipped forensic labs in the five regions throughout the country.
c) Enhancing public security using security cameras in most public areas, offices and streets.

122155TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSEd) Enabling the Nepal Police to use digital forensic evidence bystrengthening their capacityandbuilding infrastructure for it.
e) Establishing well-equipped separate detention centres throughout the country.
f) M aking well-equipped office buildings for every District Public Prosecutorʼs Office andDistrict Police Office with sufficient physical resources including separate interrogation
rooms in every District.
g) By strengthening interviewing and interrogation techniques by using the PEACE and REID
models and improving other skills of Public Prosecutors and Investigating Police Officers
through On the Job Training (OJT) and making international training courses available tothem.
h) Enacting as soon as possible legislation (three unified bills)which have already been submitted to Parliament and which are necessary to modernize the criminal justice system of Nepal.
(Criminal Code, Criminal Procedure Code and modernized sentencing and victim friendly
sentencing bills). Witness protection and perjury laws are also necessary to improve thecriminal justice system of Nepal.
i) Creating working environments in which the Nepal Police and Public Prosecutor can function
independently and effectively for the interest of society.
j) Creating effective cordial relationships between the Nepal Police and Public Prosecutors.
k) Developing international cooperation.
In Ukrainea) Improving, upgrading skills of investigators and prosecutors through personal studying aswell through specific trainingb) Setting up the general DNA databasec) Developing investigative and interrogation techniques, including the REID and P.E.A.C.E.
modelsd) Adoption of the New Criminal Misdemeanors Codee) Establishing the State Bureau of Investigation within the New Criminal Procedure CodeIII. CONCLUSIONS AND RECOM MENDATIONSAt the end of the discussion, Group 1 agreed on the following recommendations ―Taking every possible measure to follow the rule of law in each presented country.
Enhancing the effectiveness of the investigation of criminal cases in each presented country;
adoption of appropriate legislation for effective interrogation methods.
Sharing the best practices in the field of criminal justice and criminal law.
Developing international cooperation in the field of criminal justice and criminal law.

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GROUP 2
EFFECTIVE COLLECTION AND UTILIZATION OF EVIDENCE
IN CRIMINAL CASES
Chairperson
Co-chairperson
Rapporteur
Co-rapporteur
Members

Advisers

M r. Mahmood Saleem
M r. Andrey M endonca
M r. Alexandru Victor Bejenaru
M r. Kinlay Wangdi
M r. Azer Ramiz Taghiyev1
M r. Abdulla Shatheeh
M r. Sonam Tashi
M r. Tandin Dorji
M s. Miwa Namekata
M r. Tetsuya Hagioka
M r. Toru Kodama
M r. Takayuki Fukushima
Prof. Yukako MioProf. Yusuke Hirose(M aldives)(Brazil)(M oldova)(Bhutan)(Azerbaijan)(M aldives)(Bhutan)(Bhutan)(Japan)(Japan)(Japan)(Japan)(UNAFEI)(UNAFEI)

I. INTRODUCTION
Group Two started its discussion on 9 September 2013 at 0940 hrs.The group elected,by consensus,
M r.Mahmood Saleem as its Chairperson,Mr.Andrey M endonca as its Co-chairperson,Mr.Alexandru
Bejenaru as its Rapporteur, and M r. Kinlay Wangdi as its Co-rapporteur. The Group, which was
assigned to discuss “Effective Collection and Utilization of Evidence in Criminal Cases”, agreed to
conduct its discussions in accordance with the following agenda:1)Effective collection and utilizationof oral statements;2)Collection of objective evidence;and 3)Necessary measures to improve/develop
investigation in each country.

II. SUMMARY OF DISCUSSIONS
M r. Andrey, the co-chairperson, suggested that for each subtopic, discussions should be based onquestions which could be formatted into a table to save time, and later converted into a report. All
participants agreed to proceed with the group work in the format as suggested by M r. Andrey. The
group decided to discuss the three broad topics of discussion country-wise and agreed to conduct its
discussion in accordance with the following format.
A. Significance of Oral Statements in Criminal Cases in Each Country
1. Significance of Statements of Suspects
The questions/points on the said topic to be discussed by the group as agreed and the prevailingsituation regarding these matters in the participating countries are summarized as follows:(a)The suspect has the right to remain silent
All the countries stated that the suspectʼs right to remain silent is in place in their respective
countries.There were some discussions on the pros and cons of the suspect having the right to silence.
Some participants stated that the right was not necessary while others said that it is crucial.However,
the group unanimously agreed that the right to remain silent is a basic human right conferred upon an
individual based on natural principles of justice.
(b)Can the suspect be punished if he lies? Any negative consequences?
Except for the countries of Bhutan and Moldova, the rest of the countries stated that they do nothave any punishment for the offence of lying by the suspects either during investigation or during trial.
In Bhutan, the Penal Code of Bhutan provides for the offences of deceptive practice, perjury and1Mr. Azer Ramiz Taghiyev had to leave training on 21st September, 2013 due to unavoidable circumstances.

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hindering prosecution for lying during an investigation or during trial.In M oldova,the suspect may bepunished for lying only during trial at the court.
(c) Do you ask further questions if the suspect remains silent?
The participants stated that asking further questions after the suspect chooses to remain silent is
not illegal. Participants of some countries stated that further questions are asked to the suspect even
if the suspect remains silent. This is done so that the investigator can allow the suspect speak on
different issues which may be relevant for the case,and so that there is every chance that the suspect
might speak on some other issues though he remains silent on some issues. On the other hand, somecountries stated that once the suspect remains silent, they do not ask any further questions to thesuspect because they see no reason to ask anything to somebody who remains silent. Further, theparticipant from Brazil stated that in Brazil, police officers do not ask questions to suspects who
remain silent. By doing this, the suspect would not be able to prepare and anticipate the questions
which could be asked in court.
(d)Can defence counsel be with the suspect during interrogation?
The participants from Azerbaijan and Moldova stated that it is mandatory for the defence counsel
to be present with the suspect during interrogation.The participants from Brazil and Maldives statedthat the defence counsel may be present with the suspect during interrogation if the suspect so desires.
The participants from Bhutan stated that presence ofdefence counsel with the suspect during investigation is not a right and the investigating officer has the discretion to disallow counsel if his presence islikely to hamper the investigation. However, during the trial, defence counsel can be present if hewishes to.Lastly,the participants from Japan stated that defence counsel is not allowed to be present
with the suspect during investigation.
(e) Can the suspect be convicted just based on confession?
Except for the participants from Bhutan and Maldives, other participants stated that a suspect
cannot be convicted based on confession, and other strong evidence is required to support the confession.The participants from Bhutan stated that in Bhutan,the judge may convict a suspect based on his
confession but in such cases the judge has to be fully satisfied of the commission of the offence by thesuspect, and it also depends case by case and happens rarely. The Maldivian participants stated thatthe accused could be convicted based on his confession during trial provided that the accused is in asound state of mind and confesses in court.
(f) Whether or not defendants who confess should receive lighter sentences?
Except for Japan,in the remaining five countries,the defendants who confess could receive lighter
sentence. M oreover, in Brazil, such a defendant is even granted a pardon if his confession was usefuland significant to the prosecutor, and in M aldives, a suspension of sentence may also be given to thedefendants who confess to drug-use offences.On the other hand,the Japanese participants stated thatin Japan, their laws do not provide for any lighter sentences for the defendants who confess but inpractice, the sentencing could be more lenient if they confess.
(g)Relationship between the suspect and defence counsel during investigation; can defence counsel
answer on behalf of the suspect during interrogation?
Some participants stated that defence counsel may guide the suspect but cannot advise him during
interrogation and cannot answer on behalf of the suspect.However,police officers sometimes allow thedefence lawyer to be present during interrogation. Some participants stated that the defence lawyer
could advise the suspect only during their visits and the investigator may allow the presence of the
defence lawyer if his presence does not hamper the interrogation. Some participants stated that thedefence lawyer could ask questions to the suspects to clarify a suspectʼs statement.
(h)Coercion during interviewing/interrogation of suspects during investigation
Participants from Brazil and Bhutan stated that in their countries,suspects are sometimes coercedor tortured to make them confess during their interrogation.Statement obtained in such cases are notadmissible in court and the burden of proof lies with the defendant.Participants from Japan,Azerbaijan, M aldives and Moldova stated that in their countries, the prosecutors have to prove in court thatthe statement produced by them in the court was taken voluntarily without any coercion, duress or

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undue influence.
(i) Problems faced by countries relating to the statements of the suspects were discussed as follows:
1) Participants from some countries stated that they had problems in the investigation process.
There was a lack of professional training of the investigating officers on interviewing andinterrogation. There was either a lack of or shortage of scientific aids to investigation like
video and audio recording,lie detectors,etc.in manypolice stations,and there were no properinterrogating rooms in many police stations of some countries.
2) Some participants stated that the possibility of the suspect or defendant to retract theirstatements during investigation or during trial is very high.The lack of laws to penalize thesuspects during the investigation stage itself tempts the suspect to retract his statement in acourt of law during trial.
3) Some participants stated that the right to remain silent may sometimes be used as a strategy
by defence counsel and there should be a difference between the right to remain silent anddenial or telling lies.
4) Some participants stated that it is very difficult to prove perjury in some countries due to thestrict standard and it is impossible to establish perjury as an offence. Since a lot of resources
are spent in verifying the statements of the suspects, lying by suspects should be controlled
by punishment.
5) Some participants stated that if the suspect remains silent during investigation and starts
talking in court, thatʼs something which should be objected to as it takes a lot of time toprove, and if the suspect starts talking aat trial, the suspect could be questioned about thecredibility of the suspectʼs statement.
6) Some participants stated that there should be a difference between the right to remain silent
and telling lies and the two should not be taken together. The right to remain silent should
be a human right whereas lying should be made an offence by the concerned state.
7) The lack of sentencing guidelines such as a separate sentencing law also affects the judges
in rendering just and appropriate sentences for the offenders. The participants from Japan,
Bhutan and Maldives stated that there are no sentencing guidelines.However in Brazil,there
is a guideline for the judge to award sentences.In M oldova and Azerbaijan,there are generalprinciples written in the criminal procedure but there are no separate guide books on thematter.
2. Significance of Statements of Victims
The significance of statements of victims was discussed as follows:(a)SignificanceAll the countries agreed that the statements of victims are very significant in the investigation of
criminal offences. Some participants stated that a victimʼ
s statement could be considered as evidence
in a court of law, and could be used for the discovery of evidence and to establish the commission of
an offence. It could be used to identify a crime scene and could also be used in court to corroborate
other evidence.Some participants stated that victimʼ
s statement is very valuable evidence especially in
sex-related offences and other offences like robbery, sex offences against children, domestic violence
and assault cases where there are no other witnesses. However in most cases,the victimʼ
s statement
should be accompanied by other evidence.Some participants stated that the victimʼ
s statement is very
important since it gives clues to the investigator.
(b) Whether victims could be punished for perjury for lying during investigation and during trial
The participants from all countries except Brazil stated that the victims could be punished for
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victims cannot be punished for lying as they do not take oaths, but they could be liable for false
denunciation. The participants from Japan stated that victims could be punished for perjury only
during trial, with some exceptions.
(c) Can the court convict the defendant solely based on the victimʼ
s statement
The participants from Azerbaijan,Bhutan,M aldives and Moldova (with some exceptions for somecountries) stated that the defendant cannot be convicted by the court solely based on the victimʼ
sstatement as it has to be corroborated by other strong evidence.On the other hand,participants from
Brazil and Japan stated that the defendant could be convicted based solely on the victimʼ
s statement
especially in sex offences and crimes where there are no witnesses,but it depends on the reliability ofthe statement of the victims and the full satisfaction of the judge.
(d)Problems faced by countries in relation to the statements of victims
1. M ost of the participants stated that they do not have a system of proper protection of victims
or programmes for their protection,and that they lack experts,trained manpower or specialized agencies to interrogate and interview or to protect the victims.Some participants statedthat the victimʼ
s statement may give a wrong impression to the investigator. The victimʼ
sstatement might make the offence appear heinous but may turn out to be a minor offence.
Therefore in order to obtain the most truthful statement,the investigator should be properly
trained and professional.
2. Some participants stated that victims may sometimes retract their statements due to fear or
due to coming to an agreement with the accused. The non-cooperation from the side of thevictim in the investigation adversely affects the prosecution of crime.
3. The participants from Japan also stated that it is verydifficult to prove the offence ofperjury
in a court of law.
3. Significance of Statements of Witnesses
The significance of the statement of witnesses in each country and the problems faced werediscussed as follows:(a)SignificanceThe participants from all countries agreed that the statement of witnesses in a criminal case is verysignificant.The participants from Brazil,Bhutan and M aldives stated that the statements of witnesses
could be used as oral evidence or testimony in a court of law.The participant from Azerbaijan statedthat the statements of witnesses can be significant only in certain criminal cases.The participants fromJapan stated that when the objective evidence is not very strong, statements of witnesses are very
important.
(b) Whether prosecutor can prepare the witness before trial
The participants from all countries stated that the prosecutors can prepare their witnesses before
trial, although it is not commonly practiced in some countries, like Azerbaijan and Brazil. The
participants from Japan stated that as per their criminal procedure rules,there is an obligation on thepart of the prosecutor to confront and prepare witnesses before trial but during such times, theprosecutors do not try to guide and direct the witnesses but rather confirm the testimony of the witness
as required by law and refresh and make the witnesses anticipate questions from defence counsel.
(c) Type of witnesses ― interested and disinterested witnesses
The participants from Azerbaijan, Moldova and Japan stated that in their respective countries,
some witnesses who are related as family members of the suspect can refuse to stand as witnesses orgive statements against the suspect. The participants from Bhutan stated that in their country, inpractice, the statement of witnesses who are related (interested witnesses) is not admissible during
investigation or trial. The participant from Brazil stated that familymembers and interested witnesses
could be refused by law to be witnesses but the judge could oblige if he deems it important,but in suchcases, they do not swear an oath. The participant from Maldives stated that as per their Sharia law,

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all statements of witnesses either related or not are admissible in a court and moreover statements offamily members against their other family members are strongly considered.
(d)Special measures for protection of vulnerable or intimidated witness ― which measures
M ost countries have special measures for the protection of vulnerable or intimidated witnesses like
video conferencing or linking,in-camera hearings,distortion of voice and image,use of intermediaries
and masks,separation of witnesses from the suspects,excusing the witnessʼ
s presence at trial,providing police protection and witness shielding.In all participating countries,the protection of vulnerable
and child witnesses is prioritized. Some of the countries like Azerbaijan, Moldova and Bhutan havespecial laws relating to the protection of vulnerable and child witnesses while in most of the countries,
special measures of protection are provided in practice though not provided by law. In most of thecountries, children and vulnerable witnesses are investigated in the presence of their parents or legal
representatives and psychologists.
(e) Problems faced by the countries in relation to statements of witnesses
1. Some participants stated that there is a risk of retraction of statements by the witnesses ina court of law if the statement of the witness is not supported by other evidence,which would
lead to the failure of the case.
2. Some participants stated that there is a lack of proper interviewing rooms in most of thepolice stations and also the interviewers are not trained in the interviewing techniques,
especially such techniques for interviewing children and vulnerable witnesses. In mostcountries, advanced witness protection programmes and trained personnel are also not inplace. The participant from Moldova stated that the procedure to obtain permission for theprotection of witnesses is very difficult.
3. Some participants stated that since the prosecutors do not prepare their witnesses for trial,
it becomes difficult to get the best testimony from the witnesses during trial.
4. Some participants stated that in their country,there are no laws regarding witness protection
and they lack institutional and human resource capacity.There is also the problem oflengthy
trial or delay in trail which greatly hampers criminal justice.
5. Some participants stated that it is impossible or very difficult to change the identities of
witnesses and to re-locate them.
4. Significance of Statements of Accomplices
The significance of the statement of accomplices in each country and the problems faced werediscussed as follows:(a)SignificanceAll the participants stated that the statements of accomplices in their respective countries is verysignificant mainlyin cases where the accomplices confess to committing the crime,and in countries like
Japan, it could also be one of the main pieces of evidence. The statements of the accomplices are
required to prove the conspiracy in committing the crime and to indict the accomplice himself. The
participants from M aldives and Moldova stated that statements of the accomplices should be accompanied by other evidence and as per the participant from Brazil,if one of the accomplices made anagreement with a prosecutor to tell the truth, he must do so in court or else he may be punished for
obstruction of justice.As per the participant from Azerbaijan,the accomplicesʼstatement is importantfor cross examination and the accomplices must be provided legal aid by the state.
(b) Whether a judge can convict an individual solely based on the statement of the accomplice
The participants from all countries except Japan stated that in practice,a judge will not convict anindividual solely based on the statement of the accomplice, and it has to be corroborated by otherrelevant evidence. In Japan, a judge could convict the suspect solely based on the accomplicesʼstatement but the judge must be satisfied with the credibility of the accomplice.

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155TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE(c) Could the accomplices be cross examined by the other defendant
The participants of all the countries stated that in their countries, the accomplices could be crossexamined by the other defendant.
(d)Problems faced by the countries in relation to the statements of accomplices
1. Some participants stated that accomplices do not usually cooperate with the police for fearof being indicted and at times retract their statements in court.
2. Participants from Brazil and Japan stated that it is very common that accomplices makeuniform false statements and most of the time in cases of organized crime they are protectedby their organization.
3. The participants from Maldives stated that the same lawyer can represent many suspects
who are accomplices and accomplices may be intimidated by the suspects, and moreover
there were no written laws on the subject.

III. EFFECTIVE M ETHODS OF INTERVIEWING/INTERROGATION
A. Current Situation in Each Country
The current situation and challenges of interviewing/interrogation in each country and theapproaches to enhance the ability of interrogators were discussed as follows:
1. Current Problems/Challenges of Interviewing/Interrogation
Participants from most countries stated that in their respective countries there are no properinterviewing/interrogation rooms in most of the police stations and and that they lacked scientific aids
to investigation like audio-and video-recording systems, etc. The participants also stated that there
was a lack of trained,specialized,skilled and professional/expert interviewers and interrogators andan absence of a set of reference guidelines for interviewing and interrogation. The participant from
Azerbaijan further stated that in his country, there were many investigative agencies for various
specific crimes,and,due to this,there were separate research institutes and academies but no uniform
institute specifically for interviewing/interrogation. The participant from Brazil also stated that
disclosure of all evidence to the suspect and his lawyer at any time during investigation and trial,even
before interrogation, is a disadvantage for the interviewers/interrogators. The participants fromM aldives stated that in their country there was a different set up of interviewing and interrogation ofsuspects whereby it is mandatory to have the presence of two officers besides the investigator towitness the interview/interrogation and both officers have to sign the defendantʼ
s statement,confirming that the suspect has been interviewed and given his statement in their presence.Therefore,it is feltthat it is not necessary to have the presence of the two officers. Lastly, the participants from Japan
stated that in Japan,there is no organized,systematic or set techniques of investigation and mainly thetechniques are taught by the seniors to juniors. Moreover in some cases, investigators obtain false
statements,and in cases where the the recording and use of other investigative aids would be requiredby law, it would be a challenge for the Coast Guard in Japan.
(a)Current approaches to enhance the ability of interrogators
1. All the participants stated that more domestic and foreign training programmes in interviewing/interrogation for the investigators were needed and programmes for training of trainers
in the field of interviewing/interrogation in countries with professionalized and developed
systems are required so that they could train the officers back home.
2. The participants stated that proper, well-equipped and modernized interview/interrogation
rooms in all the police stations of the respective countries need to be established, and thelatest and modernized scientific aids to investigation like audio and video recording, lie
detectors, etc., should be developed and provided to all police stations.
3. Some participants also stated that a manual of uniform guidelines for interrogation and

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interviewing encompassing the best practices of other countries needs to be formulated anddisseminated for reference.
4. The participant from Brazil further stated that the problem of disclosure of evidence even
before interrogation in Brazil needs to be reconsidered.
5. The participants from Maldives stated that the adoption of different interview/interrogation
techniques may help in the improvement of the interviewing/interrogation and in theircountry investigators are encouraged to follow the PRICE (P-Preparation, R-Rapport, IInformation gathering, C-Confirmation and Clarification, E-Evaluation)method of interviewing/interrogation. However, these techniques adopted by the countries should be taken
into consideration to be implemented by the investigators and the investigators should also
possess legal knowledge.
6. The participants also stated that cooperation from other relevant agencies should be madepossible and encouraged.
7. The participant from Moldova stated that interviewing/interrogation techniques could be
improved with the assistance from more experienced investigators or a psychologist, andsince the behaviour of a suspect is the most important, the presence of a person trained inhuman behaviour should be encouraged.
8. The participants stated that the police and the prosecutorʼ
s office should come to a consensus
regarding the basic principle of interviewing/interrogation developed in their countries.Also,
specialized training of the interviewers of mentally disabled persons should be provided,and
recently in the police,the transfer of techniques from the senior to the junior officers has been
initiated.
9. Finally, all the participants agreed that countries should adopt and implement the various
developed and set techniques of interviewing/interrogation prevalent around the world but
these techniques could be modified and developed in such a manner that is most suitable andapplicable to the respective countries.
1. Effective Methods of Interviewing/Interrogation
The effective methods of interviewing/interrogation in each country were discussed as follows:(a) Methods of interviewing/interrogation (PEACE Model/Cognitive Interviewing (UK) or Reid
Technique (USA) or any other)
The participants from Japan stated that their technique of interviewing/interrogation is similar to
the PEACE model and at present, the Public Prosecutorʼs Office is researching both the PEACE and
REID models. The participant from Azerbaijan stated that in Azerbaijan, there are some elements of
the PEACE model but they have established their own model and there are provisions in laws on how
to interview/interrogate. The participants from Bhutan and M oldova stated that in their countries,
some elements of the PEACE model are adopted but there are no specific models.The participant from
Brazil stated that there were no specific models of interviewing/interrogation in his country,and theparticipants from M aldives stated that though the PRICE model is being practiced,there is no specificmodel in general.
(b)Can the suspect be persuaded to confess
All the participants agreed that the suspect could be persuaded to confess in their respective
countries. However the participants from Maldives stated that though it is possible to persuade thesuspect to confess, the need to do so is generally not felt,and the participants from Japan stated that
it is not only possible to persuade the suspect to confess but there is also a need to persuade the suspects
to confess though it takes much time.

130155TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE(c) Will you still use the statement of the suspect in a court even if there is a risk of being rejectedby the court?
All the participants agreed that the statement of the suspect could be used in court even if there isa risk of being rejected by the court. However, the participants from Japan stated that it depends onthe case and if the risk of rejection by the court is minor and the statements are significant, publicprosecutors would try to use the statements as evidence.

IV. OBTAINING STATEMENTS OF SUSPECTS/ACCOMPLICES ―UTILIZATION OF PLEA BARGAINING IMMUNITY
The utilization of plea bargain immunity in countries which have the system and the status incountries which do not have the plea bargaining system were discussed as follows:
A. Adoption of Plea Bargaining (if yes, contents; if no, whether there is another system or thesystem is being considered)
All the participants unanimously agreed that there were two types of plea bargaining as explainedby the adviser, Professor M io: one was between the prosecutor and the defendant whereby theprosecutor may mitigate the charges for the defendant if the defendant cooperates with the prosecutor(Type 1),and the other was between the Prosecutor and the accomplice whereby the accomplice must
admit guilt,provide information to the prosecutor and testify against the defendant in return for lesser
charges (Type 2).The participants from Azerbaijan,M aldives and Japan stated that they do not haveboth types of plea bargaining in their countries,but in Azerbaijan,a similar principle is provided in thecriminal procedure code whereby if the defendants help in investigation,his sentence could be lighter.
In M aldives, their Constitution and the Prosecutor Generalʼs Act provides the prosecutor with discretion to prosecute a case or not, and this discretion is mainly exercised in offences against children,
corruption and other serious offences. And in Japan, the adoption of both types of plea bargaining,
especially Type 2, is currently being considered in the legislative committee. The participants from
Brazil,Bhutan and M oldova stated that in their countries,both types of plea bargaining are available
and provided for by law.
B. Typical Cases in Which the System is Utilized
The participant from Brazil stated that in Brazil Type 1 plea bargaining is used in crimes withpenalties of 2 years or less,and Type 2 is used mainly in organized and serious crimes.The participantfrom M oldova stated that in M oldova,Type 2 plea bargaining is utilized for corruption and organizedcrime, and the participants from Bhutan stated that plea bargaining is used when the defendant or
accomplice provides material evidence to the prosecutor for another more heinous offence in exchange
for lighter charges.
C. Statements of Accomplices in Organized Crime ― How Obtained?
The participants from Bhutan, Brazil and M oldova stated that statements of accomplices inorganized crime are obtained by utilizing the concept of plea bargaining. The participant from
Azerbaijan stated that if the accomplice helps in such an investigation,it could be taken into account.
The participant from M aldives stated that there is no specific method to obtain an accompliceʼsstatement, and the participants from Japan stated that such statements are obtained by persuasion.
D. Current Problems/Challenges:
1. The participant from Brazil stated that there is a risk to the accomplice due to lack of witness
protection and difficulty in providing protection due to inefficiency of the system, and accomplices are reluctant to cooperate because it is better for him to try to get acquitted without
confessing than to make an agreement with the prosecutor.M oreover,Type 1 plea bargaining,
even in the medium cases, should be considered ― not only in minor cases.
2. The participants from Bhutan stated that the principle of plea bargaining is rarely used due tothe lack of awareness on the part of the defendants, and the participant from M oldova statedthat in order to enter a plea agreement,it should be mandatory that the suspect pay restitution
to the victim or society.

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3. The participants from Japan stated that in Japan they are facing a lot of problems without thesystem and in the near future,the method of persuasion may be challenged by the people due totheir awareness of the law. Therefore, they are currently working on adopting the system.
4. The participants from M aldives stated that in Maldives there is presently no uniformity and noset rules on the discretion of the prosecutors,and the accomplice has no duty to cooperate withprosecutor.
5. The participant from Azerbaijan stated that in Azerbaijan the concept of plea bargaining could
be adopted in the future, but the adoption of such a concept would be difficult to achieve.

V. RECORDED STATEMENTS OF INTERVIEWS/INTERROGATION IN
EACH COUNTRY
A. How Statements Are Recorded
All the participants stated that in their respective countries, statements are recorded in written
documents with the signature of the persons giving the statement. The participant from Azerbaijan
further stated that as per their Criminal Procedure Code, audio/video and other forms of recording
statements could be used.The participants from Bhutan stated that audio/video recording is also done,
although it is not mandatory.The participant from Brazil stated that in Brazil sometimes audio/video
recordings are also done by the police but only in few cases especially in confessions, and during the
judicial phase,all statements are audio or video recorded.The participants from M aldives stated thataudio recording is mandatory while video recording is optional,and there is a regulation stating that
if the suspect demands an audio copy of the statement,it should be given to him.The participant from
M oldova stated that in Moldova, audio recording is not used while video recording, though notmandatory,is used for serious criminal cases in practice.The participant from Japan stated that audio/
video recording is done for suspects who are detained for some serious offences by the police andprosecutor and for an accomplice who is being interviewed as a suspect.
B. Utilization of Statements at Trial as Proof
All the participants stated that the statements of suspects, victims, witnesses and accomplices, if
relevant,could be used as corroborative evidence in a court of law.The participant from Brazil statedthat all the statements are submitted to the court with the indictment and statements must be taken
again in court to be used as corroborative evidence at trial. The participants from Japan stated that
if the reliability and voluntariness of the statement is in question, audio/video recording devices(DVDs)are used as evidence in court to prove the fact. However, all the participants agreed that thestatements to be utilized in court as corroborative evidence should have been obtained in accordancewith the requirement of the laws of the respective countries.
1. Collection of Objective Evidence
The current situation and the challenges of each country relating to the collection of objective
evidence in investigation were discussed as follows:(a)Current Situation (Scientific investigation techniques and aids to investigation ― search, seizure
and analysis of crucial evidence)
The participant of Azerbaijan stated that in Azerbaijan, there are two bodies dealing in forensic
analysis, one with the M inistry of Justice which deals with all except medical, and one with the
M inistry of Health which deals with medical forensics. Currently forensic examination provides 22
types and 44 specializations in Azerbaijan.He also stated that the forensic research centre establishedin 1938 bought a lot of modern forensic equipment and expertise,and this centre not only did analysis
but also research.
The participants from Bhutan stated that in Bhutan, except for simple fingerprint and document
analysis, complex issues of forensic examination including DNA analysis, etc., are done in India andsome other foreign countries,and autopsies are conducted rarely due to religious beliefs.They further
stated that though the police stations are well equipped for lifting,labeling and packaging evidence andforensics-trained manpower, proper and well-equipped forensic laboratories are not available, and132

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there is a requirement of court order to obtain bank and financial records and phone records asprovided by the code of procedure.
The participant from Brazil stated that in Brazil DNA examination is done, though it is very
expensive, and they have developed a system for analyzing bank and financial records whereby astandard procedure for all banks to submit documents has been developed.He also stated that in Brazil
there is no automated system of analyzing security cameras and there is no DNA database,though it
is in the process of developing.
The participants from M aldives stated that in Maldives the Maldives Police Service has established
a forensics department,including crime scene investigation,fingerprint development and comparison,
digital-evidence analysis (mobile/computer), audio and video analysis, drug analysis, DNA analysis,
document analysis and polygraph examinations. They also stated that no autopsies are done due toreligious beliefs and the lack of legal framework. By law, it is obligatory for the banks to disclose
information if requested in writing by the police.
The participant from M oldova stated that in Moldova no DNA analysis or voice recognition
analysis is done. Such requests must be sent to other countries for analysis.Though there are experts,
there is no equipment. There is also an absence of facilities from internet providers to track cybercrimes, and old equipment is used for forensic scientific examination which is time consuming, andthere are three forensic laboratories in M oldova.
The participants from Japan stated that in each prefecture,there is a forensic laboratory,and DNA
and fingerprints are analyzed in these laboratories.For autopsies,in each prefecture,the body is sent
to the medical-forensics laboratory for examination. In Japan,security cameras are set up at various
places,and the videos from these cameras are collected by the police for analysis. Digital forensics isdone by the forensics laboratories of police bureaus and some private companies. For bank transactions, there is no need to get warrants as the banks would give information just by referral by thepolice,but to obtain call histories,warrants from the courts are required.In the Japanese Coast Guard,
there is a special division for analysis of oil, water and GPS.
(b)Challenges/problems faced
The participant from Azerbaijan stated that in Azerbaijan, there is no DNA database and noequipment for analyzing helicopter and airplane accidents.In Azerbaijan,there is a need of warrants
for searches, seizures and analysis of evidence.
The participants from Bhutan stated that in Bhutan, most police stations around the country lackthe latest scientific aids for investigation,and complex issues of forensic analysis are sent to India andother countries, which delays investigations. In Bhutan, there is a lack of proper and well-equipped
forensics laboratories and limited tools or scientific aids to investigation for the investigators. The
requirement by law to obtain court orders for the search, seizure and analysis of bank and financial
records, phone records, etc., delays and hampers investigations.
The participant from Brazil stated that in Brazil a DNA database and analysis of security cameras
should be developed.He further stated that wiretapping and detection of cyber-crimes is very difficult
as there is no digital-forensics expertise or equipment and the forensic analysis of computer evidence
takes very long. In Brazil, there is a lack of internet laws and regulation, and there is no national
database of fingerprints.There are also no rules in cyber cafes,so it becomes difficult to identify who
uses them;since there are no rules about mobile phone chips/sim cards, they could be misused bycriminals.
The participants from M aldives stated that in M aldives, there is a lack of specialist training
opportunities and limited budgets,and also admissibility of forensic evidence in courts is very difficult.
In Maldives, the banks and communication authorities are reluctant to provide information, and theservice providers are also very reluctant to provide information due to privacy issues, etc.;there areno laws mandating them to keep records.Security cameras are available but not maintained properly
due to limited budgets.

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The participant from Moldova stated that in M oldova modern forensic and scientific equipment
including DNA analysis equipment and a DNA database need to be established, and special programmes to help investigation of financial and internet crimes also need to be developed.
The participants from Japan stated that in Japan there is onlya limited number ofsamples for DNA
databases,and though DNA is collected from crime scenes,for comparison,there is only limited data.
In Japan, requirement of conditions for wiretapping is very strict.The domestic financial institutions
are very cooperative in providing information on bank accounts but many transactions take place inoverseas banks with hidden transactions so it is very difficult to get international assistance ininvestigation.In Japan,sometimes suspects are found not guilty because the investigators erroneously
analyze, overestimate and present the objective evidence at court, so the police and prosecutors must
develop analytical ability regarding such evidence. In the Japanese Coast Guard, there is a need todevelop experts for forensic analysis.
C. Necessary Measures to Improve/Develop Investigation in Each Country
The necessary measures to improve/develop investigation in each country were recommended asfollows:
1. All the participants agreed that it is necessary to develop a system for exchange of information
regarding investigation,prosecution and adjudication of criminal cases between countries to becoordinated by an organization like UNAFEI.
2. All the participants agreed that there should be advocacy on interrogation and interviewing
techniques,proper collection and handling of evidence and printing of guidelines to research theissues.Research institutes regarding interviewing/interrogation techniques should be establishedin each country for all investigation agencies. The countries should develop guidebooks withminimum requirements for interviewing/interrogation techniques, and publish a series meant
exclusively for investigators with specific cases for sharing of experiences with law enforcement
agencies.
3. All the participants agreed to establishing a well-equipped separate room in each police office
for interviewing/interrogation, and to establish a practice for assistance during interview/interrogation by psychologists or more experienced investigators.
4. The majority of the participants agreed to considering the development of witness/victim/
accomplice protection programmes and funding for such programmes to be managed by aspecific and specialized Governmental agency or department.There should be development of alegal framework relating to witnesses,victims and accomplices,and easier procedures to change
the names.
5. All the participants agreed that the plea bargaining system should be considered in countries,
where possible, due to its advantages.
6. The participants agreed on establishing the position of“
assistants for investigators”to assist ininvestigative techniques where such a system is not in place.
7. All the participants agreed on formulating legal provisions and procedures for dealing withinternet issues regarding handling of evidence and cooperation from the service providers.
8. All the participants agreed on considering the audio-and video-recording system relating to oral
statements during criminal investigation, whenever necessary, especially in serious crimes.
9. The majority of the participants agreed to consider providing more powers of investigation to
the prosecutors in certain cases,especially when the police may not investigate independently.
10.All participants agreed to consider cooperation with private companies to develop digitalforensic analysis, such as the Japanese model, through a legal framework.

134155TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
11.All the participants agreed on establishing an inclusive approach between the police and theprosecution to achieve better results for investigation and prosecution of cases, and the investigating officer and prosecutor should work as a team.
12.All the participants agreed on considering wider institutional opportunities in capacity building
for the stakeholders involved in the criminal justice system of countries for development of therespective institutions and staff. For instance, all new staff should have induction, formalmonitoring and be assigned a line supervisor. The line supervisor should discuss development
and performance issues with the member of staff in a formal way. Development should beperiodically reviewed, and also prosecutors should be trained for trial.
13.The participants agreed on considering the preparation of witnesses,victims and accomplices incases involving serious cases by the prosecution authorities prior to trial.
14.All the participants agreed that there should be enactment of relevant legislation to build astrong legal framework to investigate and prosecute cases to bring criminals to justice, especially the providing for the admissibility of confessions if obtained lawfully,in countries lacking
such provisions.
15.The participants agreed on establishing a quality and comprehensive evidence storage facility tostore, retain and utilize evidence effectively, in countries where it is lacking.
16.All the participants agreed on considering the development of techniques of interviewing/interrogation best suitable for the respective countries after considering models such as the PEACE
model and the REID model.
17.The participants agreed that in countries where coercive interrogation still exists, a system
where the burden of proof lies on the prosecutor with the use of video recording, medical andpsychological examinations should be established.
18.All the participants agreed on the significance of creation and development of a national DNA
and fingerprint database in their respective countries.
19.The participants agreed on reconsidering the obligations of the prosecutors to prosecute all thecrimes by establishing a discretionary model.
20.The participants agreed on considering the disclosure of evidence during the investigation phasein some countries.
21.All the participants agreed on considering the need to establish a standard procedure forfinancial institutions to provide information for investigation purposes, as developed in Brazil.
22.The participants agreed to regulate and develop the analysis of security cameras installed inpublic places.
23.All the participants agreed on the need for more training for investigators concerning interviewing/interrogation techniques.
24.All the participants agreed on the need to secure funds and equipment from the developed
nations and international organizations,and to provide various scientific aids to investigation to
the all the police stations of the respective countries.

VI. CONCLUSION
The group thoroughly deliberated and discussed the current issues and problems of each participating country relating to effective collection and utilization of evidence in criminal cases. Following
thorough discussions, the group developed certain recommendations and necessary measures to be

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implemented in their respective countries for the development and improvement of the criminal justicesystem focusing mainly on investigation. However, it should be noted that the measures and therecommendations in this report should be adopted and implemented in the respective countries basedon the necessity and suitability in their countries with the goal of ultimately achieving an effective andefficient criminal justice system.

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PART TWORESOURCE M ATERIAL SERIES
No. 92Work Product of the 16th UNAFEI UNCAC Training Programme“
Effective Measures to Prevent and combat Corruption and to Encourage
Cooperation between the Public and Private Sectors”

UNAFEIVISITING EXPERTSʼPAPERSINVESTIGATIVE MEASURES TO
EFFECTIVELY COMBAT CORRUPTION
Rebecca B. L. Li

I. INTRODUCTION
Corruption is not easy to detect,let alone investigate. From a place ravaged by corruption to one
now being recognized as one of the worldʼ
s leading cities to combat corruption,Hong Kong,China hascome a long way. And it has come a long way through the efforts of the Independent Commission
Against Corruption (ICAC)working in partnership with a determined public.Established in February
1974 as an independent anti-corruption agency, the ICAC adopted a holistic and coordinated strategy
in combating corruption on three fronts― enforcement,prevention and education. These distinct tasks
are entrusted to three departments of the Commission:Operations,Corruption Prevention and Community Relations. The Commissioner of ICAC is directly answerable to the Chief Executive of the Hong
Kong Special Administrative Region and is independent from the civil service, and this independenceof operation is very important to the effectiveness of our work. Our three-pronged strategy isenshrined in the ICAC Ordinance.
The Operations Department is the largest department in the Commission,comprising about 70% of
the ICACʼ
s workforce of over 1,300. It is tasked to investigate corrupt activities both in the public andprivate sectors by enforcing tough laws designed to ensure that corruption remains a high risk crime.
All reports received by the Report Centre are considered within 24 hours on a daily basis by the
Directorate officers of the Operations Department for investigation under utmost confidentiality.
Pursuant to the ICAC Ordinance, the Commissioner has the statutory duty to investigate corruption
complaints,including anonymous complaints so long as they contain sufficient details for investigation
to be pursued. While it is our statutory duty to investigate corruption, the power to prosecute rests
with the Department of Justice. This demarcation of responsibilities guarantees the impartiality in theperformance of prosecution function and this is particularly important given the special powers ofinvestigation possessed by the ICAC.
“Prevention is better than cure”. The Corruption Prevention Department is entrusted with theimportant task of examining the procedures and practices of government departments and publicbodies to plug corruption loopholes and reduce corruption opportunities. The department also provides
confidential and tailor-made corruption prevention advice free of charge, upon request, to companies
in the private sector with a view to strengthening corporate governance.
The Community Relations Department is responsible for fostering a culture of probity in thecommunity and enlisting public support in anti-corruption work. We have a network of seven regional
offices to maintain face-to-face contacts with people from all walks of life through corruption prevention talks at schools and workplaces, as well as district activities. M embers of the public can also
report corruption through the regional offices which will refer all such complaints to the Report Centre
to follow up. The department produces television drama series based on real corruption cases and alsouses television and radio commercials to spread anti-corruption messages.

II. THE NATURE OF CORRUPTION
In sharing the ICACʼ
s experience in investigating corruption and in addressing the problems
associated with its investigation,it is necessary to look at the nature of corruption as a crime first. It
Director of Investigation (Government Sector), Operations Department, Independent Commission Against Corruption,
Hong Kong.

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is essential to have an understanding of its nature in order to be able to properly appreciate thedifficulties involved in investigating it.
A. A Secret Crime
The feature of corruption that singles it out from other crimes is the secrecy surrounding it. Eachcorrupt transaction involves at least two parties:the offeror and the acceptor of a bribe who,throughthe transaction, create mutual obligations to each other and, from the transaction, derive mutual
benefits. There is an understanding between the two parties of what they expect from each other andit leads to a situation in which both parties get what they want. This secrecy,which is a consequenceof both parties getting what they want,is a major impediment to the effective detection and investigation of corruption. Third parties,including law enforcement agencies,are unaware of the deal between
the corrupter and the corruptee. As a crime,corruption can be described as invisible in nature. How
can you investigate something of which you have no knowledge?
B. A Crime that Leaves No Trace
Even when detected there are features of corruption that make it hard to investigate. Quite unlike
other crimes, there is no obvious crime scene where the perpetrators of corruption effect the commission of the offence. The corrupt transaction can be processed in the absence of the parties concerned,
and there may be no direct physical handing over of bribe monies. In these days of electronic banking,there is no need for the corrupt to even meet. Without physical contact with each other, they canlaunder the bribe through companies and off-shore bank accounts. Proving that there was a payment,
linking the parties to the payment and then proving the payment was a bribe is a painstaking andsometimes,ultimately unsuccessful process of investigation. Proving that what was offered was in facta bribe may be a problem if what was offered was not the payment of money but was instead a lessobvious form of advantage. Proving a corrupt purpose which is not apparent may also be a problem.
It might be no more than expedition or delay in taking action which can be easily camouflaged by thepretence of some form of lawful justification.
C. A Victimless Crime?
Another characteristic of corruption as a crime that makes it difficult to investigate is that very
often,there is no identifiable or immediate victim. With other crimes,you have a victim who has beenassaulted or robbed and who, because of his/her experience, is eager to cooperate in bringing thecriminal to justice and who has direct evidence of the commission of the crime. Not always but quite
frequently this victim is an innocent person who will present himself/herself to the court as a truthfulwitness.
Where is such a person in a corrupt transaction? Almost invariably there is none. Sometimes an
employee to whom a corrupt offer is made reacts righteously and immediately reports it. Likewise aperson who receives a corrupt solicitation may similarly respond. But more often than not the corrupt
overture goes unreported and leads to a completed corrupt transaction. Where then is the victim?In
this situation,the victim is the general public who is unaware that the crime has been committed andthat it has been victimized. For instance, when a person pays a bribe for expediting his/her export
licence application with the customs department,the victim is the public whose applications have been
delayed in the course of processing. When corruption becomes entrenched in the civil service andwidespread in society, the general public may be placed at risk as the quality of the public service
declines. Corruption as a social problem then becomes visible and operates as an unofficial tax leviedon the provision of public services. As public interests are subordinated to private aims, corruption
essentially confers benefits on the parties involved in it at the expense of the general public.

III. INVESTIGATING CORRUPTION:
ARM ING YOURSELF WITH THE WEAPONS
A. A Full Range of Offences
It is the very unique nature of corruption with its features of secrecy,invisibility and no identifiable
victim that renders it a difficult crime to detect and investigate. What then,can be done to overcome
the problems that are created by corruption having these features?

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The first thing that can be done is to ensure that appropriate laws are in place that can meet theneeds of the investigating law enforcement agency. A full range ofoffences to prohibit corrupt conduct
in both the public and private sectors is required. Under our Prevention of Bribery Ordinance(POBO),
section 4 regulates public sector corruption;sections 5,6 and 7 deal with corrupt activities relating to
public body contracts, tenders and auctions;whereas section 9 concerns corrupt transactions in theprivate sector.
Apart from general anti-corruption provisions, special statutory offences are required in order toenable the prosecution of government servants who are believed to be corrupt but against whom there
is insufficient evidence of bribery. Under section 10 of the POBO, it is an offence for a government
servant to maintain a standard of living beyond his/her means or be in possession of unexplained
property or pecuniary resources. It is important to have such a provision to regulate illicit enrichment,
otherwise corrupt government servants who know how to accumulate their wealth through corruption
in an undetectable manner can avoid any enforcement action.
Section 10 has been described as a draconian offence as the burden of proof of the absence ofcorruption is on the defendant and the onus on the defendant to provide an explanation to prove he isinnocent deviates from the Common Law principle that a person is presumed innocent until provenguilty and that the prosecution bears the burden of proving his/her guilt. However, in a Court ofAppeal decision, it was held that section 10 does not infringe the Bill of Rights because what triggers
the requirement for the defendant to give an explanation is the fact that the standard of living that he/she maintains is incommensurate with,or the pecuniary resources or property that he/she controls are
disproportionate to,his/her present or past official emoluments to an extent which is unreasonable inthe circumstances. The Court of Appeal recognized that a balance has to be struck between fighting
corruption and protecting the rights of innocent people, but accepted that corruption requires special
powers of investigation and special offence provisions.
In order to overcome the jurisdictional problem that would otherwise arise when a corrupt transaction takes place out of Hong Kong, our POBO contains a public servant bribery offence which
criminalizes the offering, solicitation or acceptance of a bribe wherever it occurs.
It is worth noting that corruption offences often go hand in hand with other offences, usually toenable the more effective commission of those other offences. This is why corruption offences are
regarded as offences which are used to facilitate other crimes. Because such other crimes are inextricably linked to the corruption offence,consideration should be given to empowering the anti-corruption
agency the authority to investigate those other crimes.
In many cultures, it is perfectly normal for persons to exchange gifts either as an expression ofgratitude or as a sign of respect. However, it is sometimes the case that corruption abuses existing
cultural practices and transforms them into a tool for paying bribes.It may be considered desirable toincorporate into the anti-corruption legislation a provision that prevents reliance on cultural practices
as a justification for bribery. In our POBO, we have section 19 which states “In any proceedings for
an offence under this Ordinance, it shall not be a defence to show that any such advantage as ismentioned in this Ordinance is customary in any profession, trade, vocation or calling.”
B. Special Powers of Investigation
Apart from seeking out live witnesses,evidence of corruption has to be gathered from all possible
sources. However,corrupt transactions nowadays are processed in a very sophisticated way. Bribes
are rarely handed over in cash or deposited into local bank accounts. They may be disguised asconsultancy fees,dividends of share investment or even remitted to overseas accounts. It has become
more difficult to identify and trace corrupt proceeds.
To facilitate the investigation of corruption, it is essential to have strong powers of investigation.
For instance, in our POBO, the ICAC is given a number of different special powers of investigation.
Under section 13 of the Ordinance, the ICAC Commissioner is empowered to issue authorizations torequire banks or financial institutions to provide specified banking records to investigators. Undersection 13A, an application may be made to a High Court Judge to obtain access to records of the141

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Inland Revenue Department. Under section 17, applications may be made to a magistrate or a High
Court Judge for the issue of search warrants to authorize ICAC officers to enter and search premises
for evidence of corruption. Under section 14(1)(a)and section 14(1)(b),an application may be made toa High Court Judge to authorize the ICAC Commissioner to issue a notice for it to be served on asuspect requiring him/her to reveal the property in his/her possession,his/her expenditure and liabilities and provide information on money or property sent out of Hong Kong. Under section 14(1)(c)andsection 14(1)(d),a non-suspect may be required to provide information on property or to appear before
an ICAC officer to furnish information or produce documents to facilitate the investigation. Undersection 14C, an application may be made to a High Court Judge to freeze accounts or restrain assets.
Further,under section 17A,an application may be made to a magistrate for the issue of a notice to beserved on a suspect requiring him/her to surrender all his/her travel documents and not to leave Hong
Kong for a period of six months and the period may be extended,upon further application,for anotherthree months.
C. Investigating Corruption:Going to Battle
The majority of law enforcement agencies are complaint reactive in nature. Their investigations
will usually be commenced upon the receipt of a complaint or the referral of information that a crime
has been committed. There then commences a fairly standard process of investigation including thegathering of evidence from the victims and other witnesses who were present at the crime scene or who
possess knowledge of the crime. This reactive strategy functions well for crimes that are detectable
and which have identifiable victims.
But,as explained earlier,that is not the position with corruption. Hence,the first hurdle encountered by agencies when investigating corruption is the source of the report or information. The secretnature of corruption means that the only persons who have direct knowledge of the crime are theperpetrators and their accomplices and in most cases, there are no immediate victims. Since mostcorrupt activities are unknown to outsiders,a large number of corruption cases may not be brought tothe attention of the investigating agency,resulting in the existence of a “dark figure”ofunreported andundetected corruption cases.
In order to be an effective enforcement agency against corruption,it is necessary to get the supportof the public and to encourage them to report it. This,in turn,very much depends on their awarenessof the harm caused by corruption and their confidence in the integrity and effectiveness of theenforcement agency.
Criminal investigations can be either reactive or proactive in nature. Each has its problems anddifficulties and these will be discussed below.
1. Reactive Investigations
For reactive investigations, information of corruption usually comes from complainants. The
lesson that the ICAC has learnt after over 39 years of investigating corruption is that developing publicconfidence in it is crucial to the success of its work. It is only when the public has confidence in,and
respect for,the anti-corruption agency that they will provide the agency with the support that it needs
The ICAC not only values but also needs community support. In 2012, 2,832 investigations wereconducted by the ICAC resulting from the 3,932 corruption complaints received during that year. 93%of the complaints received were made by members of the public of which 75% identified themselves.
Our investigations are still predominately complaint reactive. This reliance upon community support
is, of course, recognized in the preamble to the United Nations Convention Against Corruption(UNCAC)which urges States Parties to bear in mind that the prevention and eradication of corruption
requirethe support and involvement of individuals and groups outside the public sector, such ascivil society, non-governmental organizations and community-based organizations”.
In ICAC, we have a Report Centre that operates 24 hours round the clock as well as a hot-line thenumber of which is well known to the general public for them to report corruption. Some of thecomplainants who report corruption are persons who were involved in the crime and who bring it to
the attention of the investigative body. In such cases,the investigating agency has to guard against the
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investigation along the wrong path. Though it should be said that there are some instances where thecomplainants are not the main culprits and have been involved as reluctant parties in the corrupt
activities or have been forced unwillingly into facilitating or concealing them.
In those cases that are reported by complainants who were not involved in the corrupt activities,
their complaints are very often based on suspicion or hearsay information which may be difficult toverify at the covert stage. What they can provide is speculation or circumstantial information rather
than direct knowledge or evidence of the corrupt activities alleged.
Another source of our complaints comes from referrals by government departments,public bodies
or the Joint Financial Intelligence Unit. Reports of corruption are also made by the management ofprivate organizations or business firms. There is an established referral mechanism or liaison point
between the ICAC and these public or private organizations for them to refer any information or
intelligence of corruption so that the ICAC can follow up. It is necessary for an anti-corruption agency
to set up a system in this regard so that referrals are made pursuant to the established mechanism
rather than on the basis of personal acquaintance so that it will not be affected by any subsequentchange in personnel.
2. Proactive Investigations
The process of investigating corruption involves penetrating the many layers of secrecy, andthrough the use of imaginative investigative techniques, gradually removing the veils of secrecy thatsurround it. The first step in this process is coming into possession of information which alerts theanti-corruption agency to the existence of corrupt activity. The second step is transforming thisinformation into useful intelligence and the third step is investigating this intelligence in a way which
will generate evidence to allow the prosecution of the corrupt.
Proactivity simply means not waiting for the information on corruption to come to the law
enforcement agency as happens in a complaint reactive investigation,but seeking out this informationfrom a range of sources. Proactivity, or intelligence-led investigation as it is sometimes called, isbecoming increasingly important to law enforcement agencies as a tool to supplement and work in
conjunction with complaint reactive investigations.
How does the anti-corruption agency develop intelligence sources? It does so,firstly,as part of its
process of engagement with the community. This engagement can take manyforms but one ofthe mostimportant is that of developing contacts within the various elements of the public and private sectors.
This is quite separate from developing informants. Rather this is a form of liaison work. As people
get to know the anti-corruption agency and get to trust it,they will be more inclined to pass on pieces
of information to it. Such persons are not paid informants. They are public-spirited members of thecommunity,who,because of their work,become aware of matters which might otherwise not become
known to the anti-corruption agency. When they pass on a piece of information known to them,they
are not making a complaint as they may not know whether corrupt conduct is actually taking place.
But what they have encountered causes them to be sufficiently concerned at the possibility of someform of serious irregularity that they wish to refer it to the anti-corruption agency.
Another source of corruption information comes from informants who generally fall into two
categories. The first is people from the underworld who are of a dubious character, probably withcriminal records,and who maintain associations with people inhabiting this world. Bythis means,they
have access to information on the activities of the people with whom they associate. No law enforcement agency can operate effectively if it does not have sources within the criminal underworld.
Acquiring and developing these sources is not easy and great care must be taken in handling them. The
informant may be hoping for a reward or trying to exact revenge. He may even be deliberately trying
to mislead the law enforcement agency. Informants are not usuallyacting out ofa sense ofpublic spirit
and good will and they and honesty are more often than not strangers to each other. Nevertheless,iftreated with caution, informants can be a very valuable source of intelligence.
The second category of informant is a person working inside the organization in which corruption
is occurring,and who has knowledge or suspicion that corruption is taking place. This kind of person

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is also known as a “whistle blower”. When corruption information is provided by a “whistle blower”,
his/her anonymity must be preserved. Under section 30A of our POBO,it is an offence to disclose theidentity of a complainant or informer unless he/she testifies as a witness in the relevant criminal
proceedings.
The most productive type of informant is the one who can facilitate the infiltration of undercoveragents to collect direct evidence of corruption against the offenders. However,when embarking on anundercover operation, a proactive form of investigation, the safety of the agent should always be theprimary concern. In no circumstances should the operation continue if the agent is at risk. Taperecordings should be made,as far as practicable,of all meetings between the suspects and the agent topreserve evidence. There should be a proper system in place to log these audio or video tapes. Strict
adherence to a system is required as these tapes may be of evidential value and their authenticity may
become an issue at the time of trial. Furthermore,the undercover agent must make notes at the firstavailable opportunity after each meeting whilst his/her memory is still fresh. No matter how good his/her memory is, his/her testimony will be queried in the absence of any notes to support it if he/she
subsequently testifies at court. Every undercover operation entails an element of risk to the agent andtherefore it should not go on for too long a time. Investigators therefore work under time constraints.
Intelligence gathering,therefore,is all about obtaining pieces of information from different sourcesthat help you to piece together a clearer picture of a corruption problem. No law enforcement agency
can be effective unless it possesses the capacity to acquire criminal intelligence, to analyze it and todevelop it into investigations that are able to detect crime and produce evidence that will enable thesuccessful prosecution of those complicit in it.
In investigating corruption, problems are encountered by the law enforcement agency at both thecovert and the overt stages.
3. The Covert Stage of the Investigation ― Developing Intelligence
At the covert stage of an investigation,the law enforcement agency is developing its intelligence inorder to confirm that criminal activity has taken place or is about to take place, to identify those
involved in it and to learn what they have done or intend doing and when and where they did it orintend doing it. At this stage,telephone interception can be a very valuable intelligence gathering tool.
In Hong Kong,telephone interception and electronic surveillance are regulated by the Interception ofCommunications and Surveillance Ordinance (ICSO)which requires that any telephone interception or
certain type of covert surveillance be authorized by a High Court Judge. To ensure compliance by law
enforcement agencies when conducting telephone interception and covert surveillance operations,there
is a Commissioner on Interception of Communications and Surveillance who oversees all such operations.
It is our experience that telephone interception provides law enforcement agencies with the means
to acquire useful intelligence at the covert stage. It enables us to confirm that criminal activityis about
to take place or has taken place,it helps us to identify the suspects and it provides us with informationon their plans and how they are going to carry them out.
In order to properly develop this intelligence, the law enforcement agency must have the capacity
to conduct physical surveillance. Physical surveillance enables the law enforcement agency to identify
the relatives and associates of the suspects and the places they live, work and frequent.
Also during the covert stage,evidence can be obtained from public records,such as companies andbusiness records, land registry records, etc. Evidence can also be obtained from confidential records
possessed by organizations such as banks, financial institutions and government revenue department.
By all of these means,a picture is gradually revealed of who is doing what,where and when. It is
crucial that at the covert stage the investigators are able to pull aside as much of the veil of secrecy
as they can. The overt stage of the investigation takes place when suspects are arrested and interviewed, when search warrants are executed and civilian witnesses approached and statements takenfrom them. The effectiveness of any interview with a suspect will largely depend upon the investiga-144

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tors being able to convince the suspect that they already know what he has been doing. If theinvestigator is questioning from a position of ignorance,he is likely to lose his advantage of dominanceover the suspect.
But, returning to the covert stage of the investigation, how else might the investigation be developed, especially how might it be developed to generate admissible evidence? One such way is byelectronic surveillance. In Hong Kong,covert surveillance involving the use of surveillance devices isregulated by the ICSO and the product of covert surveillance is admissible in court. Electronic
surveillance can take many forms. The obvious and most common forms are audio and visualsurveillance by means of surveillance devices to obtain evidence of meetings amongst the suspects andof what is said during the meetings.
Another such way is by undercover operations. Undercover operations can be a particularly
effective means of penetrating the criminal enterprise and obtaining evidence against all who are partof it. But undercover operations can be resource intensive. They require the use of physical andelectronic surveillance and telephone interception. Those working undercover may have to assume
different identities and their private lives will be disrupted. Their lives may be placed at risk. There
are many problems and risks associated with undercover operations but the end result can be enormously successful in terms of the evidence they generate.
Another subject that is worth mentioning is ambush operations. An ambush operation takes placewhen the anti-corruption agency is aware that a corrupt payment will take place at a particularlocation on a particular day and arranges its officers to lie in wait and arrest the suspects as,or shortly
after, the corrupt transaction is concluded.
By all the aforesaid means the anti-corruption agency is able to make use of the covert stage of theinvestigation to gradually remove as much as possible the veil of secrecy surrounding the corrupt
activity. It may start with only minimal information but it graduallydevelops it into useful intelligenceand the intelligence into admissible evidence.
4. The Overt Stage of the Investigation
The problems encountered by investigators are not confined to the stage of covert investigation,
however. At the time of overt action, the most important task is to secure the evidence before it isdestroyed. Good planning for overt action is the key to the success of every corruption investigation.
This is because the secretive nature of the crime renders it difficult to collect evidence at the covert
stage and if the evidence is not secured at the first available opportunity when overt action is taken,
it can easily be destroyed.
Unlike other crimes where evidence may be available at the crime scene, evidence of a corrupt
transaction need not be present at the scene, even in an “ambush”situation when the suspects arearrested. If money does change hands, it is of utmost importance to recover the bribe money at thescene. Thorough planning for the overt action or “ambush”should include a contingency plan in caseof any sudden last minute change in the arrangement by the suspects.
Since corruption entails secrecy and a “satisfied customer”situation, sometimes it is necessary to
get the cooperation of accomplices in order to get evidence against the main culprits. Consideration
may have to be given to gaining the cooperation of accomplices who played a lesser role in order to
implicate the main culprits. This, however, is a matter on which legal advice should be sought andfollowed.
5. Evidence Collation and Analysis
Financial analysis of the involved persons will very often be conducted at both the covert and theovert stages of investigation. This includes retrieval of financial transactions records from banks andfinancial institutions, property transactions records and other investment details. Analysis of suchdata helps identify payments of bribes and laundering of corrupt proceeds. This is done not only forthe purpose of evidence collection but also with a view to restraining and confiscation of the ill-gotten
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With the increased use of off-shore bank accounts as vehicles to eventual disposal of bribe monies,
laundering of crime proceeds has now taken a more convoluted route and become more difficult to beunveiled and detected by law enforcement agencies. This necessitates the deployment of experts withthe required professional knowledge and skills to do fund tracing and asset identification to prove thechain of bribe payments and to identify, freeze and confiscate the crime proceeds. To this end, theICAC has its own in-house Forensic Accounting Group, staffed by qualified accountants, to conduct
fund tracing and financial analysis and to give expert evidence in criminal proceedings. There is also
a separate Proceeds of Crime Section specifically tasked to deal with the identification, freezing andconfiscation of corrupt and related crime proceeds. It cannot be emphasized enough that apart from
imprisonment, an effective deterrent that can be imposed on the corrupt is to deprive them of their
ill-gotten gains.
Another important aspect of evidence collation which requires professional skills is computer
forensics. Advances in technology have both posed difficulties to, as well as provided additional
avenues for,evidence collation. On one hand,the ever-increasing use of smart-phones and the internet
has provided the criminals a convenient platform to communicate with one another in furtherance of
their crime. On the other hand,this provides additional avenues for law enforcement agents to gather
evidence. To this end,officers of our Computer Forensics Section apply their knowledge and expertiseto retrieve evidence of corruption and give expert evidence in criminal proceedings.
6. After Overt Action
The problems do not cease after a case is turned overt. When the evidence comes from an informant
with a criminal background, it is almost certain that his/her credibility and bad character will be
attacked by the defence. It is, therefore, unsafe to proceed with a prosecution based merely on theuncorroborated evidence of a tainted informant. The same problems apply to cases where an accomplice testifies for the prosecution. Because of his/her status, he/she will be regarded as a tainted
witness when he/she testifies under immunity. Therefore, it is important to get corroborating or
supporting evidence and not to solely rely on the evidence of immunized witnesses to prove a case ofcorruption.
Safety of witnesses is another problem that may be encountered by investigators. If the law
enforcement agencyʼ
s assessment is that the safety of a witness or his/her family members is at risk,
it will be necessary to arrange protection for them. Pursuant to the Witness Protection Ordinance,theWitness Protection Section in the ICAC is tasked to implement the Witness Protection Programme toensure the personal safety and well being of ICAC witnesses who may be at risk as a result of theirassistance in ICAC investigation and subsequent prosecution. This implements what is required under
Article 32 of the UNCAC.

IV. CORRUPTION ― A TRANSNATIONAL CRIM E
The increasing mobility in international travel and the rapid means by which money can now betransferred have assisted criminals to evade justice by fleeing their jurisdictions and hiding or laundering their corrupt proceeds. The rapid development of international financial and banking systems has
enabled the speedy transfer of money from any one place in the world to another. As corruption has
become increasingly transnational, so the fight against corruption has become more proactive requiring more and more investigations to be undertaken jointly or with the cooperation with our counterparts in other jurisdictions. To this end, the UNCAC provides a timely set of benchmarks for thecriminalization of corruption and the development of a global consensus for the implementation ofanti-corruption measures and strategies.
To be able to effectively investigate any form of transnational crime, including corruption, close
liaison and mutual cooperation with law enforcement counterparts on the regional and international
fronts are important. To achieve this, there needs to be partnerships between jurisdictions that will
provide prompt, efficient and responsive cooperation of both a formal and informal nature that caterto the requirements of both the requesting and requested jurisdictions.
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significant scope for expansion of this process at both the covert and overt stages of an investigation.
At the covert stage of investigation,informal mutual assistance involves the sharing ofintelligence andthe conducting of joint investigations including undercover operations. But this can only happen if theparty seeking assistance can trust the party providing the assistance not to breach the secrecy of theinvestigation. Over the years, the ICAC has worked hard to build up such trust and to develop close
relationships with overseas law enforcement agencies and the cooperation this has produced has beenof great assistance in the investigation of cross border crimes.
At the overt stage of investigation,the collection of evidence will be with a view to prosecution andso must be obtained without delay. The delay in obtaining evidence can pose great problems to law
enforcement officers, such as ensuring witnesses remain cooperative or running a prolonged witness
protection programme. As witnesses have to testify based on their memories,the longer the delay,thepoorer their memories are likely to become. Long delay can also lead to an application by the defence
for a stay of proceedings based upon a claim that the delay has prejudiced the defendantʼ
s right to afair trial. If such a claim by the defence is successful,the confidence of the public in the effectivenessof the criminal justice system is placed at risk.
The importance of expeditious mutual cooperation from foreign jurisdictions can be illustrated bya case example. This case involved an arrest operation conducted by the ICAC. Under Hong Konglaw, an arrested person can be detained up to a maximum of 48 hours. Very soon after the suspects
were arrested in Hong Kong, we were able to obtain assistance from a law enforcement agency inanother part of the world to locate a very important witness whose evidence was crucial to the case.
Within hours ICAC officers flew to that jurisdiction to interview the witness and secured importanceevidence before the arrested persons were released on bail in Hong Kong.
Apart from informal cooperation,there must also be put in place a legislative underpinning to theobtaining of evidence, in an admissible form, outside the jurisdiction for use within the jurisdiction.
This is referred to as mutual legal assistance (M LA). The breadth of MLA, ranging from collectionof evidence to search of premises and to asset recovery,can be seen in the articles of UNCAC. M LA
is a very important part of the UNCAC and State Parties are encouraged to develop both official andunofficial channels for working more closely together and helping one another.

V. CASE STUDIES OF CORRUPTION INVESTIGATION
The above gives a general idea of the problems that are often encountered by anti-corruption
agencies in investigating corruption. In order to better illustrate some of these problems, two cases
investigated by the ICAC detailed below reveal what problems were associated with them and the way
we went about tackling them.
A. “Operation Bridge”:A Proactive Success Story“Operations Bridge”illustrates the effectiveness of deploying special investigative techniques in anundercover operation. It concerned an investigation into the corrupt activities of three government
officials, one from the Customs and Excise Department and two from the Immigration Department.
Because of their law enforcement backgrounds,they were extremely alert and this posed difficulties tous when we deployed covert investigative methods. The breakthrough came when we deployed anundercover agent, from an overseas law enforcement agency which rendered great assistance to the
ICAC in this particular investigation. Since the undercover agent was non-Chinese,the corrupt officials
did not have any suspicions of him and they let down their guard and were at ease when they engaged
in conversations with the undercover agent in order to further their corrupt activities. All their
discussions and meetings were audio/video tape-recorded and transcribed,and subsequently produced
at court. The three government officials and others who were involved were all convicted and received
heavy penalties.
This undercover operation produced very good results which would not have otherwise beenpossible had there not been the infiltration by the undercover agent. Thus in investigating secretive
crime of this nature, an imaginative use of special investigative techniques is necessary in order toachieve what might otherwise not be achievable. Of course, in this unique undercover operation, it

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would not have been possible without the support of our overseas counterpart who agreed to deploythe
undercover agent to assist us.
The importance of proactivity and international cooperation is recognized by the UNCAC which
specifically encourages joint investigations and international cooperation in fighting corruption. The
value of international cooperation cannot be emphasized enough especially in an era when crimes,
including corruption, is increasingly becoming more transnational in nature.
It is worth mentioning that at the covert stage of investigation of“
Operation Bridge”,an associateof the informant who was the Immigration Chief of an overseas jurisdiction visited Hong Kong. The
Immigration Chief solicited huge sums of money from the informant in return for the sale of diplomatic
passports of his country. In response,the ICAC deployed one of its own officers as an undercover agent
and posed as the head of a drug trafficking syndicate who wanted to obtain diplomatic passports tofacilitate his transnational drug trafficking activities. The Immigration Chiefwas caught “red handed”
in a hotel room when he accepted monies from the ICAC undercover agent, after he had stamped theofficial seal and issued diplomatic passports “under camera”. He was prosecuted, convicted andsentenced to heavy penalty. The success of this undercover operation illustrates how important it is
to “
expect the unexpected”and how being prepared to react swiftly to an unexpected development
enables the law enforcement agency to convert what might be regarded as a problem into an opportunity. In an undercover operation, it is not just necessary to be able to respond to changing circumstances,it is also necessary to be able to respond to such circumstances positively and to turn them toyour advantage.
In its preamble the UNCAC recites that States Parties are:“Convinced also that a comprehensive
and multidisciplinary approach is required to prevent and combat corruption effectively.” Thisconviction has led to the inclusion of Article 50(1)which requires States Parties to take such measures
as may be permitted by its laws and as may be necessary to allow for the use of controlled deliveries
and special investigative techniques in order to combat corruption effectively. In Hong Kong,we havefound that the use of these techniques,in the way described above,is crucial to ensuring our investigations are effective. Removing the many veils of secrecy surrounding corruption is never easy and law
enforcement needs more than just hard work and persistence to do so. Being committed to the task isnecessary but,on its own,is not enough. It must be supported by imaginative use ofeveryinvestigativetechnique available.
B. Uncovering Bribery and Greed through Covert SurveillanceThis case illustrates the effectiveness of using covert surveillance as an investigative tool to collectevidence. It concerned an Executive Director (ED) of a publicly listed company (Company A) who,
through the arrangement of two middlemen, both investment advisers, offered bribes to a Fund
M anager of an international financial institution for arranging the Funds managed by his financial
institution to buy in a large tranche of Company Aʼs shares. The ED also offered bribes to a Senior
Analyst of an international investment bank in return for the latter causing a favourable research
report to be written on Company A so as to promote its shares.
On the day of overt action,when the ED made a corrupt payment to the two middlemen,they werearrested red-handed. Subsequently the Fund M anager and the Senior Analyst were also arrested.
When interviewed under caution by ICAC officers,they all admitted offering and/or accepting bribes.
The management of both the financial institution and the investment bank confirmed that none of
their employees were allowed to accept any advantages.
In the course of covert investigation of this case, valuable evidence was gathered through covert
surveillance by the audio and video tape-recording of two meetings held by the suspects.
The first meeting took place in a private room of a hotel restaurant. Present were the ED,the Fund
M anager and the two middlemen. The second meeting took place in another restaurant in a commercial office building. Present were the ED and the two middlemen. During the two meetings, they
discussed matters pertaining to their corrupt dealings. Both meetings were audio and video tape-148

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recorded by ICAC officers.
Though being severely challenged by the defence at the time of trial,the judge ruled the video andaudio tapes admissible. Indeed,vital evidence was secured from the above two meetings through covert
surveillance. Nothing could be more convincing of the guilt of the defendants than playing in court theactual conversations of them discussing their corrupt dealings. In view of the secretive nature ofcorruption, this type of evidence is not normally available. It was only through the effective deployment of covert means of recording that this highly incriminating evidence of the actions and words ofthe offenders could be obtained. A significant feature of this case is that it highlighted the need for a
statutory backing to covert surveillance, an important area of law enforcement work. As a consequence of this case and other legal challenges, our Government conducted a review of the legal basis
for telephone interception and covert surveillance and this led to the enactment of the ICSO.
After trial,apart from one of the middlemen who had testified under immunity for the prosecution,
the ED, the Fund Manager, the Senior Analyst and the other middleman were convicted of bribery
offences and were sentenced to imprisonment.1

VI. CONCLUSION
As in any criminal investigation,success comes through commitment,hard work and persistence by
persons who have been trained in how to investigate corruption. Despite all I have said,and the lessons
that I have tried to impart, there is still no guarantee of success. Inevitably, there will be occasions
when you know corruption has taken place,but you cannot prove it. You,however,must never allow
failure to lessen your belief in the importance of what you are doing. The community is depending
upon you to keep up your work even though there are times when you may be disheartened by yourinability to prosecute the corrupt. So keep believing and remain committed,for the struggle is worth
it in the end.

1On appeal, the conviction of the Senior Analyst was quashed as the Court of Appeal found the conviction, based onhearsay evidence, against him unreliable.

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MEASURES TO PREVENT CORRUPTION AND TO ENCOURAGE
COOPERATION BETWEEN ALL SECTORS OF SOCIETY
Rebecca B. L. Li

I. INTRODUCTION
Since its inception, the Independent Commission Against Corruption (ICAC)in Hong Kong, China
has recognized that apart from enforcement, it is equally important to work with the community inorder to develop an intolerance of corruption. It therefore has adopted a three-pronged strategy incombating corruption ― enforcement, prevention and education.
Our first Commissioner,Sir Jack Cater,reported in the ICAC Annual Report for the inaugural year
1974 that “Combatting corruption is not just a matter of investigation and prosecution. There is muchhistory behind corruption in Hong Kong and deeply ingrained attitudes are involved. From its very
inception therefore the decision was made that the Commission should launch a three-pronged attack:that it should have, in addition to an investigating arm (the Operations Department), two otherdepartments to be known as the Corruption Prevention and the Community Relations departments.
The aim of the former being the elimination,as far as practicable,of the opportunities for corruption;and the aims of the latter,the education of the public against the evils of corruption and the fosteringof public support generally in fighting corruption.” The three-pronged anti-corruption strategy was,therefore, adopted by the ICAC in order to tackle corruption in Hong Kong on all fronts.

II. CORRUPTION PREVENTION
In providing corruption prevention advice to government departments or public bodies (and uponrequest,to private sector entities),our Corruption Prevention Department (CPD)will,after all relevant
information has been collected,identify potential weaknesses in the system which create opportunities
for corruption and make corresponding recommendations for their reduction if not elimination. Oncethe recommendations have been accepted by the relevant government department or public body,theirimplementation will be closely monitored by CPD until conclusion of the corruption prevention
assignment.
A. Characteristics of Corruption Opportunities
In providing recommendations of prevention measures, it is necessary to identify features giving
rise to opportunities for corruption in the relevant practices and procedures. Some of the recurrent
features are detailed below.
1. Outdated or Inadequate Policy
Fundamental to each corruption prevention study is the policy behind the practice or procedure
under review by CPD. In a number of studies,it has been found that the basic fault is an obsolete policyor the total lack ofpolicyso that procedures mayexist,either whollyor partly,to give effect to a policythat is no longer relevant or necessary. In effect this could mean that no one in the department has any
knowledge of what is required, leaving scope for staff at all levels to create their own aims andobjectives, perhaps with corrupt ends.
2. Un-enforced or Unenforceable Legislation
Legislation can provide opportunities for corruption,particularly if it is unenforced or unenforceable. The continued existence of outdated, inadequate legislation may be due to the failure of departDirector of Investigation (Government Sector), Operations Department, Independent Commission Against Corruption,
Hong Kong.

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ments to review their own legislation or a lack of communication between the enforcement agency andthe law-making authority. Corruption opportunities exist for law enforcement officers if they havelaws at their disposal which cannot be enforced consistently, are unenforceable, or are known by the
public that they can be varied in their application by relatively junior officers. Toleration of illegal
practices,then,especially when condoned by senior members of the department,renders all staff who
are in contact with the public particularly vulnerable to corruption.
3. Lack of Supervision and Accountability
Problems may arise from a lack of supervision of junior staff,particularly those who operate awayfrom the office. Often supervisory staff are preoccupied with their own duties, frequently of an
administrative nature,which may keep them at their desks most of the time. Attempts to supervise areoften made merely by correspondence on file,which is but an incomplete form of supervision. Not onlyis there often inadequate supervision,in some instances government officers,especially those charged
with monitoring and inspectorate duties,may perform their duties perfunctorily with limited sense ofaccountability.
4. Insufficient Publicity
The lack of publicity on government practices and procedures may create opportunities for
manipulation by dishonest officers. Not only should the public be made aware of governmentʼ
s aimsand procedures, they should also be educated to realize, and therefore, to exercise, their rights asmembers of the community.
5. Delay
Delay, whatever the cause,provides obvious scope for corruption,as long as there are people whoare prepared to pay and/or there are public servants who demand or accept bribes for expediting acase. Delay provides both the opportunity to extort a bribe and the incentive to offer one. It is also
an inevitable consequence of the complex bureaucratic processes of a society.
B. Organizational Integrity
To better appreciate how organizations,in particular public organizations,fall prey to corruption
and malpractices,it would be useful to make reference to an Organizational Integrity Grid,with the X
axis denoting “Staff Integrity”and the Y axis “System Integrity”. An organizationʼ
s system integrity
and staff integrity are rated and it is then placed in the grid for analysis.

1. System Integrity
Factors which affect the rating of an organizationʼ
s system integrity include the organizationʼspolicy commitment on integrity;a corporate culture of ethical behaviour;zero tolerance on corruption

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and other malpractices;promulgation of and adherence to a staff code governing probity issues; adeclaration system for managing conflicts of interest;an accountable hierarchal structure with welldefined duties and responsibilities;laid down procedures and clear instructions;publicized performancepledges;an effective checking and reviewing mechanism;a complaints handling system for external
and internal complaints (whistle-blower policy); a stringent staff recruitment, development, performance management and monitoring policy;and compliance with laid down policies and procedures,etc.
An organization which possesses the above factors will score high along the Y axis and depending
on its score against “Staff Integrity”will be placed either in Sectors I or IV of the Organizational
Integrity Grid. On the other hand,an organization lacking in the above factors will score relativelylow
and may end up in either Sectors II or III, again depending on its rating under “Staff Integrity”.
2. Staff Integrity
While rating an organizationʼ
s system integrity can be based on various objective factors, themeasurement of staff integrity of an organization is much harder as subjectivity is involved. The
common values which affect staff integrity include morality,honesty,impartiality,fairness,righteousness, conscientiousness, anti-nepotism, attitude against bias and prejudice, and sense of remorse, etc.
These are essentially personal attributes and are difficult to be measured objectively. Other than using
psychometric tools to gauge the level of integrity of individual staff members thereby reaching an
overall rating for an organization,the level of staff integrity of an organization could also be inferredfrom incidences of failure in staff integrity related issues,including actual and alleged corruption andfraudulent cases. An organization with a relatively high rating under “Staff Integrity”will be placed
either in Sectors I or II,depending on its score on “
System Integrity”. Conversely,an organization witha relatively low rating under “Staff Integrity”will end up in either Sectors III or IV.
3. Rigorous Enforcement
While an organization in Sector I of the Organizational Integrity Grid denotes both its system
integrity and staff integrity are positive and hence less likely to be victimized by corruption or othermalpractices,an organization in Sector III will be much more prone to problems as any unscrupulous
staff member could easily take advantage of the various loopholes in the organizationʼ
s system forpersonal gains probably to the detriment of the organization. Not many organizations will thrive forlong should their parasitic staff members behave corruptly.
To tackle cases in Sector III,the immediate and obvious solution would be rigorous enforcement by
the relevant law enforcement authority;provided that the organization concerned is able to detect andwilling to bring forth such cases to light, the latter is unlikely to be an issue for government departments or public bodies as they are publicly accountable but would be more prevalent in privateorganizations which might have commercial or other short term considerations for reporting suchcases. Nonetheless,should an organization be able to detect irregularities and be willing to report themto the authorities,then effectively its rating on organization integrity should rise which would benefit
it in the longer term,along with the adoption of other integrityenhancement measures discussed below.
4. Integrity Enhancement and M aintenance
Arguably for organizations placed in either Sectors II or IV, they should be comparatively safer
than those organizations in Sector III because either their systems are sound (Sector IV)or theyare run
by staff who would not take advantage of any system loopholes (Sector II). Problems associated withintegrity apparently will not fall on them;but is this true? It is appreciated that complacency breeds
contempt but misplaced complacency breeds more than contempt as it often is the root cause of future
problems,and more so for complacent organizations which unfortunately may find themselves caught
off guard. The eventual price to be paid could be huge as the organizationʼ
s goodwill will be at stake.
It must be pointed out that the ratings for both system integrity and staff integrity of an organization are both relative in nature and are not absolute. The integrity factors of an organization do not
remain static and will change in response to the operating environment and the prevailing norms(market norms for private organizations). Hence it would be in the interest of an organization in either
Sectors II or IV to be watchful about its low ratings and take positive measures to enhance those
integrity factors it lacks with a view to eventually moving to Sector I. Depending on the nature of the15216TH UNAFEI UNCAC TRAINING PROGRAM ME
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integrity factors,our CPD is able to offer corruption prevention measures to organizations to directly
address the deficiencies identified for system integrity related issues;while our Community Relations
Department (CRD) will assist with staff integrity related issues. As integrity issues are dynamic innature,organizations must recognize that even though theyare in Sector I,theyhave to continuallyand
proactively monitor and maintain their hard-earned stature lest they be relegated to other sectors
without realizing it until it is too late.
For an organization in Sector III,it should be obviously necessary for it to adopt decisive measures
to enhance all integrity factors;tantamount to a complete revitalization or rebirth of the organization.
It is therefore important for these organizations to be aware of the services of our CPD and CRD which
can help these“
victims of corruption”to benefit from integrity enhancement measures to enhance theirsystem and staff integrity. The above discussion on organizational integrity reflects the three-pronged
strategy to attacking corruption holistically.
C. The Fundamental Conditions for Corruption in the Public Sector
The presence of corruption opportunities (COs)by itself does not indicate that such opportunities
are being exploited. The following schematic diagram would help explain the fundamental conditions
under which COs could be exploited. In order for COs to be exploited, there must exist two otherenabling conditions:public authority and corrupt intention. Thus, to prevent corruption from occurring, preventive measures must be introduced to manage these fundamental conditions.

1. Enhancing System and Staff Integrity
Elimination of, or reduction in, COs can be achieved by way of improving system integrity. In
respect of corrupt intention, the stepping up of staff integrity is the most effective way to curb suchintention by way of promulgating positive values amongst the staff concerned. That said,corruption
thrived in Hong Kong in the 60s and 70s because more often than not petty corruption was acceptedby many as a means to supplement official emoluments which were then not high. Hence in addition
to imparting positive values,it is also necessary to review pay packages and associated benefits to help
make sure that the overall pay package will allow an honest public official to maintain reasonableliving for himself/herself and his/her family without the need for him/her to resorting to corruption to
supplement his/her income except for satisfying his/her greed.
2. Public Authority and Accountability
In order to be corrupt, a public official must have the public authority to enable him/her to either
abuse the entrusted authority or to gain from its proper exercise. Hence measures have to be
introduced to guard against abuse of such authority and to step up the accountability of the system
when public authority is being exercised. Coupled with the introduction of the system integrity
measures to reduce or eliminate COs and the enhancement of staff integrity measures,they should goa long way to curbing abuse of authority.
D. The Corruption Prevention Principles
Based on a multitude of corruption prevention assignment reports completed by our CPD over theyears,COs in public systems could be effectively reduced if the systems satisfy the broad principles in

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that they should be Fair, Accountable, Simple and Transparent, giving rise to the acronym FAST,
which provides for a simple set of working tools for examining public systems so that potential
problematic areas identified could be suitably addressed to safeguard the system against corruption
and malpractices. Thus, if a public system could be made fair, accountable, simple and transparent,
then the system should become more corruption resistant.
1. A Fair System
In public administration, particularly in resource allocation, the fundamental principle to beobserved is fairness,which means that every eligible applicant who is entitled to the public service has
a fair and equal chance of receiving it.
2. An Accountable System
All officers involved in a system have a role to play and each is expected to perform to the best of
his/her abilities with the resources given, in accordance with laid down instructions and within any
stipulated time frame. Cases should be subject to random supervisory checks and managerial supervisors aware of any prevailing issues affecting the performance of the system.
3. A Simple System
Any system which is highly complicated with elaborate procedures, involving a large number ofauthorities or departments, is bound to attract middlemen and the likelihood of anxious applicants
resorting to corrupt means to expedite the process. Hence any system should be made simple as far
as applicants are concerned.
4. A Transparent System
With rising public expectations on accountability in public administration, members of the public
are entitled to know and question public policies,decisions and actions. From the corruption prevention angle, transparency is essential to allowing public monitoring on government systems and theassociated decisions and actions.
E. Procurement M anagement ― A Case Example of Limiting the Opportunities for Corruption
Corruption prevention, as mentioned above, seeks to identify weaknesses in an organization, its
structure,processes and staff in order to discover where it might be vulnerable to corruption and where
opportunities might exist for corruption to occur within that organization. Now I want to discuss acore part of an organizationʼ
s processes,the procurement process,to illustrate how corruption prevention can help to minimize,if not eliminate,opportunities for the corrupt exploitation of this important
administrative process.
Procurement is undoubtedly an activity of concern to both public and private organizations as it has
the potential for serious loss to an organization,public or private,through corruption and malpractices.
A prudent and accountable procurement system should ensure that goods and services are purchasedin a competitive and equitable manner as well as through a process which provides value for money.
The process should be transparent and accountable.
The basic control principles for procurement entail a fair, open and effective procurement systemwith appropriate checks and balances. The procurement authorization levels and their corresponding
financial limits should be clearly set out with full knowledge by the staff concerned. Requisitions
should be approved and quotations or tenders should be adopted in accordance with laid down financial
limits.
Segregation of duties is of utmost importance to avoid a single staff member from being able toinitiate an order, place and receive the order as well as effecting payment to the supplier concerned.
Such functions should be segregated and subject to checks. Any potential conflicts of interest should
be properly managed to protect the organization as well as the staff involved in the procurement
process from possible perceptions of impropriety. The whole procurement process should be fully
documented to provide an audit trail and allow for subsequent compliance checking.
Thus, from the emergence of the novel idea of corruption prevention to the consolidation of the15416TH UNAFEI UNCAC TRAINING PROGRAM ME
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s holistic anti-corruption strategy.

III. COOPERATING WITH THE PUBLIC AND PRIVATE SECTORSOne of the statutory duties of the ICAC is to educate the public on the evils of corruption and toenlist their support in the fight against it. To this end, we aim at changing the mindset and attitudeof people through education and integrity promotion. We put emphasis on people. We see people not
only as targets for conveying anti-corruption messages;we see them also as our change agents andmultipliers. No matter which sector they belong to, we hope to rally their support for the anticorruption cause and to encourage them to join forces with us. One strategy adopted by our CRD toachieve this objective is to identify and work with influential partners. By so doing,we hope to reachout to more partners and more multipliers and gradually forming a tremendous force in building aclean culture in society.
A. Partnership to Combat Corruption ― The Ethical Leadership Programme
In the government sector, our goal is to help create a culture of integrity in the civil service. We
firmly believe that an ethical culture is the best defence against corruption. In reaching this goal,wehave partnered with the Civil Service Bureau (CSB). The CSB is a policy bureau assuming the overall
policy responsibility for the management of Hong Kong civil servants. It maintains close contacts withother government bureaux and departments to ensure that the Administration is staffed by an effective
and clean civil service. With our common goal in mind,the ICAC and the CSB have,for the last decade,jointly embarked on a series of programmes to encourage government departments and bureaux totake steps to promote integrity culture in their organizations. The Ethical Leadership Programme(ELP)is the most significant effort made by our CRD in recent years.
The ELP was launched in December 2006. It has two significant features. The first one is theappointment of an ethics officer in all government organizations and the second one is the establishment of a standing mechanism for regular communication among ethics officers and with the ICAC andthe CSB.
1. Appointment of Ethics Officers
Under the ELP,each organization head is requested to appoint a senior directorate officer to be theethics officer assisting him/her in developing and sustaining ethical culture in the organization on along-term basis. Ethics officers assume the overall responsibilities of all tasks related to integrity
management. Such tasks cover areas like cultivation of values; setting and maintaining a highstandard of probity amongst staff;conducting reviews of procedures and systems;arranging educationand training for staff;and providing guidance and ensuring enforcement of the requirements and thestandards set. These tasks may not be new to government organizations but with the appointment of
ethics officers, they can be performed, monitored and reviewed on a regular basis in the context of awell coordinated integrity programme plan.
2. M echanism for Communication
To facilitate the exchange of views,experiences and information among ethics officers and with the
ICAC and the CSB,periodic workshops on different topics concerning integrity,conduct and discipline
are organized for ethics officers and their assistants every year. Workshops have been organized andthe topics covered included administration of staff discipline; investigative skills in handling staff
discipline cases;and contract management and supervisory accountability.
In addition, an intranet for ethics officers has been developed to facilitate communication andprovide up-to-date information and reference materials related to integrity issues to ethics officers andtheir assistants. Contents uploaded include service-wide regulations on conduct matters,provisions of
the anti-bribery law;publications on subjects related to integrity of civil servants as well as information on integrity promotion events.
To help the ICAC and the CSB better understand the progress and needs ofthe organizations so thatICAC can perform its assisting role more effectively,ethics officers are requested to send annually to

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CRD a summary of their integrity promotion efforts.
The ELP has generated positive outcomes with more organizations assuming ownership of theirintegrity programmes and more senior staff getting involved in setting the direction of their integrity
management initiatives. After all, ownership and leadership are the key pillars of the ELP, without
which integrity messages cannot be spread to the civil service effectively.
With the platform and network established, we will continue to strengthen our partnership andcommunication with government organizations,identify their needs and provide the necessaryservices.
M ore importantly, we shall continue to encourage organizations to work on the four Cs which we
believe are the core elements in entrenching and sustaining an ethical culture in any organization. The
four Cs are:Commitment by senior management
Clear set of values and standards of behaviour
Communication of the values and standards to staff
Continuous and consistent actions in promoting integrity
Culture building is a long-term process requiring constant reinforcement and revised strategies. But
steady, persistent and continuous steps in the right direction will certainly bear fruit in the long run.
B. Working Together with the Private Sector
Three Articles of the UNCAC, namely, Articles 12, 13 and 39, emphasize the importance of therelationship between government and the private sector and the relationship between the anticorruption agency and the private sector in carrying out the anti-corruption responsibilities of enforcement, prevention and education. These obligations reflect the approach taken by the ICAC from thetime of its inception. Since that time, the ICAC has been putting great effort into developing andfostering close relationships with all areas of the private sector.
In combating private sector corruption, success did not come easily as in the beginning,there wasstrong resistance from the business community. This resistance was partly due to a misconception that
the ICAC was opposed to all business rebates and commissions ― even ones accepted as normal andproper. However,through our corruption prevention and communityeducation activities,we were able
to dispel this misconception and today the business community is supportive of the ICAC and has
become a key partner with it in the fight against corruption.
On the enforcement front,our investigating officers have established liaison contacts with all majorbanks, insurance companies, accountancy firms and other private entities for cooperation in theinvestigation of corruption offences in the private sector. The management of the private institutions
or business firms may, through the liaison contacts, makes reports of corruption to the ICAC.
On the prevention front, the Advisory Services Group of our CPD offers, on request, tailor-madecorruption prevention advice to any private organization on a confidential and free-of-charge basis.
The service provided to such private organizations ranges from the compilation of a code of conduct
for compliance by staff to a critical review of the organizationʼs operational procedures to identify
potential loopholes for corruption and malpractice and provide corresponding measures to plug theloopholes identified.
In enlisting public support in the fight against corruption, our CRD has been engaging the private
sector as detailed below.
1. Hong Kong Ethics Development Centre
The change in attitude of the business sector, from one of suspicion of the ICAC and hesitation to
working with it,to becoming an active partner in anti-corruption activities,is best seen in the setting

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up of the Hong Kong Ethics Development Centre(HKEDC). The HKEDC was set up in 1995 to promotebusiness and professional ethics as the first line of defence against corruption. Six leading chambersof commerce in Hong Kong are represented in an advisory committee to steer the work of HKEDC.
The HKEDC provides a wide range of consultancy services on corporate ethics programmes, forinstance,formulating and revising company codes of conduct,advising on systems control measures toplug corruption loopholes and suggesting tailor-made training.
The HKEDC also partners with various professional bodies and chambers of commerce in Hong
Kong to disseminate ethical governance messages to their members. The HKEDC has co-organizedseminars/workshops with different trade associations including those of small and medium size
enterprises as well as with relevant professional organizations relating to accounting, securities,
construction works,real estate,testing and certification,etc. It has established or maintained different
networks with different trades and professions in the private sector to leverage their support for
promotion of anti-corruption messages and corruption prevention services to their staff/member
companies through workshops, sharing sessions and feature articles.
In the World Bank 2003 publication entitled “Fighting Corruption in East Asia”, it regarded the
HKEDC as a unique and practical model of public-private sector partnership, saying “having agovernment agency directly involved in the dissemination of business ethics is quite exceptional
worldwide and reflects the very strong policy of prevention implemented in Hong Kong.”
2. Interacting with the Business Sector(a)Business Sector Talks
Since the 1990s, many commercial firms have actively put up requests for organizing corruption
prevention staff training. In recent years, an average of 30,000 business executives are reachedannually by CRD through talks,seminars,activities and special projects. CRDʼs presentations are not
only focusing on legislation, but also on ethical practices and the managerial role in preventing
corruption. Our colleagues would also tailor the content of the training programmes in accordancewith the needs and concerns of different industries.
(b)Trade Specific Programmes
CRD identifies priority trades to spread anti-corruption messages. Trade specific programmes havebeen introduced in industries like banking,construction,insurance,estate agents and many others. To
successfully build a culture of integrity in the business sector,we must win the support of the business
community and secure their partnership and initiative to take the lead in promoting business ethics.
(c) Listed Companies and DirectorsʼEthics
An important initiative of CRDʼs partnership with the business community is its programme forlisted companies. With Hong Kong being an international financial centre,listed companies form an
important pillar of our economy.
From the financial turmoil in the late 1990s and the subsequent corporate scandals and failures,weall knew that senior management and boards of directors of listed companies play a vital role inpreventing corruption and fraud, especially when ethical challenges confront them. CRD therefore
organized with 12 key partners, including regulators and professional bodies, a DirectorsʼForum in2007 and published a Toolkit on DirectorsʼEthics to provide practical tips for company directors to
perform their ethical leadership role.
To sustain the momentum of the programme, CRD now regularly joins its partners, such as the
Securities and Futures Commission of Hong Kong, Hong Kong Stock Exchange and the Hong Kong
Institute of Directors,to arrange training for directors serving in Hong Kong listed companies and in
M ainland China companies before listing in Hong Kong. CRD colleagues also actively approach newly
listed companies within three months after their Initial Public Offers to offer their services.
(d)Continuous Professional Development Requirement
M any professional bodies have proactively partnered with CRD to promote professional ethics totheir members.For instance,CRDʼ
s training videos have been incorporated in Continuous Professional

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Development courses of different trades and industries to make business and professional ethics anintegral part of the registration and licensing requirement of professionals.
(e) Guidebooks Publication
With the contribution and advice of various professional bodies, CRD has jointly published anumber of practical guidebooks to introduce corruption prevention measures and highlight the importance of ethics regarding specific professional practices.
(f) E-learning Materials
Using the digital platform, CRD has jointly developed e-learning packages with different professional associations, such as those for architects, engineers and surveyors. The e-learning materials
provide scenarios, quizzes and guidance for these professionals to resolve ethical dilemmas that they
may encounter in their workplace.
C. Engaging the Community in the Fight Against Corruption
There is no better formula for combating corruption than to engage the community. In doing so,
our CRD has deployed both mass media publicity and face-to-face meetings with members ofthe public.
They are used in a complementary way to increase both the breadth and depth ofour probitymessages.
By means of the mass media, our messages could reach wide and far to the collective masses.
M eanwhile, face-to-face contacts enable our messages to sink deep into the community.
To stimulate optimal impact, CRDʼs mass media publicity programmes and face-to-face anticorruption education work are target-oriented and designed to address the needs of society in changing
times.
1. M ass M edia Publicity
From the outset of its educational work in the 1970s, CRD made extensive use of the media tochange the publicʼs attitude and to create an awareness of corruption and an intolerance of it.
Nowadays, anytime, anywhere, through different media channels in Hong Kong, the community
receives our message.
An effective medium in mass media is the use of short and sharp advertisements on TV. The ICAC
was one of the first government departments in Hong Kong to spearhead the use of TV advertisements
to disseminate educational messages. Alongside with TV advertisements,a number of posters on thesame themes would also be produced to reinforce our messages.
Apart from TV commercials and publicity posters, production of TV drama series is anothereffective tool to galvanize community support. The episodes are based on real cases. They dramatically project the ICAC as a robust graft fighting agency with commitment and capabilities. They also
communicate effectively to the public the evils of corruption.
Our corporate website provides an easily accessible channel for the public to obtain information
about the ICACʼ
s work and its latest developments. Thematic websites that are specialized forindividual segments of the public were launched to provide tailor-made materials on corruption
prevention. Some examples of these special segments include teachers, business executives, building
management personnel, election candidates and even children.
The advent and popularity of social media opens up new fronts for us to engage in interactive
communication with the internet community. For instance,we now have a group on facebook named“iTeen Xtra”for the youth and run a YouTube channel with videos about our work for the generalpublic.
2. Face-to-Face Interactions
To complement the use of mass media for extensive publicity,we also reach out to the community
by engaging in face-to-face interactions with members of the public. On one hand,face-to-face contacts
allow our colleagues to grasp first-hand public sentiments. Their concerns could shed light on ICACʼ
swork planning and long-term development. On the other hand, direct contacts provide us with the158

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opportunity to dispel any misconception by the community and hence help build up the long-term
rapport and trust in the ICAC.
(a)Regional Offices
To reach out to the general public, we are now running seven regional offices in Hong Kong.
Located in densely populated areas,these regional offices allow us to initiate proactive and intensive
communication with the ordinary people in the street. M embers of the public can also make corruption
reports to any of these regional offices and their reports will be forwarded to the Report Centre tofollow up.
(b)Involving Young People
To achieve sustainable control over corruption, the ICAC well understood in our early days thatyoung people could not be ignored. To build up a community intolerant of corruption,we make surethat the younger generation ranging from kindergartens to universities receive our moral messages
both in curricula and in activities.
CRD has been disseminating probity messages to the youth in the course of their school lives
through teaching packages,educational projects or face-to-face talks/workshops. Over the years,CRD
has produced a number of teaching packages to facilitate educators to instil moral values in students
of various levels in class. It has launched a “personal ethics module”for incorporation into theuniversity curriculum. Apart from the curriculum, CRD has also put in place a number of activities
targeting the younger generation of various age groups starting from kindergartens. For kindergartens,CRD has created a set of cartoon characters for use in its moral education activity packages. The
characters are featured in both TV animation series and story books to instil positive values such as
honesty,fairness and self-discipline into kindergarteners. To appeal to the secondary school students
who look for more challenging and interactive modes of communication, in recent years CRD has
appointed professional drama troupes to develop interactive performances that draw young peopleʼsattention to the temptations that they may face.
(c) Launching Youth Engagement Integrity Programmes
Since the 2007/08 school year, CRD has been organizing the Ambassador Programme to mobilize
tertiary students to promulgate anti-corruption and integrity messages to their fellow students throughcreative on-campus and inter-institution activities. During the 2013/14 school year,the programme has
been extended to all the 17 local tertiary education institutions. In addition, the i-League wasestablished in 2010 to engage the support of past ICAC Ambassadors. Currently,it has more than 500
members.
Riding on the momentum of the ICAC Ambassador Programme, an “
i-Relay”Youth Integrity
Project (YIP)with a Youth Summit in April 2014 is being organized to promote exchanges on integrityrelated issues amongst tertiary students from Hong Kong, Mainland China and overseas.
A territory-wide iTeen Leadership Programme for senior secondary school students has beenlaunched during the 2013/14 school year. The iTeen Leaders assist teachers in organizing integrity
activities, such as a visit to the ICAC, interactive drama, video/microfilm show, mobile truck exhibition, etc. They will also be invited to join other voluntary services to promote anti-corruption work.
(d)Forging Partnerships with Educators and Parents
CRD has collaborated with teaching professionals in the production of anti-corruption and moral
education resources for young people. These teaching professionals have been invited to join theworking groups, conduct pilot teaching and provide feedback, etc. CRD builds teachersʼnetwork
through the establishment of the M oral Education Website and the publication of the ICAC Periodical.
CRD also produced parenting publications on positive values for parents. Short videos were also
produced to support the organization of parent education programmes in schools.
(e) ICAC Club
After all these years, there exists in the society a group of staunch supporters of the ICAC. To
provide a platform for these supporters to realize their involvement in the ICAC,the“ICAC Club”was

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established in 1997. The Club gathers volunteers from all walks of life in a systematic and organizedfashion to promote civic engagement in the anti-corruption work in Hong Kong. It now has amembership of some 1,500 who provide volunteer service to our daily work.

IV. CONCLUSION
Over the years, the one key message that has been brought home to us in our fight against
corruption is that we cannot do it on our own and that any success we might have is largely due to thetrust and support of the community we serve. We put considerable effort into developing that support
through our community relations work. However,engaging with the communityis also for the purposeof enlisting their assistance in preventing corruption from occurring. Our interaction with the community therefore has two key purposes:firstly to foster an intolerance of corruption;and secondly to,through their assistance, prevent corruption from occurring.
It is highly valuable to the ICAC that other than the private sector, public servants are also alert
to the problems posed by corruption and how it might arise in their workplace. The ICAC corruption
prevention work in the public sector is not just liaising with the senior management to develop lesscorruption prone administrative practices but is also about developing,amongst the staff,an awarenessof and intolerance to all forms of corruption. Of course, ICACʼ
s corruption prevention work is notconfined solely to the public sector and it extends to the private sector as well.
ICACʼs engaging all sectors of the community in the fight against corruption is instrumental to its
success. The ICAC has been in existence since 1974 and since that time,we have learnt many lessons
on how to deal with corruption and in this paper,I have tried to convey some of our experiences in theareas of corruption prevention and community education in the hope that they will be of assistance to
our counterparts in other jurisdictions.

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INTELLIGENCE BASED INVESTIGATION AND PROACTIVEINVESTIGATION:A WAY FORWARD
DatoʼAbdul Wahab Bin Abdul Aziz

I. INTRODUCTION
Malaysian Anti-Corruption Commission (M ACC) has operated as an independent agency since2009 and the year 2012 earmarked as the year of transformation. The entire MACC workforce has
absorbed and accustomed themselves with the various transformation implemented in aspects concerning operations,human capital management and prevention activities. However,the M ACC has a long
history in which the agency was established in October 1967. Working in the small units of theAnti-Corruption Agency (ACA) until it became National Bureau of Investigation (NBI) in 1982
involving national interest cases,and it was assigned back to ACA till 2009 to tackle corruption cases.
In its efforts to raise the level of confidence of the public and international fraternity as to theeffectiveness of the M ACC, investigation was one of the most important duties of the MACC thatneeded to be focused on. Due to the complex and involved cross boundary investigations, M ACC has
adopted a new approach, which is Intelligence based Investigation (IBI), through intelligence fact
gathering.
Intelligence based Investigation (IBI)is a methodology which is essential in producing efficient andeffective intelligence for the purposes of open investigations. The IBI approach not only shortens thecompletion time of an investigation but also enables effective pooling of various expertise needed indealing with complex investigations to yield positive outcomes in every investigation.With advanced
technology equipment, networking facilities and complete one-stop office facilities. Outlining of new
SOPs and assembly of operational toolkits are currently in their pilot stages of implementation anddevelopment of structured training modules.
Fighting corruption is the priority agenda of the government. Nonetheless, the government alone
would not be able to successfully eradicate corruption. The establishment of M ACC is only a part ofthe official mechanism to fight corruption but the commission,however effective it is,would not be able
to fully eradicate the scourge without the support and trust by all parties concerned.
Our Commissionʼ
s logo “Fairness, Firmness and Trustworthy”is to ensure that all the Commissionʼs actions are done fairly without any prejudice and discrimination in accordance with the law at
all times. Besides firmness, the Commission will also investigate all the corruption cases objectively
and impartially, and we keep our promise to discharge our duty with full responsibility at all times.
Besides that,our client charter has promised to act on complaints on any form of corruption within 24
hours after receiving a complaint and a complainant will be informed upon request on the status of thecomplaint after 28 working days from the date of the report which he/she had made.I must stress herethat only the legitimate complainants will be notified by the commission on the minimal status of theinvestigation without disclosing all the material evidence in order not to jeopardize the case.
For MACC, having a strong capability is easier said than done; the current success does notguarantee future success. In a way, it is a race against the corrupt and the criminal minded as they
resort to use of technology and more sophisticated modus operandi to commit corruption.In order tosecure the relevant evidence which builds corruption cases, right-minded officers trained by M ACA
must be prepared to cope with the spirit of the Commission and to combat the corruptors,regardlessof his/her position in society or political parties.
Director of the Malaysia Anti Corruption Academy (MACA).

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In order to complete the basic training,the new cadets must undergo six (6)months basic training
in various aspects and tools before they are posted for the on-job training. These enable them to beready to fight corruption and carry out the agenda of the Commissions.

II. UNCAC RATIFICATION:OVERVIEW OF THE LEGAL AND
INSTITUTIONAL FRAM EWORK AGAINST CORRUPTION OF MALAYSIA IN
THE CONTEXT OF IM PLEMENTATION OF THE UNITED NATIONSCONVENTION AGAINST CORRUPTION
M alaysia is a constitutional monarchy based on the British Westminster model.The power to enact
laws is vested in Parliament at the federal and state levels. According to article 160 of the Federal
Constitution,laws include written laws,the common law,and any custom or usage having the force oflaw. English law has been adapted to local circumstances.Following the common law tradition,laws
are constantly developed through case law.Islamic law is applicable onlyto M uslims and is administered by state Syariah courts in matters not related to corruption.
M alaysia signed the Convention on 9 December 2003 and ratified it on 24 September 2008. The
Convention entered into force for Malaysia on 24 October 2008. Among the relevant institutions in
M alaysia that contribute towards the fight against corruption are the Malaysian Anti-Corruption
Commission (MACC),the Attorney Generalʼs Chambers (AGC),the Royal Malaysia Police (RM P),theRoyal Customs and Excise Department,the Financial Intelligence Unit ofthe Central Bank ofM alaysia(FIU), the M inistry of Foreign Affairs, the Public Service Department (PSD), and the Judiciary.1
M alaysia is a member of the ADB/OECD Anti-Corruption Initiative for Asia and the Pacific,theSouth East Asia Parties Against Corruption (SEA-PAC) mechanism, the Asia Pacific Economic
Cooperation (APEC)Anti-Corruption and TransparencyWorking Group,the Asia Pacific Group (APG)
on M oney Laundering, the Offshore Group of Banking Supervisors, the Egmont Group of Financial
Intelligence Units,the International Association of Anti-Corruption Authorities (IAACA),the International Anti-Corruption Academy (IACA), INTERPOL, and ASEANAPOL. Malaysia has fulfilled therequirements of the Convention.

III. CRIMINALIZATION AND LAW ENFORCEM ENT ― OBSERVATIONS ON
THE IMPLEMENTATION OF THE ARTICLES UNDER REVIEWM ACCA 2009 addresses the following important issues:
Bribery and trading in influence (articles 15, 16, 18, 21)Sections 16, 17 and 21 of the Malaysian Anti-Corruption Commission Act of 2009 (M ACCA)
criminalize active and passive bribery. In all cases the penalty is imprisonment for up to 20
years and a fine, as defined in section 24 of MACCA.

Participation and attempt (article 27)
Section 28 of M ACCA regulates all forms of participation. Section 107 of the Penal Code On
abetment is also relevant.The interpretative notes in the Penal Code clarify that acts Page 6of 502 of instigating, aiding or facilitating an offence can also be subsumed under the term
abetting. The same interpretation is applicable for abetting under section 28 of M ACCA.
Criminal attempts are legislatively covered in section 28 of MACCA, section 4 (1) (a) of
AMLATFA, and section 511 of the Penal Code. Section 28 of M ACCA also covers “any act
preparatory to or in furtherance of the commission of any offence”.
A. What? ― History of Intelligence Based Investigation
Todayʼ
s achievement may go in vain if the investigation methods and strategies remain the same
towards corruptors as yesterday.As we race against the corruptors somehow new counter forces need
1Malaysian AntiCorruption Commission website: http://www.sprm.gov.my/>.

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to be designed in order to prepare the minds and esprit de corps of the fellow officers to win the war
against corruption. Once a corrupter has been brought forward to the court, all the methods andoperation strategies of the commission have been exposed in the court,the potential corrupter changes
his modus operandi to the new methods which are beyond the imagination of the enforcement agencies,
thus creating new challenge for the commission to track down the modus operandi.
Early forms of Intelligence Based Investigation were introduced in Great Britain in the early 1990s
and is based on the “Kent Policing M odel”.2 This investigation focuses on the local crimes dependingon the seriousness of the crime and carried out entirely by the intelligence unit. After the completionof the intelligence investigation,all the criminals will be handed over to the open investigation unit tobe prosecuted.The “Kent Policing Model”was then upgraded to the new USA model.This new USA
model is the combination of intelligence information center and multiple agencies.
Because of misuse, the word “intelligence”means different things to different people. The mostcommon mistake is to consider “intelligence”as synonymous with “information.”Information is notintelligence. Misuse also has led to the phrase “collecting intelligence”instead of “collecting information.”Although intelligence may be collected by and shared with intelligence agencies and bureaus,
field operations generally collect information (or data).Despite many definitions of“intelligence”thathave been promulgated over the years,the simplest and clearest of these is “information plus analysis
equals intelligence”.3
1. Strategies of IntelligenceIntelligence is divided into strategic and operational intelligence. Strategic intelligence provides
M ACC policy makers with the information needed to make national policy or decisions of long-lasting
importance.Strategic intelligence collection often requires integrating information concerning politics,
economics, societal interactions, and technologies developments which focus less on the big scale. It
typically evolves over a long period of time and results in the development of intelligence studies andestimates. Operational intelligence is concerned with current or near-term events. It is used to determine the current and projected capability of a program or operation on an ongoing basis and does not
result in long-term projections. Most intelligence activities support the development of operational
intelligence.4
Intelligence-based investigations are carried out by:collecting databases from public and private to
analyze the information, creating a new intelligence product which covers the ways to handle thecriminals and targeted groups,analyze the crimeʼ
s trend to reduce it and setting up multiple objectives
strategies.
2. Proactive Based Investigation from M ACCʼs PerspectiveIntelligence has been used in the past for the political motivated;however, it was the intelligencepolicing that sparked most controversy. Undercover policing within the MACC 2009 framework now
has been widely used by its officers. On the contrary, it was widely accepted, as long as the M ACC
officers did not provoke the commission of crimes by those involved in the corrupt practices.Previously,M alaysian anti-corruption laws scholars of the time,similar to our counterparts elsewhere in someof the countries which did not focus on the anti-corruption works,were full of the academics,lawyers
and considered these MACC works to fall outside of the framework of enacted legislation.
3. Legal Framework of Undercover Operations
In 2009, under the MACC act by the virtue of Section 52,in which the evidence of accomplice andagent provocateur(a)5 no witness shall be regarded as an accomplice by reason only of such
witness(b)
shall be presumed to be unworthy of credit by reason only of his having attempted
2United Nation convention against Corruption, signature and ratification status as of 27 September 2003.

http://www.
unodc.org/unodc/en/treaties/CAC/signatories.html>.
3IntelligenceLed Policing: The New Intelligence, Bureau of Justice Assistance, M arilyn Peterson, 2003.
4Intelligence Collection Activities and Disciplines, Greenbelt, M D:IOSS, April 1991.
5Intelligence Collection Activities and Disciplines, Interagency OPSEC Support Staff, Compendium of OPSEC Terms,
Greenbelt, M D:IOSS, April 1991.

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to commit, or abet, having abetted or having been engaged in a criminal conspiracy to commitAndsuch evidence against such person(c) Any statement, whether oral or written, made to an agent
provocateur by such person shall be admissible as evidence at his trial.The Anti-Corruption action thecandidly stress that the successful use of the ruses to apprehend wrongdoers reflected the professional
qualities of the MACC concerned. Action against wrongdoers without fear or favor to this evolution
by issuing secret guidelines on the use of the so-called “special investigative methods”,had entrusted tothe most risky ones to specially trained and equipped special division within M ACC also known as the
special intelligence division which was led by a director.However,they accepted some of the proactive
policing as a means to reach the targets of official investigation in the stricter, lawful, sense of theword.
B. Why?
1. Purpose of Intelligence Gathering
Due to effective intelligence operation conducted jointly by MACC and other relevant agencies,
local government agencies combating “Sand”stealing,which is under the purview of the state government,the state officers are vulnerable to all kinds ofthreats while “on the beat”collecting information,these intelligence operation can be applied.However,the intelligence operations of the state and local
law enforcement agencies often are plagued by a lack of policies and procedures.
To neutralize the problem,basic changes are required in the way information is gathered,assessed,
and redistributed.All the traditional intelligence functions need to be overhauled and replaced with thecooperative, fluid structures that can collect accurate information for the end users faster.
―Syndicated crimes/organized crimes are alarming and naturally reduce the income of thenationʼs economy.

―

Witnesses afraid of self-security due to threats and less patriotism―

M ost of these syndicated crimes are against the public interest and the nationʼs security,and
also the stateʼ
s natural resources have been taken awaywithout following the proper channels.

―

Other relevant authorities,such as local enforcement not capable to encounter the threats ofrings which need federal enforcement assistant to crackdown all illegal activities i.e Sand
stealing, illegal mining, etc.

The ultimate purpose of proactive investigation is to assist open investigation by:
Improving in the overall intelligence operation
Solving issues or problems as a good planning techniques
Giving quality data analysis
Having better development techniques in operation and training
C. How?
The center nerve of intelligence is based on analysis of the collected data; intelligence always
requires huge amounts of data and information. Traditionally, collecting data from various sources
such as overt and covert, it has aspects of intelligence, with law enforcement and supporting teams
dedicating significant resources to gathering data. Current trends should focus on the crime analysis
methods which analyze the crime pattern, time-series, behavioral analysis and so forth.
One way to reevaluate intelligence is to include a feedback form with each product that is disseminated. To ensure that the comments made are valuable, the form should focus on the questions
which need to be more specific, and it will be useful for intelligence purposes.
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information that are compared, analyzed and weighted to allow the development of conclusions.
Finished intelligence is produced through analytical review in the intelligence process.The intelligenceprocess confirms a fact or set of facts through a multiplicity of sources to reduce the chance oferroneous conclusions and susceptibility to deception.
1. Tools(a)Informants
An informant normally is a person who knows better about the crimes which are going to beinvestigated. Informants can help the intelligence in high profile cases which are hard to penetrate
through normal investigation,by providing a better way for the investigation to start. If someone had
been assigned, he or she may be limited to certain information, so all those involved should establish
information-sharing databases and receive intelligence awareness training to be able to interpret
information using analytical methods.
(b)Deep cover
The deep cover officers task would be to penetrate organized crime circles and collect and gather
information which would be used as a strong starting point for open investigation;later they aim toarrest all those perpetrators and seize all the offence-related material to be used as evidence in thetrials.
(c) Usage of UCA/UCO
The top management of the MACC would be justified in the withholding of this UCA status bypointing out that the UCA members would gather information and basically they would not be
involved in the methods of open investigation.They would have to hand over the collected information
to the investigation unit which was created within the intelligence division to established investigation
units either in headquarters or zone for further investigation process.
(d)Law, SOP & Guidelines
Create proper SOP and guidelines, regardless of the size and scope of its intelligence operations.
Every agency should have mission statements plus policies that can help define the support ofcommand
staff for intelligence purposes.
2. Process
The process of proactive based investigation involved:

―

―

―

―

Step 1 -Focus of the operations
This IBI method only will be used for syndicated cases which are complex and involve a
middle man,and the enforcement agency does not have a forthcoming witness which may leadto the open investigation.It will be carried out through few levels of operation which include
intelligence work, undercover operations, spying and investigation.
Step 2 -Facilities in collecting data and information
This strategy is very important in IBI and the basic technical aid for recording, interception
and tapping is a must as a part of the evidence collecting method.Other facilities needed liketransportation with a fake licence plate number, a safe house in a hidden place and fake
identities for the undercover officers to ensure smooth intelligence operations.
Step 3 -Proactive measurements
Proactive measurements should be always given a priority in IBI. The systematic working
procedures are very important to make sure the operationʼ
s success. This method can beachieved by giving important priorityto the project paper,using ofthe undercover officers andundercover agents, fixing the technical aids and zoning system in daily intelligence work.
Step 4 -Usage of informants
Informant normally is a person who knows better about the crimes which are going to beinvestigated. Informants can help the intelligence in the high profile cases which are hard topenetrate, by providing a better way for the investigation to start.

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Step 5 -Centralized information
The final strategy in IBI is a centralized information system.By having this type of information system, the investigation can be accomplished in a short period of time, effectively andsecretly. Normally a centralized system will be used to profile and intercept the suspects.

3. Training Aspects ― Intelligence Based Investigation Course
As a training provider MACA, acting as the key to change within the organization, the recent
emphasis on intelligence reveals that many M ACC staff involved in intelligence do not fullyunderstandthe concepts of intelligence.Its purpose is to establish an awareness program for the young officers toknow more about the Intelligence Based Investigation.
Training is basically 40 hours in length and should encompass the intelligence process, the importance of the adopting the IBI concepts,proper handling of information and intelligence,the analyticalprocess,the development and implementation of the collection and plans;and also other ethical issues
relating to intelligence.
The course focuses on:i)Explaining the principle of the intelligence model at all levels and the roles of intelligence-led
investigationii) Explaining how the intelligence requirement is necessary to intelligence-led criminal investigationiii) Summarizing security issues in relation to integrity of systems and procedure in an intelligenceenvironmentiv) Demonstrating a thorough understanding of the role of analysts and the need to manage theinput of data
In this course would be shared the best practices and effective strategies, not just focusing on theoffenders but the right and safe path for all agencies that combat organized crime.The main aim is toenhance the strategies and operational focus of organizations, federal, states and local entities.
The course contents focus on;

166―

National Intelligence model ― This model was designed to focus on the collectively
national agenda which involves local issues, cross border issues and serious and organizedcrimes.

―Intelligence cycle ― Intelligence requires a leader to understand the basis for planningand conducting tactical operations,as to whether to use local operations or otherwise depending on the situation,particularly with the environment and potential threat.The leaders roles
in identifying and understanding the key intelligence needs.

―

Information management ― The know how to handle the source person,and integrated
intelligence approaches that bring together many different methods using intelligence as athreads to bind them.

―

Adopting a Proactive Approach ― This program uses proactive intelligence gathering,
technology and teamwork to ferret out offenders in the community and uses that information
to begin with surveillance ahead of the commission of the offence.

―Intelligence Product ― The development of intelligence products requires the same
responsibilities and resources based on four products, i.e. strategic assessments, tacticalassessments, target profiles and problem profiles.

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Analytical Investigation Methods 6 ― To share the very basic investigative analysis
techniques using information collected in databases. Further, one will understand and know
how to use link analysis by various nationwide and regional databases, analyze the dataprocessing and techniques used by investigators for investigation purposes. Develop andanalyze flow charts to enhance the investigation.

―

Operational Order and Briefing ― Operational order,how the operational manner needs
to be executed in applying all the intelligence methods. What a brief should consist of isimportant,but it is also important to know how to give and prepare a brief;above all it must
be good,accurate,brief,and clear,and these should be kept in mind during the brief preparation and execution.

M ACA has conducted this IBI course and it is designed to provide the intelligence analysis skills tothe participants and focuses more on in intelligence process, critical thinking and undercover
approaches and techniques. From the course, it develops knowledge, understanding, skills, attitudes,
behavior and application on all aspects of the intelligence-based investigation, theoretically andpractically. It is also to equip participants with the basic skills and expertise which are fundamental
in the undercover operations. The duration of the course in five days and the methodologies includelectures, practical training on undercover operations, presentations and case studies. Since 2011,
M ACA received 35 participants from 11 countries from all over the world;Sri Lanka,Fiji,Cambodia,
Indonesia, Brunei, Taiwan, Palestine, Swaziland, M aldives, Yemen and Nigeria.
4. Success Stories(a)Operation “Compact”
47 runners and staff of the Computerized Vehicle Inspection Centre(PUSPAKOM )were busted
during the operations.The staff and runners giving the “all clear”sign for faulty vehicles andapproving inspections without the presence of the vehicles by taking bribes.Each of the staff
members and runners were receiving up to RM15,000 monthly as a bribe. ― Intelligence
Division, MACC(b)Operation “
Kawal”
M alaysian Custom Officer at M alaysia-Indonesia border checkpoint received corrupt moneyfrom gas cylinder smugglers for allowing them to transport prohibited items to Indonesia.Gas
cylinders are controlled items in Malaysia under the Control of Supplies Act 1961.They werecaught and investigated under Section 16 & 17 of the MACC Act 2009.The outcome from thisoperation:
8 persons were arrested including one customs officer
5 accused were charged in court for smuggling controlled goods
4 accused pled guilty and one withdrawn charge
1st Accused -Fine RM135,000.
2nd Accused -Fine RM5,000 and one year imprisonment
3rd Accused -Fine RM 5,000 and one year imprisonment
4th Accused -Fine RM35,000
Total Fine
＝ RM 180,000
5. Challenges
From the beginning, legal scholars and even prominent members of the prosecution, quietly
protested against the renewal of the undercover policing.First of all the argument is that there was noadequate legal basis for the systematic use of the undercover methods, which could easily infringe inthe private lives of the citizens. The other argument is that, it is fundamentally wrong if there is aseparation of the“intelligence investigation unit”from the“investigation action unit”in the corruption
investigations cases, simply because they are two sides of the same coin.
6M alaysian AntiCorruption Commission Act 2009.

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Due to uncertainty in the law and less development law in the area of undercover operations in thiscountry, the courts cannot set binding precedent, but case law nevertheless is important for theinterpretation of the law. It has filled the vacuum to some extent.

IV. CONCLUSION
Currently, the Malaysian government must use all resources to eradicate corruption in all sectors,
thus, the IBI mechanism will be a catalyst for other enforcement departments to follow in the journey
to fight corruption.As for M ACC,we would like to actively strengthen exchanges of ideas with others
departments, be it from local government agencies or federal organizations, those who seek to joinhands to fight corruption in the name of prosperity, mutual respect, and efficiency so as to make acontribution to the national economic prosperity.
Lately, among the local government agencies and federal departments, awareness has grown thata structured intelligence investigation mechanism has become indispensable. The label “proactive”,inour view indicating that law enforcement is taking the initiative which should enable it to prevent
crime from occurring or to be present when there are crimes committed, is therefore often used as asynonym for either “undercover MACC activities”or for“
special investigation methods”.Further MACC
will use all the resources that have been vested to it to further enhance the capabilities of its officers
to the maximum.
References:
1. M alaysian Anti-Corruption Commission website: http://www.sprm.gov.my/>.
2. United Nation convention against Corruption,signature and ratification status as of 27 September
2003. http://www.unodc.org/unodc/en/treaties/CAC/signatories.html>.
3. Intelligence-Led Policing: The New Intelligence, Bureau of Justice Assistance, M arilyn Peterson,
2003.
4. Intelligence Collection Activities and Disciplines, Greenbelt, M D:IOSS, April 1991
5. Intelligence Collection Activities and Disciplines, Interagency OPSEC Support Staff, Compendium of
OPSEC Terms, Greenbelt, M D:IOSS, April 1991.
6. M alaysian Anti-Corruption Commission Act 2009.
7. Drugs Enforcement Agency, United States of America, New wave to fight drugs 1984.
8. National Criminal Intelligence Service, NCIS 2000, http://www.ncis.co.uk>.
9. Intelligence-Led Policing: The New Intelligence Architecture, U.S Department of Justice Office
Programs, Marilyn Peterson, 2005.
10.Wright, Richard. 2001. “M anagement of the Intelligence Unit.”In Intelligence 2000: Revising the
Basic Elements,edited by M arilyn B.Peterson,Richard Wright,and Bob M orehouse.Lawrenceville,
NJ: International Association of Law Enforcement Intelligence Analysts and Law Enforcement
Intelligence Unit.
11.1998. “Ten Steps to Establishing a Criminal Intelligence Unit.” In Issues of Interest to Law
Enforcement, Criminal Intelligence: A Vital Police Function, edited by M arilyn B. Peterson.
Sacramento, CA:Law Enforcement Intelligence Unit.
12.2002.“
Toward a M odel for Intelligence-Led Policing in the United States.”In Turnkey Intelligence:
Unlocking Your Agencyʼ
s Intelligence Capability.
a. CD-ROM . Lawrenceville, NJ: International Association of Law Enforcement Intelligence168

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Analysts, Law Enforcement Intelligence Unit, and National White Collar Crime Center.

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ENHANCING COOPERATION AM ONG SECTORS IN CORRUPTIONPREVENTION STRATEGY:M ALAYSIAN EXPERINCE
DatoʼAbdul Wahab Bin Abdul Aziz

I. INTRODUCTION
The M alaysian Anti-Corruption Commission (MACC)has been in operation since the inception of
the Malaysian Anti-Corruption Act 2009 incorporated in the Laws of Malaysia Act 694 on the 8th ofJanuary 2009. Amongst the important provisions of the Act, under Section (7), being the functions ofofficers ofthe Commission,sub-section (c),(d)and (e)have been emphasised as,among other provisions,best practices and good governance.The said provisions mentioned specifically and categorically are
as follows:(c)to examine the practices, systems and procedures of public bodies in order to facilitate thediscovery of offences under this Act and to secure the revision of such practices, systems orprocedures as in the opinion of the Chief Commissioner may be conducive to corruption;(d)to instruct,advise and assist anyperson,on the latterʼs request,on ways in which corruption may
be eliminated by such person;(e)to advise heads of public bodies of any changes in practises,systems or procedures compatible
with the effective discharge of the duties of the public bodies as the Chief Commissioner thinks
necessary to reduce the likelihood of the occurence of corruption.
Having said that,the priority of the M alaysian Government is to promote good governance and bestpractises as the way forward in its agenda for a corruption free public and private environment. Big
conglomerates in the private sector who are actively trading in worldwide businesses suffer the wrathof corruption mostly,at least. As mentioned by Arvis and Berenbeim,the fact that corruption hinders
the development of the private sector is now widely accepted,to the point that many practitioners tend
to rank it as one of the most serious obstacles to business.
The M ACC is gigantically tasked with the minimization and,if possible,the total eradication of thedisease. Though a herculean and mammoth assignment, the war against corruption is a never ending
one.A top down or bottom up approach1 has to be adapted and adopted,depending on the level of thegovernmentʼ
s role, public awareness, freedom of the press and civil society. As for M alaysia, a top
down approach has been deployed to combat corruption.The level of print mediaʼ
s independence alsosays a lot about the strategy to be deployed against such a plague of unheard of or untold ofmagnitudinal scale.Many strategies have been deployed to combat corruption.Many more approaches
have been devised to eradicate bribery, the abuse of power, and deviations. M uch has been said anddone to address the said scourge,yet much more needs to be done to arrest this particular disease.This
menace has occurred since time immemorial.This scourge has often been seen and heard as a cancer
in society, be it in the first or third world countries. It spreads even faster in underdeveloped anddeveloping countries because the civil society and the populace face poverty and illiteracy, among
others.
Though these steps and measures involves massive operations and task forces,the real art of war
Director of the M alaysia Anti Corruption Academy (M ACA).
1Top down approach refers to governments playing the dominant role in fighting corruption whereas bottom up approachrefers to press freedom and civil society leading the war against corruption.Third world countries usually have top down
compared to first world countries adopting bottom up approach in the war against corruption.

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against corruption must certainly be grabbing the bull by its horns. Preventive measures are themeasurables of combating corruption in the twenty-first century. The old adage that prevention isbetter than cure is relevent and applicable in the present decade.This mode of operation is the in-thing
and the in situ typology.Being less messy and more desireable,this paradigm shift has been focussed
as the ideal weapon for the war against corruption. It has now widely accepted that corruption has
negative economic consequences (Hunt, Jennifer & Laszlo, Sonia:2005).
The MACC has a logo portraying captions of Fairness, Firmness and Trustworthyness. In simple
terms,the M ACC practices a culture of acting without fear or favour.The M ACC is also colour blind.
It pays no respect to social issues of colour,creed and culture.Being impartial,unbiased and unprejudiced has always been the utmost top criteria for the MACC in achieving its objectives and goals. It
has an unfair advantage over public and private entities in the sense that its services and goods are free,soverign and independent. However, more often than not, a public official usually abuses his public
position for private gain.2 Part and parcel to its priority in its tasks is the Corporate Integrity Pledge(CIP).
The meanings of the three key words have to be crystal clear and precise so as to further add value
to the value chain as well as innovate the very idea of a CIP. According to the Oxford Dictionary,“corporate”refers to the image of a company.Integrity has a far-fetched interpretation in having thequality of being honest and having strong moral principles.3 Among the necessary tenets of integrity
are openness, good governance,accountability and transparency.Some observers have equated integrity to being perfect and sound values.Others have even associated integrity with holy and godly.As
for the pledge,it refers to a promise or undertaking.These connotations have to be adhered to strictly
and sincerely.

II. WHAT IS A CIP?
The CIP is a document that allows a corporate entity in Malaysia to show their commitment insupporting the principles of corruption prevention. It is a statement (documented) by a company
voluntarily committing itself to uphold the Anti-Corruption Principles for Corporations. Hence, thesaid company which signs the pledge is making a unilateral declaration, amongst others:a) Will refrain from all forms of corrupt activities,meaning to say it will not commit corrupt actsb) Will work towards creating a business environment that is free from corruption.
c) Last but not least,it will uphold the Anti-Corruption Principles for Corporations in the conductof its business and in its interactions with its business and its interactions with its business
partners and the Government.
The initial originator of the CIP was the M ACC. It was the brainchild of a M inister in the Prime
M inisterʼs Department, the Right Honourable DatoʼIdris Jala4 who suggested that the M ACC spearhead the movement.He was personally brought into the Malaysian Cabinet by the Honourable Prime
M inister Dato SriʼM ohd Najib bin Tun Abdul Razak to enhance the performance ofgovernment-linked
companies which were in the red. The M ACC was made the custodian of the CIP in M arch 2011 andlater passed the baton to the Malaysian Institute of Integrity(IIM )who later on involved Transparency
International-Malaysian Chapter (TI-),Companies Corporation M alaysia (CCM),National Key Result
Areas (NKRA), Performance Management and Delivery Unit (PEMANDU), Securities Commission(SC)and M alaysian Stock Market (Bursa M alaysia).

2Official definition of corruption of the World Bank.
3Oxford Advanced Learnerʼ
s Dictionary, Eighth Edition:2010.
4He has served internationally and brought the last organization Shell M alaysia Berhad to greater heights and astronomi-

cal achievements. He has also transformed the M alaysian Airlines System and brought it to being a profitable entity.

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III. WHY SIGN THE CIP?
A. Effects/Benefitsa) A company will be making a clear stand of how it operates.This will be locked down in writing.
It is stating a bold statement on its vision and mission and its anti-corruption stance in its
business codes of conduct and ethics. Do the due diligence on them. Never instruct them to do
whatever it takes to get the job done. Horowitz, Bruce:2007).
b) It will encourage a company to work on their own anti-corruption programme and internal
systems and processes.This will be a guidance to the companyin its business interactions,should
it be faced with the possibility of condoning any payments or other activities that would amountto corruption.
c) It will certainly have a positive impact whereby increasing the level of confidence for domestic
and foreign investment.
d) A company can use this Pledge to set itself apart from its peers.It demonstrates that its business
operations do not include any hidden risks or costs that are associated with corrupt activities.
Ira Belkin,former China Legal Exchange Officer for the U.S.Department of Justice,took a hard
stand, saying there is never any justification of breaking the law. He said even if bribes are astandard way of doing business, you donʼt want to be the one person caught and prosecuted.
(Silverthorne, Sean:2005)
To sum up,the main objectives are achieving a zero tolerance for corruption as well as enhancing
integrity and formulating a corruption prevention programme. This dual approach has far reaching
aspirations and far-sighted, holistic approaches to put corruption in check as far as the business
community is concerned.
Having indulged in the above cost benefits and causal reltionships between the CIP signatories andthe MACC, the Anti-Corruption Principles for Corporations in Malaysia are as below:i)

It commits to promoting values of integrity, transparency and good governance.

ii) It strengthens internal systems, that support corruption prevention. The law should requireinterested directors to abstain from voting on transactions in which they have an interest.5(M cGee, Robert W:2009)iii) It complies with laws, policies and procedures related to fighting corruption.
iv) It fights all and any form of corruption.
v) It supports corruption prevention initiatives by the Malaysian Government and the MACC.

IV. HOW THE CIP IS PRINCIPLED?
i.

The first step is the signing of the pledge. The said companies sign the respective pledges attheir premises with the MACC. The pledge is a standard document with its respective anticorruption initiatives.

ii. Then,the companies work to self-assess their strength of their corporate integrity system.The
CIP ensures the level of corporate governance in place within the said companies.The company
also identifies an action plan to strengthen their internal systems. This is the self-assessment
stage.

5For a full report on Corporate Governance in Developing Economies of Africa, Asia and Latin America, see M cGee,

Robert W:2009 which incluides a case study on Malaysia.

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iii. The next stage of implementation is to close the relevent gaps.The action plans are implemented immediately by the company concerned. The said companies also adopt and adapt anticorruption business principles. The cases of corruption reported by the media tend almost
always to involve a private party (a citizen or a corporation) that pays or promises to pay,money to a public party (a politician or a public official, for example) in order to obtain anadvantage or avoid a disadvantage (Argandona, Antonio: 2003). These companies have toestablish infrastructure:Governance and Ethics Board Committee.Needless to say,conducting
training also has to be in the basket of deliverables.
iv. Finally,they have to do the necessary reporting which includes anti-corruption elements in theaudits. Companies also have to include reporting on anti-corruption measures in their annual
reports.
However it has to be borne in mind that however the CIP is principled,the syndrome of corruption
is a fact of life for all continents around the globe.Not onlydeveloped countries suffer from the various
syndromes of corruption,the developing,lesser developed and least developed countries also suffer inthese aspects of corruption. Johnston, M:2005 has categorised all the nations said above as having
characteristics and features clustered as elite cartels as the U.S, Germany and Japan, elite cartels as
South Korea, Italy and Botswana, oligarchs and clans as in the Phillipines and Malaysia and official
moguls as in Indonesia, China and Uganda.
The author has provided statistics and data for his illustrious work for classifying these countries
categorically.His book has been discussed widely and in indepth by Professor Nikos Passas on North
Eastern University,U.S.and Professor Claudia Baez Camargo of the Basel Institute of Governance for
the M ACS 2012-2014 programme at the United Nation Office of Drugs and Crimes in Vienna,Austria.

V. WHEN AND WHERE IS THE CIP M ONITOREDThe CIP is monitored annually.The Officers from the Consultancy Division make yearly checks onthese companies to ensure that the anti-corruption elements have been inculcated in their audit andaccoutancy procedures. These companies also have to report on latest and recent anti-corruption
initiatives as part of their ongonig anti-corruiption efforts.Theyalso have periodic pledge synchronization meetings to discuss their latest role play in absorbing new and innovative ideas for their existence.
Lastly,they too need to enclose implemented anti-corruption initiatives in their annual reports.Though
there is much global corporate governance,they too adopt best practises and good governance as a tool
to move forward.
The United States and Britain had adopted a shareholder-centric model of corporate governance(often referred to as the Anglo Saxon model).The Germans along with several other European nations,adopted a stakeholder-centric model of governance. The Japanese model was built around business
relationships, with Japanese banks, customers, and suppliers all influencing board-level decisions(Larcker, David F &Tayan, Brian:2007).

VI. TRAINING ASPECTS
Several training programmes and sessions have been introduced by the M alaysian Anti-Corruption
Academy to further enhance the Integrity Awareness Programme., being the Generic module andspecific module.There are also eight (8)integrity initiatives which have to be adhered to and compliedwith strictly so as to make the CIP and Certified Integrity officers to function effectively and efficiently. There is also an Ingrity Pact (IP) introduced to the companies who are engaged in procurement
activities with mostly government, non-government and government-linked companies.
The difference in the IP is that it is legally binding on the companies which provide goods,services
and supplies to the said companies.They may be barred,or suspended or blacklisted if they are known
or found guiltyofcorruption in service contracts,supplywhich involve these said agencies.An example
is Alcatel-Lucent SA which has been debarred for a certain time period from supplying and providing
services.

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M ACA is also being tasked to handle training for the Certified Integrity Officers (CeIO) for theprivate sector and public sector. The programme components for the CeIO introduce extensively theconcept of integrity, the practice of integrity, ethical compliance and monitoring as well as theformation and formulation of an Integrity Plan for their respestive departments. As far as learning
objectives are concerned, the CeIO, at the end of the programme will have had the opportunity to:i.

Plan effectively and make an accurate decision on any question or concerning integrity.

ii. Apply the integrity concepts, directly and effectively to the organizationʼ
s daily operations.
iii. Analyse methodologies for identifying, understanding, handling and response action.
The Corporate Integrity Development Centre (CIDC) has been tasked for such deliverables. The
participants have been tasked with managing their departmentʼ
s Integrity Plan and Code of Ethics/
Conduct which were not practised previously. MACA, with its CIDC has been accredited with thissuccess. The honourable Prime Minister of Malaysia has a personal hand on this programme.
The CeIO programme has been seen as attaining the aspirations as well as the accomplishing of thevision and mission of Malaysia to see a corrupt free country for the present generation and the future.
The event for international CeIOʼ
s on 21 October to 1 November 2013 is testimonial for the success of
the CeIO programme as it has gained recognition globallyas a milestone in the fight against corruption.
As such,M alaysia is a front runner and innovator in this field of adding value to the value chain in thefight against corruption.However it is just a first and foremost step for M alaysia but a giant quantum
leap for mankind.

VII. SUCCESS STORIES
Among the multinational conglomerates in Malaysia,and to name a few among the many,Tenaga
Nasional Berhad,Telekom M alaysia Berhad,Bank Islam Berhad and M alayan Banking Berhad havetaken bold and brave steps to make their signatures on a corrupt-free private, business environment.
Up to June 2013,the CIDC has churned out 115 Certified Integrity Officers from 39 private entities and
52 government agencies.
From the 39 private entities that have participated in the CeIO programme,a few of these agencies
too have signed the CIP and the Integrity Pact (IP).This,in turn,spearheads a positive momentum inthe fight against corruption.These particular individuals will inculcate and promote positve values in
integrity within their respective organizations.
Thereby,awareness in anti-corruption strategies is intact in these organizations so as to propel thebattle against corruption. Beginning from 1st August 2013, according to government circular number
6 of 2013, every government department has to have a mandatory Certified Integrity Officer who has
been trained by the MACA. The integrity unit in the government departments have been tasked topromote good values of integrity amongst their staff.
The Certified Integrity Officer also has to instil good governance among its staff,sustain integrity
through the office culture, and execute integrity tenets and principles in the said organizations. The
other said duties are the detection and confirmation of corrupt practises amongst staff as well as
revealing different breaches of crime to the relevent law enforcement agencies.
Also,the tasks include internal complaints administration against their own staff,compliance withlocal laws, rules and regulations besides tackling all forms of disciplinary problems amongst staff.
M ost of the initiatives to counter corruption have been in place since the inception of the CeIO and CIP.
Hence to be a world player in eradiocating corruption,the fight must be an ongoing one and a fightwhich is never yielding or surrendering. If for a single instance, we are caught off guard, that willundoubtedly be the ultimate downfall against the fight. Since the benchmarking has already been set
with high standards of integrity, the guard and fight against corruption must be ongoing without fail174

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or faulter.

VIII. CHALLENGESM ACA,and the CIDC,being the training arm against corruption as far as the CeIO is concerned,has
to nurture the cooperation of all concerned in the battle against corruption. The battle against
corruption might be won today,tomorrow,the day after tomorrow,next week or the following,but thelong war against corruption is a never ending one which requires persistence,efficacy and determination from all parties,especially from the bureaucracy to the politicians until civil society to the very
grassroots.
Each and every individual, organisation or corporation has to make positive contributions if the
war against corruption is to move forward rhythmically and forcefully. The momentum or drive
against corruption has to encompass all levels of society if it is to be a winner. The war against
corruption is anything but near an end. The fight against corruption is never over. The push against
corruption to eradicate it is but a dream.The journey to minimize corruption has to be a holistic one
yet empowering professionals to combat it on uphill terrain.

IX. CONCLUSION
A total of 284 companies have signed the CIP in Malaysia as of September 2013.Along with the CIP,
these companies have also undergone the Certified Integrity Officerʼ
s course which has nurtured themwith the necessary competencies in integrity, compliance, ethics, responsibility, conduct, governanceand also honesty.As Ntim & Soobaroyenʼ
s findings reveal,“
on average,better governed corporationsare (statistically significantly)more likely to pursue a more socially responsible agenda”as measured
by disclosure about specific CSR initiatives.Thereby,the CIP is definitely a step forward in enhancing
the integrity of a corporation.
Bibligraphy
Books
1. Campos, J.E.,& Pradhan. S, 2007:The many faces of corruption, Washington DC:World Bank.
2. Haller, D & Shore, C, 2005:Corruption, London:Pluto Press.
3. Johnston, M, 2005: Syndromes of Corruption: Wealth, Power and Democracy, UK: Cambridge
University Press.
4. Klitgaard, R, Ronald Maclean Abaroa and H. Lindsey Parris, 2000: Corrupt Cities, ICP Press,
Washington D.C:World Bank Institute.
5. Klitgaard, R, 1990:Tropical Gangsters, USA:Perseus Books Group.
6. Lambsdorff, J,2007:The New Institutional Economics of Corruption and Reform Theory, Evidence
and Policy, UK:Cambridge University Press.
7. Rose-Ackerman, S, 1999:Corruption and Government, New York:Cambridge University Press.
8. Pope,J:Confronting Corruption: The Elements of a National Integrity System,TI Sourcebook,2000,
Berlin:Transparency International.
9. W. Chan Kim & Renee Mauborgne, 2005: Blue Ocean Strategy, USA: Harvard Business School
Publishing.
10.Wain, B, 2009:Malaysian Maverick Mahathir Mohamad in Turbulent Times, UK:Macmillan.
11.W. McGee, R., 2009:Corporate Governance in Developing Economies, USA:Springer

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Annual Publications
1. Corruption Perception Index 1995-2012:Berlin:Transparency International.
Articles1. Arvis, J.F. & Berenbeim, R.E. Fighting Corruption in East Asia 2003: Solutions from the Private
Sector, Washington, D.C:World Bank.
2. Argandona, A., Private-to-Private Corruption, 2003, M adrid:IESE Business School.
3. Freeman,R.E.& M cVea,J,2002:A Stakeholder Approach to Strategic Management,USA:Universityof Virginia.
4. Friedman, M, 1970:The Social Responsibility of Business is to increase its profits, USA:The New
York Times M agazine.
5. Horowitz, B, Negotiating with extortionist government functionaries, 2007 Ecuador:Trace International.
6. Horowitz, B, Bridge Ogres, Little Fishes and Positive Deviants, 2006 Ecuador:Diplomate Thesis.
7. Hunt,J & Laszlo,S,Bribery: Who pays, Who refuses, What are the payoffs?,2005,US:NBER working
paper series.
8. Jensen, M.C., Value maximixation, Stakeholder theory, and the Corporate Objective Function, 2001,
US:Harvard Business School and Dartsmouth College.
9. Larcker,D.F.& Tayan,B.,Models of Corporate Governance: Whoʼs the fairest of them all?,2008 US;
Stanford Graduate School of Business
Statutes/Directives
1. M alaysian Anti-Corruption Commission Act, 2009
2. M alaysian Anti-Corruption Commission website: http://www.sprm.gov.my/>.
3. Government of M alaysia Service Circular Number 6 of 2013 on formation of an Integrity Unit in all
government agencies.
4. Government of M alaysia as Prime Ministerʼs directive Number 1 of 2011 on Certified Integrity
Officer programme.

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EFFECTIVE MEASURES TO COMBAT AND PREVENTCORRUPTION IN THE UK AND THE CURRENT SITUATION ON
ENFORCEMENT OF THE BRIBERY ACT 2010David GreenI. OUTLINE OF LECTURES
A. Hand-outs
A:Lecture outline (this document)
B:Understanding Bribery and Corruption (slides)
C:The Bribery Act 2010 (slides)
D:SFO powers
E:The Bribery Act 2010 (commentary)
F:Deferred Prosecution Agreements (DPAs)(flow-chart)

II. LECTURE 1
A. General
Brief outline of the criminal justice system in England and Wales
The problem of fraud in the UK context
B. The SFO
Origins of the SFO:the Fraud Trials Committee (Roskill)1983
The Criminal Justice Act 1987:establishing the SFO
The Roskill model
The size and organisation of the SFO
SFO jurisdiction
SFO powers
The SFO and Mutual Legal Assistance (M LA)
SFO funding
Recent restatement of the SFOʼs mission and purpose

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Self-reporting of criminal activity to the SFO by corporates
Why investigations are lengthy
Framing charges
Examples of contemporary SFO investigations and prosecutions
C. The SFO and Other UK Agencies in Economic Crime
National Crime Agency
PoliceCrown Prosecution Service
Her M ajestyʼ
s Revenue and Customs (HM RC)
Financial Conduct Authority (FCA)
Office of Fair Trading (OFT)
Competition and Markets Authority
D. Practical Problems Facing the SFO in Investigation and Prosecution
obstructions in the way of obtaining evidence
electronic data:uploading and searchingexecution of SFO M LA requests abroad
the need to keep investigations and prosecutions focused
media attention
court delays

III. LECTURE 2
A. The Bribery Act 2010
Hand-outs C and D
Background to the Act
Legislation before the Bribery Act
Examples of cases before the Bribery Act
OECD criticisms
Distinctive features of the Bribery Act 2010
Act in force from 1/7/2011;not retrospective
S1 Active bribery

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S2 Passive bribery
S6 Bribery of foreign public officials
S7 Corporate liability for failure to prevent bribery
Statutory defence to an offence under S7Territorial application
Business entertainment
Facilitation payments
M inistry of Justice published Guidance
Joint DPP/DSFO published Guidance
Sentencing
SFO enforcement
B. Deferred Prosecution Agreements (DPAs)
What are DPAʼs?
When might they be used?
Hand-out F:DPA flow chart
DPA Application process
DPA compliance and oversight
DPA breach and variation
Key differences from US practice on DPAs
Corporate criminal liability in English law
C. Investigation, Prosecution and Confiscation
How information comes to the SFOIntelligence
Self-reporting
Whistle-blowing
Evaluation
Investigation by the SFO
Domestic documentary evidence
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Witness evidence
Prosecution and asset recovery

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SFO POWERS

I. S.2 CJA 1987 POWERSThe Criminal Justice Act 1987 provides powers to enable me and my staff to carry out
investigations more effectively. They are contained in s.2 of the Act.
These are wide-ranging powers exercisable only in respect of cases where I have decided tocommence an investigation into serious or complex fraud,bribery or corruption.The powers
can be exercised personally by me or by staff whom I have designated to exercise these powers
on my behalf.
I can also exercise these powers on behalf of an overseas authority where requested to do soby the Secretary of State but,again,only where it appears to me on reasonable grounds thatthe offence in respect of which I have been requested to obtain evidence involves serious orcomplex fraud.
S.2 of the Act enables me to require,by way of a written notice,any person being investigatedor any other person whom I have reason to believe has relevant information to either answer
questions or provide me with information with respect to any matter relevant to the investigation.
Importantly, I can require the production of specified documents that relate to the offence
under investigation ― this is the single greatest use of the power.It includes a power requiring
the person producing the documents to also provide an explanation in relation to any of them.
What powers of enforcement are there?Where a magistrate is satisfied that there are reasonable grounds for believing that:any person has failed to comply with an obligation to produce documents, or
it is not practicable to serve a notice;orthe service of a notice might seriously prejudice the investigation
he can issue a warrant authoring a police constable to enter and search premises and seize
relevant documents.
There are limits as to the use to which the SFO may put any statement that a person isrequired to give in response to a notice.We cannot rely on such statements in evidence unless
it is for a specific offence of providing a false or misleading statement or, in the course of aprosecution for some other offence,the accused makes a statement which is inconsistent withwhat he said in response to the notice.
We can,however,rely in evidence on documents which were already in existence at the time
we served the s.2 notice ― and, indeed, such material often forms the core of many of ourcases.
This distinction ― between being able to rely upon documents which already exist as opposed
to not being able to rely on the answers to questions which someone is required to provide ―is intended to give effect to the law against self-incrimination which, in its most basic form,
provides that a person accused of a criminal offence cannot be compelled to produce material
that may subsequently be used as evidence against him save and unless that material alreadyhas its own independent existence.
There are also express provisions protecting legally privileged material. In addition, special
protection is given to confidential banking material ― such material can only be obtained if
I personally authorise the making of a requirement (or, if I am unavailable, for example

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because I am overseas, an individual nominated by me does so).
Failure,without reasonable excuse,to comply with any requirement under a s.2 notice is itself
a criminal offence, punishable by way of up to six months imprisonment and /or a fine.
As noted already, making a false or misleading statement in response to a notice is also an
offence. The maximum punishment here is two years imprisonment and /or a fine.
Finally, there is also an offence of knowingly falsifying, concealing, destroying or otherwise
disposing of documents relevant to an investigation.This is considered a serious offence― themaximum penalty is seven years imprisonment and /or a fine.
These powers are an important tool in our armoury.In 2012-13 the SFO issued 402 s.2 notices
in relation to both our own domestic investigations and in support of overseas investigations.
As at the end of August this year, we have issued 200 such notices.
The great value of these powers is that they enable us to obtain important documentary
evidence that might not otherwise be easily available to us,right at the outset of an investigation. For example, early access to banking material is often a crucial aspect of our cases.
Banks,as you will appreciate,hold their clients information subject to a dutyofconfidentiality
and will ordinarily only release information if they are made subject to a court order. A s.2
notice,however,overcomes any legal duty of confidentiality that a bank has and so is a highly
efficient means of securing relevant evidence quickly.
As with any aspect of an investigation,focusing the request being made is critical.Asking,forexample,for the entire server of a particular institution is likely to result in the production of
millions of documents,all of which then have to be reviewed and many of which are likely tobe wholly irrelevant. Our experience is that time spent considering exactly what is required(often,where it is appropriate,with input from those upon whom the notice is to be served)istime well spent.
Finally, in July 2008, the Act was amended to enable me to use my s.2 powers at the ʻ
preinvestigativeʼstage of a case in relation to overseas bribery and corruption cases. This isbecause experience has taught us that it is often difficult to make an accurate assessment as
to whether it is worth accepting such cases for investigation without at least some assessment
ofthe underlying documentarymaterial and this amendment is therefore intended to enable me
to obtain such material even before I decide whether to accept a case for investigation or not.

II. OTHER POWERS
In addition to s.2 notices,the SFO has access to a wide range of others powers which are notunique to the SFO but which can be used by the police and other law enforcement agencies
generally. These include the following:
Powers under the Serious Crime Act 2007 to seek Serious Crime Prevention Orders ―where a person has been convicted of having committed a serious offence,the Crown
Court may make an order designed to protect the public by preventing,restricting or
disrupting his further involvement in serious crime (we can also apply to the High
Court in respect of cases where a person has not been convicted but the Court isnonetheless satisfied that a person has been involved in serious crime).
Powers under the Serious and Organised Crime and Police Act 2005 (SOCPA) ―these provide a legislative framework for those who wish to co-operate with theauthorities. M ain provisions are:s.71 (full immunity from prosecution),s.72 (an agreement not to use specified evidence against a person ― a socalled ʻ
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s.73 (written agreement in which a defendant agrees to assist an investigationor prosecution with a view to thereby obtaining a reduced sentence;ordinarily, this will require the accused to plead to certain offences and may also
require him to agree to giving evidence on behalf of the prosecution);and
s.74 (enables a prosecutor to refer a defendantʼs case back to the court for areview of sentence after conviction;this is used in cases where a defendantoffers assistance after he has already been sentenced for his own offending).
SOCPA also enables a court to make a Financial Reporting Order (s.76)wherever a
person is convicted of a relevant financial offence and the court is satisfied that therisk of the offender committing another such offence is “sufficiently high”to justify
the making of the order.The order requires the individual concerned to make regular
reporting of their financial affairs to the authorities for a specified period.
Covert powers under the Regulation of investigation Powers Act 2000 (RIPA)― thisprovides a legislative framework for a wide range of covert law enforcement techniques including intercepts (note that the product of domestic intercepts is inadmissible within UK criminal proceedings), the use of covert intelligence sources (i.e.
informants)and surveillance (two main types of surveillance are covered;general orʻ
directedʼsurveillance and ʻ
intrusiveʼsurveillance (e.g. surveillance within a personʼ
shome)that requires a higher level of authorisation and greater safeguards).
Powers under the Proceeds of Crime Act 2002 ― these cover a wide range of issues,
most of which are related to the preservation (pre-conviction) and the confiscationand subsequent enforcement (post-conviction) of a personʼ
s criminal benefit. Key
powers include:
Account monitoring orders (an order of a court which instructs a financial
institution to provide an investigator with information on the current activityof an account).
Restraint orders (an order of the Crown Court that prevents named individuals from dealing with any aspect of their assets without the authority of thecourt;the aim being to preserve assets in the event of a conviction)
Confiscation orders (an order of the Crown Court in which a convicted
defendant is ordered to pay over their ʻbenefitʼfrom specified criminal
conduct)
Production orders (an order of the Crown Court for a person or company toproduce specified material for the purpose of assisting certain types ofinvestigation, including any investigation into an offence of money laundering and any confiscation investigation)
Civil Recovery orders (an order of the High Court that specified property isdeemed to be ʻ
criminal propertyʼand that the value of that property is thus
to be paid to the State; usually used only as an alternative to criminal
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THE BRIBERY ACT 2010
1. Background leading up to the Bribery Act 2010
Recognition that, pre-Bribery Act, the UKʼs anti-bribery legislation was antiquated and inneed of modernisation
The legislation in force was, in some cases, more than a century old:
The Public Bodies Corrupt Practices Act 1889 (only applied to those working on local
public bodies (i.e. local government)and did not extend to Crown employees)
The Prevention of Corruption Act 19 06 (this was, and is, the main pre Bribery Act
offence;applies to all agents and any person who gives consideration to an agent)
The Prevention of Corruption Act 19 16 (extended the PCA 1906 to Crown employees
or employees of a public body)
The only previous change to our law had been contained within The Anti Terrorism, Crime& Security Act 2001:
This extended the previous legislation to all UK nationals who conduct businessoverseas
It was thus an extension of the existing law ― but not a full overhaul.
Became increasingly apparent that the UK needed a modern ʻ
fit for purposeʼanti-bribery
legislation
Pressure arose from the OECD for the UK to update its anti-corruption legislation:
E.g.in their 2008ʻ
Phase 2ʼreport1 into the UK,the OECDʼs Working Group on Bribery
noted that:“...the UKʼs continued failure to address deficiencies in its laws on bribery of foreign
public officials and on corporate liability for foreign bribery has hindered investigations.
The Working Group reiterates its previous 2003, 2005 and 2007 recommendations
that the UK enact new foreign bribery legislation at the earliest possible date.”(page4)
and on page 71 of the same report the Working Group concluded as follows:“
The Working Group is disappointed and seriously concerned with the unsatisfactory
implementation of the Convention by the UK ... and urges the UK to adopt appropriate
legislation as a matter of high priority.”
2. Famous cases of combating bribery of foreign public officials before the Bribery Act 2010 was
enactedRobert John Dougall ― Dougall was a former DePuy executive who pleaded guilty in April
2010 to his involvement in ￡4.5 million worth of corrupt payments to medical professionals
within the Greek healthcare system. He was sentenced to 12 months imprisonment.
Dougall was appointed Director of M arketing at DePuy International Limited in 1999.
He was responsible for developing business in Greece.DPI sold orthopaedic products;
in order to penetrate the Greek market, inducements and rewards were provided tosurgeons in return for the purchase of DPI products.
1See

http://www.oecd.org/daf/anti-bribery/anti-briberyconvention/41515077.pdf>.

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DPI used a local distributor, Medec S.A. which was owned and run by Nikolaos
Karagiannis.He was paid,in advance,a “commission”by DPI on all sales;a proportion of which was used to make the corrupt payments to surgeons in Greece.
These payments were made with the knowledge and oversight of Dougall.
Also worthy of note― Dougall was the first “co-operating defendant”in a major SFO
investigation.He entered into a s.73 written agreement with the SFO in June 2009 andprovided substantial assistance to the investigation.
In April 2011, the SFO obtained a civil recovery order against DPI to the value of￡4.829 million plus costs, representing the proceeds of crime for the period 1998 to2006.
Mabey & Johnson ― M abey& Johnson,an engineering firm,was the first corporate in the UK
to be prosecuted for overseas corruption offences.
The prosecution for corruption arose out of a self-report in which the company
disclosed evidence that it had sought to influence decision-makers in public contracts
in Jamaica and Ghana between 1993 and 2001.
In addition to the corruption offences,the company was also prosecuted for sanctions
offences relating to a breach of UN sanctions in 2001/02 as they applied to contracts
in the Iraq “Oil-for-food”programme.
The company pleaded guilty to these offences in July 2009. They were sentenced in
September 2009, paying a total fine of ￡3.5 million plus a ￡1.1 million confiscation
order, ￡1.4 million by way of reparations, prosecution costs of ￡350k and a further￡250k towards the cost of an independent SFO approved monitor who would review
their internal compliance programme.
Richard Alderman, the then Director, hailed the sentence as “
a landmark outcome”
and noted this was “the first conviction in this country of a company for overseas
corruption”.
Following the conviction, new management took over the company and introduced
new anti-bribery measures. The company continued to co-operate with the SFO and,in January 2012, agreed to the making of a civil recovery order in the High Court tothe value of ￡130k in recognition of sums it had received through share dividends
derived from contracts won through unlawful conduct.
Innospec ― Two senior Innospec executives have pleaded guilty to offences of conspiring to
make corrupt payments to individuals in Indonesia and Iraq to secure contracts for Innospec
Ltd for the supply of its products.
Paul Jennings,former CEO,pleaded guilty in June 2012 to two offences of conspiring
to corrupt in that he gave,or agreed to give,corrupt payments to public officials andother agents of the governments of Iraq and Indonesia between 2003 and 2008 as
inducements to secure, or rewards for having secured, contracts from those government for the supply of products by Innospec.
Another Innospec executive, Dr David Turner, former Global Sales and M arketing
Director, had pleaded guilty to similar offences in January 2012.
Sentencing has been adjourned pending the outcome of proceedings against two
further defendants, due to be tried in M arch 2014.
The company itself had pleaded guilty to offences of bribing employees of Pertamina(an Indonesian state owned refinery) and other government officials in Indonesia in
March 2010.The company was fined the sterling equivalent of$12.7 million as part ofa global settlement involving the UK and the US authorities.
Oxford Publishing ― In July 2012,Oxford Publishing Ltd.agreed to pay a ￡1.895 million civil
recovery order in recognition of sums it had received which were generated through unlawful
conduct related to UK subsidiaries incorporated in Tanzania and Kenya.
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Africa where it is principally involved in the publication of school textbooks.
In 2011, OUP became aware of possible irregular tendering practices involving its
education business in East Africa. As a result of an internal investigation, they
voluntarily disclosed to the SFO concerns in relation to contracts arising from tenders
which itʼs Kenyan and Tanzanian subsidiaries had entered into between 2007 and2010.
Following further work, supervised by the SFO, it was accepted by OUP that payments had been offered and made, directly and through agents,which were intended
to induce the recipients to award competitive tenders and /or publishing contracts forschoolbooks to both the Kenyan and Tanzanian subsidiaries.
In the light of the co-operation offered,it was decided that the public interest in thiscase was best met not byprosecuting but through the making ofa civil recoveryorder.
At the time of the order, I said “This settlement demonstrates that there are, inappropriate cases, clear and sensible solutions available to those who self-reportissues of this kind to the authorities”.
BAE Systems plc ― In December 2006, the then Director, Robert Wardle, decided to discontinue an investigation into the affairs of BAE Systems plc as far as they related to the Al
Yamamah defence contract with the government of Saudi Arabia. His decision was taken
following representations that had been made to both the Attorney General and the Director
concerning the need to safeguard national and international security.In reaching that decision,
no weight was given to commercial interests or the national economic interest.
3. Outline of provisions and distinctive features in the Bribery Act 2010
The Act came into force on 1 July 2011. It is not retrospective.
It repeals the offences outlined above in relation to conduct that post-dates the Act.
Creates a number of offences:s1 Bribery of another person (ʻactive briberyʼ
): committed where a person offers,
promises or gives a financial or other advantage to another person, intending to
induce them to perform improperly a relevant function or activity, or to reward a
person for such improper performance.
s2 Receiving a bribe (ʻpassive briberyʼ
):committed where a person requests,agrees toreceive or accepts a financial or other advantage intending that, in consequence, a
relevant function or activity should be performed improperly by themselves oranother.
s6 Bribery of foreign public officials:committed where a person in the act of intending
to obtain or retain a business advantage bribes a foreign public official with the intent
of influencing them.
s7 Corporate liability for failure to prevent bribery:this is the most radical innovation
within the Act.Under this provision,a ʻ
relevant commercial organisationʼis guilty of
an offence if any person associated with it bribes another person intending to obtainor retain a business advantage.
It is a defence for the organisation to show that it had ʻadequate proceduresʼ
in place to prevent such activity from taking place.
This offence applies to any organisation that conducts “part of their business”in the UK.
Territorial application ― if any part of the conduct involved in ss.1, 2 or 6 are committed in
the UK, then the UK courts have jurisdiction. Even if all the actions in question take placeabroad,the UK still has jurisdiction as long as the person performing them is a British nationalor resident in the UK or incorporated in the UK or has a “close connection”with the UK.
Two other changes made by the Act:

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The maximum sentence on conviction was increased from seven to ten years (plus anunlimited fine).
Removal of requirement for consent to be given by our Attorney General ― proceedings are now commenced personally by me as Director.
4. Current situation of enforcement of the Bribery Act 2010
The Act has now been in force for a little over two years
M uch has been made in the British media of the fact that there have been relatively few
prosecutions under the Act, including thus far only one case brought by the SFO
This is not surprising ― firstly, as noted, the Act only applies to conduct which occurs after
July 2011;secondly,these are cases which,by their very nature,tend to involve conduct donein secret which may not come to light until months or even years later and;thirdly,even once
corrupt activity is discovered,gathering and reviewing material sufficient to mount a successful prosecution can be a lengthy and time-consuming exercise.
At present,the SFO has around a dozen or so active investigations or prosecutions into cases
involving foreign public officials ― with several more in the pipeline. Of these, at least four
involve conduct that, if capable of proof, would fall under the Bribery Act.
Even with new legislation, these are complex cases that are often difficult to investigate andprosecute successfully. Key issues include:
Evidence of corrupt activity is ordinarily hidden, making it difficult to identify andrecover for the purposes of criminal proceedings;
Potential witnesses are often reluctant to co-operate with the authorities, meaningthat the documentary evidence becomes even more important in proving the case;
Where there is corrupt activity,this is rarely confined to just one or two instances ―often, our investigations unearth a whole system of corruption, often spanning
multiple countries;
This can mean that we need to make some tough choices about where to best focus
our resources in order to ensure that we pursue a focused and manageable case;
It also means that we are very much dependent upon assistance from other jurisdictions to secure admissible evidence ― not all of whom have a fully developed system
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Bribery Act 2010
M inistry of Justice guidance on the Bribery Act 2010https://www.justice.gov.uk/legislation/bribery>
Bribery Act 2010: Joint Prosecution Guidance of the Director of the Serious Fraud Office and the
Director of Public Prosecutions
http://www.sfo.gov.uk/media/167348/bribery act 2010 joint prosecution guidance of the directorof the serious fraud office and the director of public prosecutions.pdf>
Guidance on Corporate Prosecutions:Joint Prosecution Guidance of the Director of the Serious Fraud
Office and the Director of Public Prosecutions
http://www.sfo.gov.uk/media/65217/joint guidance on corporate prosecutions.pdf>
Deferred Prosecution Agreements
Draft Deferred Prosecution Agreement Code of Practice(“
DPA Code”)issued by the Director of Public
Prosecutions and Director of the Serious Fraud Office
http://www.sfo.gov.uk/media/256647/dpa%20code%20consultation%20final%20approved.docx>

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PARTICIPANTSʼPAPERSSTUDY ON THE ALGERIAN ANTI-CORRUPTION LAW
Touti FayçalI. INTRODUCTION
Algeria has sought like the rest of the world to address the phenomenon of corruption, convincedof the importance of this to try to achieve economic and social development and the consolidation of
the rule of law,and also the principles of social justice in the context of transparency and clarity.This
has been embodied through the law No. 06/01 of February 20, 2006 on the prevention and combatingof corruption, and through the ratification of the United Nations Convention against Corruption of
October 31, 2003, ratified by Presidential Decree No. 04/128 of April 19, 2004, with reservations. Thislaw aims mainly as stated in the first article to:
1. Support measures for preventing and fighting corruption
2. Promoting integrity, responsibility and transparency in the public and private sectors
3. Facilitate and support international cooperation and technical assistance to prevent and fightcorruption, including asset recovery.

II. DEFINITIONS AND TERMS
It includes several anti-corruption laws and definitions of various terms, including: corruption,
public officials, foreign public officials, confiscation and controlled delivery.
A. Corruption
Corruption includes all the crimes set forth in Section IV of this Act, which are:bribery of public
officials, unjustified concessions in the field of public procurement, bribery in public transactions,bribery of foreign public officials and officials of public international organizations,misappropriationof property by a public official and use of it illegally,treachery,exemption,illegal reduction of taxes
and fees, influence peddling, abuse of function, conflicts of interest, taking illegal benefits, failure to
declare or false statement of property, illicit enrichment, receiving gifts, hidden funding of politicalparties,taking illegal benefits,bribery in the private sector,misappropriation ofpropertyin the private
sector,the laundering of proceeds of crime,concealment,obstructing the smooth functioning of justice,
the protection of witnesses,experts,victims and whistleblowers,abuse of reporting and non-reportingof offences.
B. Public Officer
A public officer is any person who holds an administrative legislative,executive,judicial mandate,or at a popular locally elected assembly, whether elected or nominated, as permanent or temporary,whether paid or not,and regardless of their hierarchical level or seniority. The term also includes anyother person holding a function or mandate,even temporary,paid or unpaid,who contributes as such,in the service ofthe public organism or public enterprise,or anyother companyin which the State owns
all or part of its capital, or any other company that provides a public service, or any other person
defined as a public officer or who is assimilated in accordance with current legislation or regulations.

Examining M agistrate, Chief Court-Ain Defla Tribunal, M inistry of Justice, Algeria.

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III. M EASURES TO PREVENT CORRUPTION IN THE PUBLIC SECTOR
A number of measures must be taken into account in the public sector to combat corruption;theseare most important when dealing with property and in the field of public procurements.1
A. Employment
Several criteria and principles must be taken into account when recruiting in the public sector:
the principle of efficiency,transparencyand objective criteria such as merit,equityand ability.
appropriate procedures to select and train persons called to occupypublic positions consideredespecially exposed to corruption.
adequate treatment and adequate compensation.
programme development of education and adequate training to enable public officers to fulfil
their duties in a fair, honourable and proper manner and make them expect to benefit from
specialized training to sensitize them to risks of corruption.
B. Property Statement
The anti-corruption law devoted an important chapter to the property statement to ensure transparency in order to give the state an opportunity to discover signs of corruption.This is an obligation on
public officers, and this law defines entities that are committed in front of each category of public
servants to make such declarations. This liability, which requires public officers property statement
submission during the month following the date of his inauguration in the job or the beginning of hiselectoral term,and he or she must renew this statement periodically.The financial disclosure of public
officers includes real estate and chattels in Algeria and abroad, and the law identified the body thateach employee must repont to,according to his or her rank,starting from the President ofthe Republic.
The law also urged the elected bodies and public institutions to promote economic integrity andhonesty of the officers by adopting codes and rules of conduct.
C. Public Procurement Order
The conclusion of public procurement is subject to specific rules due to the importance of thesetransactions to the public and private sectors and the national economy in general. The process issubject to several criteria:
dissemination of information concerning the procedures for public procurement orders
the prior establishment of the conditions of participation, selection objectives and precise
decision-making criteria concerning public procurement orders
the exercise of any means of redress

IV. MEASURES TO PREVENT CORRUPTION IN THE PRIVATE SECTOR
A. Principles for Fighting Corruption
There are several measures taken to prevent the involvement of the private sector in corruption,and they are:strengthening cooperation between the services of detection and repression and relevant
private entities.
promoting the development of standards and procedures designed to safeguard the integrity of
relevant private entities,including codes of conduct to ensure that companies and all relevant
professions operate in a fair, honourable and proper way to prevent conflicts of interest and1Penal Code of Algeria.

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to encourage the application of good commercial practices between companies and in thecontractual relations with the state.
promoting transparency between private entities
prevention of improper use of procedure regulating private entities.
implementation of internal audits of private companies
B. Accounting Standards
These standards are based primarily on the prevention of several incubator acts of corruption,and
they are:the establishment of off-book accounts, crecords and transactions
identifieation of the off-book or insufficiently identified operations
identifying or liabilities which have not been correctly recorded

V. CIVIL SOCIETY PARTICIPATION AND COOPERATION OF PUBLIC ANDPRIVATE INSTITUTIONS
The participation of civil society in the prevention of corruption plays an active role in reducing the
growth of this negative phenomenon,by adopting transparency in decision-making and enhancing theparticipation of citizens in public affairs,and the preparation of mentoring programmes and awarenessthrough the public and private media,and through popular channels organized in the form of education
and awareness of non-governmental organizations for youth and adults, and also by holding training
courses.
In fact, despite the tireless efforts made by the Algerian state in order to reduce and combat thephenomenon of corruption, and the recruitment of security, judicial and financial institutions, toamputate the roots of this phenomenon, Algerian society has not yet achieved giant strides in consolidating the idea of social participation,whether by individuals,non-organized groups or organizedgroups such as civil society associations or non-governmental organizations to address this phenomenon.
And by working in the field of justice,this role is often limited to the form of letters or faxes signed
anonymously, and this is because either the informants fear reprisals from corrupt actors or thesemessages are submitted for revenge.
For the financial institutions of public or private banks or postal centres where money is transferred, their main role is to detect money laundering through monitoring of regular and electronic bankaccounts or monitoring suspicious movements of funds;as a result it is not available question because,on the one hand,it is complex and requires approval from the relevant judicial authorities such as the
public prosecutor or the investigating judge;on the other hand,it interferes with privacyand individual
freedoms protected by the law, Constitution and international conventions in this area.

VI. THE NATIONAL BODY FOR THE PREVENTION AND FIGHTINGAGAINST CORRUPTIONThis body is an independent administrative authority that has legal personality and financial
independence, made by the President of the Republic, and it is responsible for the prevention andfighting against corruption. It is working on the implementation of the national strategy in this areaand has its own legal system and specific tasks.
A. The Legal System of the Body
The body is an independent administrative authority with a legal personality and financial auton-

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omy. The autonomy of the body is guaranteed in particular by taking the following measures:the swearing in of members and officers of the body empowered to access the personal data
and, in general, any confidential information before installation to their duties. The form ofoath is set by regulation.
staffing of the body in necessary human and material resources to accomplish these tasks.
adequate and high level training of personal within the body.
safety and protection of members and officers of the body against any form of pressure or
intimidation,threat,insult or attack of any nature whatsoever which they may be the subject
during or in connection of the performance of their duties.
B. M issions of the Body
The members are required to:propose a comprehensive policy for the prevention of corruption embodied in the principles ofrule of law and reflecting the integrity,the transparency and responsibility in management ofpublic affairs and public property;
provide advice for the prevention of corruption to any person or public or private organization
and recommend measures,including legislative and regulatory developments and steps for theprevention of corruption and to cooperate with the public and private sectors in the development of the rules of conduct;develop programmes for education and citizen awareness about the harmful effects of corruption;
to collect, centralize and use any information that can be used to detect and prevent corruption, including research on legislation, regulations, procedures, and administrative practices,
the factors of corruption in order to provide recommendations designed for their elimination;
periodically evaluate relevant legal instruments and administrative measures on the subject todetermine their effectiveness in the field of prevention and the fight against corruption;
to collect periodically, respecting Article 6, the declaration of assets of public officers, toexamine and use the information they contain, and to ensure their preservation;
to use the public prosecutor to gather evidence and to carry out investigations on corruption;
to ensure the coordination and monitoring of activities and actions in the field based on
periodic and regular reports with statistics and analysis relating to the field of prevention andthe fight against corruption which are addressed bythe sectors and the participants concerned;
to ensure the strengthening of inter-sectoral coordination and the development of cooperation
with entities in fighting against corruption, both at the national and international levels;
generate any evaluation research of the actions undertaken in the field of prevention and thefight against corruption.
C. The Relationship between the Body and the Judicial Authority
When the body reached to events that may constitute a breach of the criminal law, the matter isreferred to the Minister of Justice and Keeper of the Seals,which makes use of an experienced attorney
general to commence public action in movement, if appropriate.
Corruption cases are initiated at the level of the judicial authorities, as the regular criminal cases

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are initiated,through the same procedures and degrees of litigation applicable in the Algerian judicial
system. Thus, there are no special or exceptional rules on corruption issues.
Legal persons have penal responsibilityfor the crimes stipulated in Article 53 ofthe Anti-Corruption
Act. Some of the special investigative techniques adopted in the anti-corruption law are controlled
delivery, electronic surveillance and intrusion with permission from the judicial authorities. Any
contract or transaction,privilege or license obtained by corruption should be declared null and void by
the judicial authorities. In the end, all members and staff of the body are committed to protecting
professional secrets, and they must report annually to the President on an assessment of its activities
and deficiencies and suggestions they see useful to fight against corruption.

VI. INTERNATIONAL COOPERATION IN COMBATING CORRUPTIONInternational cooperation in fighting corruption is mainly associated with the presence of international agreements between Algeria and other states, and is governed by international principles suchas the principle of reciprocity, and this cooperation is available with the conventionʼ
s parties, in thefield of investigations and prosecutions and judicial proceedings
A. Prevention, Detection and Transfer of Proceeds of Crime
In order to detect financial transactions related to corruption, and without prejudice to the legal
provisions relating to money laundering and terrorist financing, banks and non-banking financial
institutions shall, in accordance with the regulations:comply with data concerning persons or entities on the accounts of what financial institutions
should exercise greater oversight, types of accounts and transactions to which to pay attention, as well as measures for the establishment and maintenance of such accounts and therecording of transactions.
take into account the information provided to them as part of their relationship with foreignauthorities in particular regarding the identity of persons or entities that they will strictly
monitor the accounts;transaction that is recorded,keep adequate records of accounts and transactions involving thepersons mentioned in the first and second paragraphs of Article 58 of the anti-corruption law.
B. Relations with Banks and Financial Institutions
In order to prevent and detect transfers of proceeds of corruption, banks which have no physicalpresence and are not affiliated with a regulated financial group will not be allowed to settle in Algeria.
Banks and financial institutions operating in Algeria are not allowed to have relationships with foreign
financial institutions that accept their accounts to be used by banks that do not have physical presence
and that are not affiliated to a financial group regulated.
C. M easures for Direct Recovery of Property
Algerian courts are competent to know the committed civil action by the States parties to theConvention with a view to know the existence of a right of ownership of property acquired subsequent
to the corruption. The court seized of a proceeding accordance with article 62 of the anti-corruption
law, may order persons convicted of corruption to pay civil damages to the applicant state for thedamage that has been caused.In all cases where a confiscation order may be imposed,the court shalltake necessary measures to protect the legitimate owner claimed by another State party to theConvention.
D. Recovery of Property through International Cooperation for Purposes of Confiscation
Foreign judicial decisions ordering the confiscation of property acquired through an offence under
the anti-corruption law, or means for its commission, shall be enforceable in national territory inaccordance with established rules and procedures. By speaking, under the legislation, an offence ofmoney laundering or such other offence falling within its competence, the seized court may order theconfiscation of foreign goods acquired through one of the offences under the anti-corruption law, or

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used for their commission. Confiscation of property referred to in the anti-corruption law is declared
even in the absence of a criminal conviction due to the extinction of public policy or for some otherreason.
1. Requests for International Cooperation for the Purpose of Confiscation
As well as the documentation provided with the information contained in the requests for judicial
cooperation, according to bilateral and multilateral agreements, there must also be:a statement of the facts relied upon by the requesting State and a description of the actions
required and a copy of the order;
a description of property to be confiscated, its location and value
a statement of information and facts that defines the scope of the implementation and that
authorization of confiscation measures has been taken to notice the States Parties.
2. M easures of International Cooperation for Confiscation
The request of a State Party to the Convention must be directed to the M inister of Justice for theconfiscation of proceeds of crime located with in the national territory, then turned to the competentpublic prosecutor,and the public prosecutor sends it to the competent court;the judgement of the Court
shall be subject to appeal, and the appeal,and the provisions are implemented with the knowledge of
the Public Prosecution.
Information on proceeds of offences established in accordance with law against corruption may,without prior request,be given to a State Party to the Convention,where such information might assist
the receiving State to initiate or conduct an investigation,prosecution or judicial proceedings or mightlead to the presentation by the State of a request for confiscation.When a confiscation order is made,the disposal of confiscated property is under the relevant treaties and legislation.

VII. THE EFFECTS OF CORRUPTION
Corruption has strong effects on all fields in the country,and corruption has led to weak politicalinstitutions of the country and encouraged the birth of the soft state,which is characterized by a lackof social discipline that leads to wilful neglect of rules and directives by public officers and civil
servants. The main qualities of a soft state are the high dependence on outside sources,disobedienceof the public authority weakened system of rights and obligations over centralized government,rigid
bureaucracies unable to adjust to change, which explains clearly the strong relationship between
developed countries and the colonial history on the one hand and on the other hand their relationshipwith their colonial past which left a deep connection with developed countries. This makes themassociates with corruption. Lack of social discipline,combined with the monopoly position of government and a confusing network of regulations has enabled powerful individuals and business groups.2

VIII. FIGHT AGAINST CORRUPTION
Considering that corruption is a global phenomenon and widespread around the world, it requires
great efforts in order to fight corruption and to keep it from spreading to different regions.There aremany measures we can take in order to decrease corruption.3
Parliaments control function (legislation authority)
Private institutions

2David J. Gould and Jose A. AmeroReyes, The Effects of Corruption on Administrative Performance, 20, available at

http://www-wds.worldbank.org/servlet/WDSContentServer/IW3P/IB/1983/10/01/000009265 3980716172221/Rendered/
PDF/multi page.pdf>.
3Memorandum of Cooperation with the National Agency for Integrity lssues of Romanc Podgorica, 21 April 2008.

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Individual effort and organization
The application of laws by courts
M edia should work together with government hand in hand
Exchanging experiences between governments and organizations
Improve the living conditions of citizens as well as public officers
Create strong central mechanisms at the level of administration, different institutions andcompanies

IX. CONCLUSION
To conclude we can say that corruption in general is a national and international problem demanding efforts of countries, institutions and individuals; in addition, it requires consultation between
countries and organizations. Thus, we find a radical solution and impose a roadmap to overcome
challenges.
Since the accession of Algeria to the United Nations Convention against Corruption,adopted by theGeneral Assembly of the United Nations in New York on October 31,2003 ratified by Algeria on April
19, 2004 and the issuance of Law No. 06/01 dated February 20, 2006 on the prevention of corruption,
Algeria witnessed a remarkable development at the level of legal mechanisms and material means
adopted to address all types of corruption.Nevertheless,Algeria must exert more efforts,in particular,
to mobilize popular energies to confront this phenomenon.

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CRIM INAL JUSTICE RESPONSE TO CORRUPTION
Mohammad Saidur Rahman and Md Golam Rabbani

I. GENERATING LEADS
A. 24-Hour Telephone Hotlines for Public Complaints and Reports
Sections 17(c) and (k) facilitated receiving complaints. The Anti Corruption Commission(ACC)has an arrangement receiving complaints over telephones for 24 hours.
B. Information about Suspected Transaction Reports (STR)from the Bangladesh Financial Intelligence Unit (BFIU)
The reporting organization under the M oney Laundering Prevention Act (M LPA) 2012 includes
concepts of unusual transactions and suspicious transactions. Section 2(n) of MLPA 2012 defines“suspicious financial transactions”as:
A transaction that substantially deviates from the usual norm by which that transaction isusually conducted, orThere is reasonable cause to believe that the transaction is related to any proceeds of crime.
The M LPA is inconsistent on the meaning of “
suspicious transaction”as one definition relates to“any proceeds of crime”, while another ties the concept to be “
related to money laundering”. Section
2 of the M LPA defines a suspicious transaction as when “there is reasonable cause to believe that thetransaction is related to any proceeds of crime”;section 25(1)(d)of the M LPA states that a reportingorganization shall “inform proactively and immediately Bangladesh Bank,［of suspicious,unusual,or
doubtful facts］or transactions likely to be related to money laundering”.
The obligation to report terrorist-financing-related transactions is included in section 15 of the Anti
Terrorism Act (ATA)2009 and applies to banks,insurance companies,money changers and remittancecompanies. The provision states: Bangladesh Bank shall have the power and authority to takenecessary measures to prevent and detect transactions intended to commit offences under this Act
through any banking channel, and for that matter is empowered and authorized to call for reports
about suspicious transactions from a bank and shall keep such report confidential if law does not allow
disclosure.
The Anti-Money-Laundering (AM L) Circular provides a direct obligation on banks and financial
institutions if there is any reasonable ground to suspect that a transaction or an attempted transaction
has a connection to financing terrorist activities,and as per ATA 2009 shall have to be reported,withcomments of the branch compliance officer,to the BFIU no later than three days from the date of thereceipt from the branch.The obligations of sending STR on terrorist financing is indirectly laid out inlaw with supporting details set out in other enforceable means.In the case of the Terrorism Financing(TF)-related STR obligation on banks in the ATA 2009 and its extension to non-bank financial
institutions in the Circular,the limitations with the scope of the TF offence in the ATA undermines therange of TF that would form the basis for suspicion.This results in a gap regarding suspicion of funds
provided for a terrorist organizations or an individual terrorist.Financial institutions are required toreport to the BFIU when theysuspect or have reasonable grounds to suspect that funds are the proceedsof criminal acts that would constitute predicate offences for money laundering.
Director, Anti-Corruption Commission, Bangladesh.
Director, Legal and Prosecution Unit, Anti-Corruption Unit, Bangladesh.

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C. Protection of Whistleblowers
The Govt. enacted Public Interest Information Disclosure Act (Provide Protection), 2011; thislegislation protects the witnesses and informants and describes the procedure elaborately.

II. ACQUIRING AND ANALYZING OBJECTIVE EVIDENCE
A. Documents and Bank Records
Sections 19 and 23 of the ACC Act 2004 empower authorities to compel a suspect or anyother person
to submit a statement of assets of liabilities and a suspect or any other person who may be holding
property on his or her behalf to submit a statement of assets and liabilities and to furnish any otherinformation;summons witnesses, interrogate them under oath and take evidence under oath;request
discovery of any document;call for public records; issue warrants for examination of documents;
require any person to furnish information in matters relating to any inquiry or investigation; call for
any information from the government or any authority or organization under the government;and
require the co-operation of the government or any authority or organization under the government in
the manner determined by the ACC.
Section 23,24 and 25 of MLPA 2012 provided BFIU as a unit of Bangladesh Bank,and Bangladesh
Bank is able to order schedule banks, financial institutions and reporting organizations to freeze
accounts to allow a period for investigation where it is suspected that a transaction involves proceedsof crime. Under section 24(4), the BFIU is able to seek information regarding suspected money
laundering from another country on the basis of “any contract signed or arrangements”. On demand
from Bangladesh Bank,reporting institutions must provide(in the case of open accounts)identification
information and (in the case of closed accounts)previous transaction records.
B. Data Stored on Personal Computers or Cell Phones and Videotapes of Security Cameras
Data collected from computers or cell phones cannot be used as evidence under the existing law ofevidence. The videotapes also cannot be used under the present Evidence Act 1872 but our Court ofRecord,i.e.,the High Court Division of the Supreme Court ofBangladesh,has given a sanction in a casedecided by it.
C. Handwriting Analysis
Sections 45, 46 and 47 of the Evidence Act of 1872 facilitated the handwriting expert opinion as
evidence to prove the case before the Court.The Criminal Investigation Department (CID),a unit of the
Police, is assigned to give reports on handwriting.

III. ACQUIRING SUSPECTS
A. Electronic Surveillance
In Bangladesh, recent legislation has expanded the scope of electronic surveillance:(i) Money Laundering Prevention Act (M LPA)2012,(ii) Anti Terrorism Act (ATA)2009,(iii) The Code of Criminal Procedure (Cr PC)1898 (as amendment up to 2009),(iv) The Public Interest Related Information Disclosure (Protection)Act 2011 (The Whistle Blower
Protection Act), and(v) The M utual Legal Assistance Act, 2012 (MLAA).
The provisions of these laws enhance the scope of acquiring electronic evidence of suspected
persons. Nevertheless, the concerned ministry, i.e., M inistry of law, justice and Parliamentary affairs
are working for relevant amendments of the Evidence Act 1872,Anti Corruption Commission Act 2004
and the Code of Criminal Procedure 1898,with a view to use evidence collected electronicallyto ensurejustice.

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B. Undercover Operations
The Law enforcing agencies,e.g.,the Police Department,Rapid Action Battalion (RAB),National
Security Intelligence (NSI), Detective Branch (DB), Director General Forces Intelligence (DGFI),
Criminal Investigation Department (CID), Special Branch (SB) have frequent undercover operation
activities in Bangladesh. The Anti Corruption Commission has a team, formed in the year 2009, to
operate undercover operations.
C. Immunity
Section 31 ofACC Act 2004 indemnified the actions performed in good faith.Ifanyperson is affected
or is likely to be affected by any action taken in good faith in the discharge of duties under this Act,
then neither the commission nor any commissioner,officer or employee thereof shall be liable to action
under civil or penal codes or otherwise.Moreover,the other members of law enforcment agencies areindemnified for actions performed in good faith in general law that is under the Penal Code, 1860.
D. Plea Bargaining
In our legal system there is no scope for plea bargaining. The M inistry of Law Justice andParliamentary Affairs (M OLJPA) (The Drafting Wing) is working to develop the scope of plea
bargaining through amendment of relevant law.
E. Protection of Witnesses
Section 5 of the Public Interest Related Information Disclosure (Protection)Act, 2011 protects thewitnesses,experts,victims,reporting persons and whistleblowers.Section 9 and 10 provides the penalty
of violating those provisions. (M aximum 5 yrs and minimum 2 yrs with or without fine)F. Compulsory Systems to Testify under Subpoena
Section 19 and 20 of ACC Act 2004 empowered the Commission,inquiring or investigating officers
to obtain the testimony of suspects and witnesses under compulsory subpoena.
G. Penalties for Perjury and Obstruction of Justice
Chapter X and XI (sec 172― 229)of the Penal Code 1860,protects public servants and public justice.
These provisions described the nature of offences of perjury, contemptuous offences against lawfulauthority of public servants and offences against public justice and the penalties for those offences.
Section 13 of Contempt of Court Act, 2013 provides penalties for contempt of court.

IV. IDENTIFICATION, TRACING, FREEZING AND CONFISCATION OF
PROCEEDS AND RETURN AND DISPOSAL OF CONFISCATED ASSETS
A. Identification and Tracing of Property
1. The ACC Act, 2004
The ACC Act confers strong powers upon the ACC for the identification and tracing of property incorruption investigations. These include powers under sections 19 and 23 to compel a suspect or any
other person who may be holding property on his or her behalf to submit a statement of assets andliabilities and to furnish any other information;summon witnesses, interrogate them under oath andtake evidence under oath:
Request discovery of any document
Call for public records
Issue warrants for examination of documents
Require any person to furnish information in matters relating to any inquiry or investigation
Call for any information from the government or any authority or organization under thegovernment
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government in the manner determined by the ACC.
B. The M LPA, 2012 Confers Only the Following Investigative Powers
Under section 24,BFIU is working as a unit of Bangladesh Bank (The Central Bank ofBangladesh).
Under section 23(1)(c), Bangladesh Bank is able to order schedule banks, financial institutions andreporting organizations to freeze accounts to allow a period for investigation where it is suspected thata transaction involves proceeds of crime.Under section 23(2),Bangladesh Bank shall share information
with the designated investigative agency.Under section 24(2)the Government organization,semi govt.
organization,autonomous body on their own motion will inform BFIU to fulfill the object of the Act.
Under section 24(3),BFIU will inform the law enforcing agency about M L and TF.Under section 24(4),the BFIU is able to seek information regarding suspected money laundering from another country on
the basis of“
any contract signed or arrangements”.Under section 25(1)(c),on demand from Bangladesh
Bank,reporting institutions must provide (in the case of open accounts)identification information and(in the case of closed accounts)previous transaction records.
C. Relevant Provisions within the CrPC, 1898
The power to summon persons to produce documents or things which are considered necessary
for investigation or prosecution (but not documents or things in the custody of banks orbankers unless it is for the purpose of investigating certain offences such as theft, breach oftrust, fraud and forgery:section 94(1)The power to search pursuant to a search warrant:section 96(1)The power to search premises suspected of containing stolen property, forged documents orcounterfeit material:section 165
The power to compel the attendance of witnesses and to examine them:sections 160 and 161.
D. Confiscation, Freezing and Seizing of Proceeds of Crime
Bangladesh has legislation for the confiscation, freezing and seizing of criminal proceeds andinstruments. Various procedures are available under the following Acts:
The M oney Laundering and Prevention Act, 2012
The Anti Terrorism Act, 2009
The Code of Criminal Procedure (CrPC), 1898
The Anti-Corruption Act, 2004.
Collectively the relevant provisions within the above acts provide a basis for confiscation andfreezing action in relation to money laundering (ML), terrorist financing (TF) and other serious
offences.
E. The Anti Corruption Act
Forfeiture measures in the ACC Act,2004 are found at section 27(1),as follows:Ifthere are sufficientand reasonable grounds to believe that a person in his/her own name or any other person on his/herbehalf is in possession and has obtained ownership of moveable or immoveable property throughdishonest means and the property is not consistent with the known sources of his/her income and if he/she fails to submit to the court during trial a satisfactoryexplanation for possessing that property,thenthat person shall be sentenced to a prison term ranging from a minimum of 3 years to a maximum of
10 years,and these properties shall be forfeited.The ACC relies upon the general power conferred upon
it by section 19(1)(f),to take action in relation to any other matter required for realizing and fulfillingthe aims and objectives of the ACC Act, 2004.

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F. The M oney Laundering and Prevention Act
Section 17(1)of the MLPA appears to permit forfeiture of both proceeds and instruments of money
laundering, since it applies to property “involved with the offence”. As noted “property”is broadly
defined within the M LPA.In addition section 17(1)specifically applies to property within and outside
Bangladesh. Section 17(3) authorizes forfeiture of indirect proceeds to a limited degree, in that it
permits forfeiture of property which has been converted and which is in that way indirect proceeds ofcrime.Section 14(1)of MLPA 2012 empowers the court,upon application of the investigating organization, to make an order for freezing or attachment of property wherever situated within or outside
Bangladesh in which the State has interest under this Act.The MLPA also empowers the Bangladesh
Bank to issue orders to banks and financial institutions to suspend a transaction or freeze an account“where Bangladesh Bank has reasonable grounds to suspect that the transaction involves proceeds ofcrime”.
G. The Criminal Procedure Code (CrPC)The CrPC contains a general provision for forfeiture of property upon conclusion of an inquiry or
investigation. Section 517(1)is as follows:
When an inquiry or a trial in any Criminal Court is concluded,the Court may make such orderas it thinks fit for the disposal by destruction,confiscation or delivery to any person claiming to
be entitled to possession thereof or otherwise of any property or document produced before it orin its custody or regarding which any offence appears to have been committed or which has beenused for the commission of any offence.
It is clear from the terms of section 517 that both proceeds and instruments ofcrime can be forfeited,as well as property of corresponding value.A forfeiture order pursuant to section 517 of the CrPC canapply to property held in the names of third parties, as well as to the indirect proceeds of crime.
Provisional measures include freezing and or seizing.
The CrPC confers a power upon police officers to seize property pursuant to section 98. However
the context indicates that the power is restricted to seizure of physical objects. The CrPC does notcontain any provisions for freezing of property.
H. Initial Freezing or Seizing Application to Be Made Ex Parte or without Prior Notice
The M LPA is silent as to whether the initial freezing application under section 14(1)may be madeex parte or without prior notice.One of the grounds upon which a freezing order can be made,is that
there is a substantial likelihood the property will become unavailable before the conclusion of thecriminal proceedings (refer section 14(2)(d)), suggesting that the initial application is intended to bemade without notice.
The M LPA 2012:
Sections 14(3), 17(4) and 18 make provision for bona fide third parties to seek return ofproperty which is liable to forfeiture.
Section 517(4) of the CrPC enables a person to claim entitlement to property which is subject toforfeiture.Neither the MLPA and the ACC Act,nor the CrPC contains any provisions to take steps toprevent or avoid actions.
I. ATA 2009
Section 36 makes provision for bona fide third parties to seek return of property which is liable toforfeiture. Any person “aggrieved”by an order for forfeiture may lodge an appeal in the High Court
against the forfeiture decision:section 37(1).In case of acquittal confiscated property will be returned,
or if not possible to return the value of property will be returned including reasonable interest of thevalue, according to Section 37(2).

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V. PREVENTION
A. Prevention Legislation
Relevant legislation includes the ACC Act,2004;the ACC Rules,2007;Prevention of Corruption Act,
1947 (which was the first of its kind in South Asia);the Penal Code, 1860;the M LPA, 2012;the ATA,
2009;Public Procurement Act, 2006;Public Procurement Rules, 2008;Government Servant (Conduct)
Rules,1979;Government Servant (Discipline and Appeal)Rules,1985;the Competition Act,2012.Theselaws contain various provisions to prevent, punish and investigate acts of corruption.
B. Procurement M anagement
The Public Procurement Act (PPA), 2006 came into force on 31 January 2008 along with the Public
Procurement Rules (PPR), 2008 which consolidated the whole regime. PPR, 2008 consolidated thelessons learned under PPR, 2003 moving one step forward with the aim of enhancing the capacity ofthe stakeholders. Moreover, PPR, 2008 criminalizes corruption in procurement processes by public
officials and other relevant parties as a means to address some of the existing maladies.Section 3 of
the PPA, 2006 provides that the act will extend to the whole of Bangladesh and shall apply to
procurement of goods,works or services by any procuring entity(including registered company)using
public funds and procurement by any government, semi-government or any statutory body. Further,
PPA, 2008 has been amended by the Public Procurement (Amendment) Ordinance, 2007 adding theprovision to the scope and application of the PPA, 2006 in relation to procurement in foreign aided
projects providing that the provisions of the act will be applicable in such cases unless there is any
thing contrary in the loan,credit or grant agreement with a development partner or a foreign state or
an organization. The Government also approved the implementation of the “Public Procurement
Reform Project”(PPRP) with WB assistance for improving governance in public procurement. A
Central Procurement Technical Unit (CPTU)within the IMED was established under the M inistry ofPlanning, which is in charge of monitoring the procurement process. The CPTU assists procuring
entities in implementing the act and rules and monitors the functioning of the public procurement
system. Through its website the CPTU provides information on procurement laws,tender invitationsof public entities of certain threshold values of procurement and its monitoring activities. Other
components of the project include implementation of public procurement reforms and improvement ofprocurement management capacity. The PPR, 2008 (rules 13-18, 47-49, 56-60) has specified the basic
procurement guidelines, including public accessibility of tendering rules, eligibility and nondiscrimination criteria regarding the selection of tender, and the required qualifications of tenderers.
Furthermore, section 40 of the act and rule 90 (through rules 61, 62) state that an open nationaltendering system is the preferred system for procurements in the public sector.These rules also include
provisions for the organization of any public procurement,including policy formulation,coordination,and monitoring of the procurement procedure.A detailed legal framework for complaints and appeals
to ensure legal recourse and remedies incorporates both administrative and independent review
mechanisms (rules 56-60). The PPR, 2008 also provides detailed guidelines for international procurement (rules 83-87). In addition PPR, 2008 requires the establishment of a Tender Opening Committee(TOC) and Tender Evaluation Committee (TEC)/Proposal Evaluation Committee (PEC) for goods,
works and services procurement. TECs are in charge of evaluating bids and are required to furnish
detailed reports for awards to the approving authority(rules 101-102).The PPA,2006 and the PPR,2008
aim to provide a legal framework for governing public sector procurement.
1. Distribution of Procurement Information
Rule 14 of the PPR, 2008 require that procuring entities make publicly accessible in paper and in
e-format all relevant information pertaining to any specific tenders,specifically records relating to thetender, information concerning the award of contracts, and legal texts. Further, PPR, 2008 directs
procurement entities to furnish,upon request from any concerned person,all documentation relating to
the proceedings of an award or termination of any contract. A number of issues continue to exist in
relation to advertisement of procurement notices,specifically poor advertisement,i.e.,advertisements
in “less circulated”newspapers, non-compliance with time requirements, and fraudulent practices
relating to the posting of notices.These issues of transparency were raised in a legal action,where it
was decided that procuring entities would be responsible for the dissemination of information relating
to procurements and that all advertisements must be circulated in government listed newspapers thatare “
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ments. Section 40 of the recently effective Public Procurement Act, 2006 expressly mentions thenecessity of distributing information about invitations to tender and other pertinent information
required in the provisions of the UNCAC.M oreover,the CPTU has established a website (www.cptu.
gov.bd)to provide diversified information on establishing and maintaining databases on prices,quality,
volumes, performance of suppliers, and the like that are simple and easy to use. These may help toreduce opportunities for corruption and make the whole process cost effective for its beneficiaries.
2. Predetermined Criteria for Public Procurement Decisions
Rule 8 of the PPR, 2008 requires procuring entities to appoint a TEC at the appropriate level toexamine,evaluate and prepare a report with recommendations for the award.The TEC should consistof 5-7 members of which two must be experienced in procurement and from outside the procuring entity
in certain thresh hold value.In accordance with rule 100,TECs are required to determine,on the basisof criteria set out for post qualification in the tender document,whether the tenderer with the lowest
evaluated cost has the capability and resources to effectively carry out the contracts. Should thetenderer not meet the criteria, the tender is liable be rejected. Section 13 of chapter 3 (part 1) of the
Public Procurement Act, 2006 sets out the obligation of procuring entities for formulating criteria fortenderer qualification assessment and evaluation, which should be stated in the tender or proposal
document. These provisions are very important in establishing a proper framework for choosing
appropriate actors for procurement purposes and ensuring that the Government and society gets thefull benefit of such arrangements.Bangladesh has not only taken significant steps toward meeting the
UNCAC demands of transparency in procurement procedures,but has heeded the Conventionʼs encouragement of effectiveness in establishing criteria for public procurement decisions through implementation of the relevant national legislation. Indeed, the current legal discourse has shown the GoBʼsenthusiasm to achieve the recommended international standard.
C. The Code of Conduct for Public Officials
The codes of conduct for civil servants set out the main principles which govern the behavior ofstaff in a modernized civil service.Articles 5 to 33 of the Government Servants (Conduct) Rules, 19 79
provide guidelines for the behavior and conduct of public officials in the civil service. They address
issues like acceptance of awards and gifts, public demonstration of honor to the Government,raisingof funds on behalf of the Government, disclosure of assets and speculation of investment, lending,borrowing buying or selling valuable properties,private trade,and employment.Contraventions of theRules are dealt with by the provisions of the Government Servants (Discipline and Appeal) Rules, 19 85,
which makes violations liable to inquiry and punishment if proved. The detailed Rules of Business,
19 9 6 regulates government business transactions and the allocation of functions among different
ministries/divisions.
1. Asset Declaration
In accordance with rule 13 of the Government Servants (Conduct) Rules, 19 79 , public officials are
required to provide statements of wealth at the time of recruitment,which would include any moveable
and/or immoveable assets. Public officials must also provide an annual update of such assets. By
implication,this would include assets located in Bangladesh and/or abroad.Furthermore,the Government can also ask for a statement of liquid assets from any public official under rule 14 of the same
Rules. M oreover, sections 168 and 169 of the Penal Code, 1860 provide criminal liability for public
officials engaging in unlawful trade, bidding or buying of any property. Both of the sections strictly
recommend imprisonment for violation of the law.To strengthen compliance,by a recent administrative order, the Ministry of Finance has asked public officials to submit and update wealth statements
in a prescribed format.Comprehensive Civil Service Rules are in the process of being drafted,and they
are expected to modify the relevant rules,thus making the domestic legal regime compliant in regard
to this provision.
2. Violation of Conduct in Public Service
The Government Servants (Discipline and Appeal) Rules, 19 85 makes a government servant liable
to inquiry for the contravention of the provisions stated in the Government Servants (Conduct) Rules,
19 79 , and recommends measures for punishment when proved.Part II of the Rules describes the issueof discipline in civil service with procedures of inquiry in cases of major and minor penalties.
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issue are the M inistry of Establishment and the Cabinet Division. Disciplinary measures are quite
regularly taken against those officers who had been accused of violating the law.However,discipline
in itself is likely not sufficient to encourage adherence to codes and standards;if there is no incentive
or reward for better performance, then there may be less motivation to uphold codes of conduct.
3. Preventive M easures ― Legal and Regulatory Framework
AM L preventative measures are set out in the M LPA 2012 and various Bangladesh Bank AML
Circulars and in AML Guidance Notes.For CFT,limited preventative measures are set out in the ATA
2009.Section 21 the MLPA 2012 gave the power to make rules to implement the Act.Section 29 of the
M LPA 2012 provides the power to make rules to implement the Ordinance.Section 43 of the ATA 2009
provides the power to make rules to implement the Ordinance.Bangladesh Bank has issued a numberof Anti M oney Laundering Circulars to instruct banks and financial institutions on AM L/CFT
requirements.
4. Status of Circulars
The Circulars listed above are issued under rule making powers in the MLPA, the Banking
Companies Act and the Financial Institutions Act 1993. The Circulars use obligatory language, andwhile they do not mention sanctions, they reference the previously mentioned statutes which provide
for sanctions.Additionally,the regulator checks reporting entities for compliance against obligationsin the Circulars and sanctions non-compliance with such circulars.
5. Code of Conduct of BusinessIn 2012, the government enacted a law to control monopoly and unethical practices in doing
business, i.e. The Competition Act 2012.
6. Conditions for Participation
Under PPR,2008 any government agency who uses public funds is authorized to make decisions andtake action as a procuring entity.According to rule 130,the CPTU is vested with the responsibility ofproviding guidance for setting up an enabling environment and conditions for participation. Rule 47
provides for non-discrimination,while rule 48 sets out criteria for the qualification of tenderers.These
criteria include the possession of necessary technical and professional qualifications,legal capacity toenter into contract, and meeting tax and social security payment obligations. Rules 48-49 require any
procurement process to stipulate technical specifications for the award of any contract. Rules 56-60
provide for a Review Panel that is responsible for reviewing a tendererʼ
s complaint and recommending
corrective action to a procuring entity,with respect to any breach of its obligations under these Rules.
From the 31 cases brought before the Review Panel between the years 2003-2007,it is clear issues still
exist with regard to setting up transparent and objective selection criteria as the Committee found four
instances where the procuring entities did not stipulate clear criteria on the basis of which contractors
were selected.The current legal instrument,after its effectiveness in 2008,has sufficientlyachieved thisaim in line with the provisions of the UNCAC.
D. Anti-Corruption Campaigns
Section 17(g)of the ACC Act,2004 declared campaigning against corruption as its important object.
The Commission has taken steps to promote the value of honesty and integrity in order to prevent
corruption and take measures to build up much awareness against corruption. It arranges seminars,
symposiums, and workshops.The ACC has formed a strategic planning working group on prevention
to work on a specific field. The prevention unit of the commission formed the Prevention Committee
in M ay 2010, and it has formed 492 Committees in 421 upajila (Police Stations), 62 Districts, 8
M etropolitan Cities.The committees are working to promote values of honesty and integrity in orderto prevent corruption and take measures to build up mass awareness against corruption.The Committee has responsibility to build integrity units in schools,colleges and religious institutes.The Committee has already formed more than 19,000 integrity units all over the country.From 2009 to April 2013,
the prevention unit has conducted general discussion over corruption about 5,492 times, debate 594,
essay writing competition on corruption 786, rally 376, human wall 170, seminar 475, open discussion
1,980, street show 2,844, work shop 45, speech of personnel of civil society 204, drama 28 and others
1,534. The Committee has also conducted as international Anti-Corruption Day on 9 th December inevery year through different ways. That the Prevention Unit of ACC is observing “Anti Corruption

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week”since 2011 starting from 26th M arch (Independence of Bangladesh)till 1st April under different
activities.The Commission has started to celebrate its establishment day every year,i.e.21st November, in different ways since 2012.
The prevention unit has been working since 2009 with the Islamic Foundation Bangladesh topromote the values of honesty and integrity in order to prevent and take measures to build up massawareness against corruption.The ACC is working with electronic media,e.g.Bangladesh Television(Govt.),Channel I (private)to promote the values of honesty and integrity in order to prevent and takemeasures to build up mass awareness against corruption. The Commission conducted a round table
meeting on the “Whistle Blowers”(Protection)Act,2011 on 13 August 2011 with Joint Collaboration of
USAID. It also conducted a round table conference on the “Role of Information and Communication
Technology in Combating Corruption”on 4th September 2012.At present the Commission is working
with USAID, PROGATI and GIZ, and those NGOʼ
S are helping in different ways. That the ACC hasawarded 3 journalists of print media and 2 electronic medias for their courageous reporting on
corruption in this year.

VI. INTERNATIONAL COOPERATION
A. Ratification of AM L Related UN Conventions
Bangladesh became a signatory to the Vienna Convention on 14 April 1989 without Reservation.
Ratification occurred on 11 October 1990. Bangladesh has implemented the provisions of the Vienna
Convention. Bangladesh is not yet a party to the Palermo Convention on Transnational Organized
Crime. Delays with joining the convention derive from concerns over issues related to the UN
Convention on the Rights of Migrant Workers. Bangladesh has adopted some of the language andcoverage of a number of offences required in the Palermo Convention,but has not yet comprehensively
implemented the requirements of the Palermo Convention. Bangladesh became a member of theEgmont Group on 3rd August 2013.
B. Ratification of the UN TF Conventions
Bangladesh acceded to the UN TF Convention on 26 August 2005, which took effect from 25
September 2005.Bangladesh joined the Convention with a Reservation as follows:“Pursuant to Article
24, paragraph 2 of the Convention［the］Government of the Peopleʼ
s Republic of Bangladesh does notconsider itself bound by the provisions of Article 24, paragraph 1 of the Convention.”Article 24(1)relates to parties submitting to arbitration if any dispute on implementation of the Convention cannot
be settled through negotiation within a reasonable time period. Full implementation of the TF
Convention has not yet been achieved.
C. Other Forms of International Cooperation
Bangladesh Bank has taken the lead and is working with other agencies to pursue international
cooperation through various multilateral bodies related to AML/CFT.Bangladesh is a member of the
APG and has served as South Asiaʼ
s representative on the APG Steering Group.Bangladesh FIU is now
actively pursuing international cooperation.Under the MLPA 2012,Section 18 provides general powers
for the government to enter into an agreement with any foreign state for carrying out the purposes of
the Act. Few steps were taken to implement that provision. With the passage of the MLPA in 2012,
greater powers were given to share information and enter into agreements with foreign states.
Exchange of information between the Bangladesh FIU and other FIUs is not subject to disproportionate or unduly restrictive conditions.Section 24 of M LPA permits the FIU to share STRs and otherdata with foreign FIUs “
on the basis of any contract signed or arrangements”. This enables the FIU
to share information in a rapid manner.The FIU is able to cooperate by searching other databases towhich the FIU may have direct or indirect access, including law enforcement databases, public
databases, administrative databases and commercially available databases. Section 26 of the MLPA
provides for contracts with foreign countries and allows the FIU or the Government to sign M OUs,
bilateral or multilateral contracts or conventions to prevent ML. This provision does not extend to
sharing information in relation to terrorist financing. At the time of the onsite visit, the BFIU hadsigned an MOU with the FIU of Malaysia and was pursuing other MOUs. As of September 2013
Bangladesh has signed MOUs with 15 countries including Malaysia,Philippines,Nepal and Indonesia

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and is working toward signing M OUs with South Korea, U.A.E. M yanmar, and Sri Lanka.
List of Countries with which BFIU signed M OUs
SL. NoCountry

Date of Signing

Place of Signing

1

United Kingdom

29.11.2011

UK

2

Singapore

14.12.2011

Dhaka

3

Mongolia

10.07.2012

Russia4South Africa

10.07.2012

Russia5

Japan

31.01.2013

Japan

6

M yanmar07.03.2013

Dhaka, Bangladesh

7

Philippines

02.12.2008

M anila, Philippines

8

M alaysia

12.08.2008

Kuala Lumpur, Malaysia

9

Indonesia

16.03.2009

Jakarta, Indonesia

10

Korea

13.07.2009

Seoul, Korea

11

Afghanistan

07.07.2009

Brisbane, Australia

12

Cambodia26.10.2009

Siam Reap, Cambodia

13

Thailand21.09.2010

Dhaka, Bangladesh

14

Sri Lanka

23.10.2010

Dhaka, Bangladesh

15

Nepal

21.10.2008

Dhaka, Bangladesh

The Bangladesh police make use of INTERPOL for sharing intelligence and to support police-topolice cooperation. No statistics were available to show that INTERPOL channels have been used inrelation to ML or TF investigations by the police.
The ACC has established international cooperation with other anti-corruption bodies, but this islimited to investigations of predicate offences and the laundering of proceeds of corruption.The ACC
is working closely with the BFIU to pursue the proceeds of corruption, and together with otheragencies,the ACC has been active in cooperating with other countries under the umbrella of the UN/
World Bank Stolen Assets Recovery(StAR)Initiative.The ACC is trying to establish a regular channel
for cooperation with the designated International Criminal Police Organization (INTERPOL)contact
in Bangladesh police to support the ACCʼs role of M L investigation agency, including pursuinginternational cooperation through INTERPOL channels.
In relation to cooperation between insurance regulators, Bangladesh is not yet a member of the
IAIS,so it is limited in sharing regulatory information relating to insurance.The NGO Affairs Bureau
is the recognized point of contact for international cooperation and information sharing in relation toNPOs operating in Bangladesh.There are no statutes in Bangladesh that would bar agency-to-agency
cooperation solely on the grounds that they may involve fiscal matters.
D. M utual Legal AssistanceBangladesh has legislation to provide for the giving and receiving of mutual legal assistance(M LA)
under the Mutual Legal Assistance Act 2012 and under the Mutual Legal Assistance Rules 2013 (8September 2013). Some offence-creating statutes, such as the MLPA 2012 and the ATA 2009, include
M LA 2012 provisions. Bangladeshi laws now make wide provisions for giving and requesting mutual
legal assistance. The ACC Act does not make any provision for international cooperation.
Bangladesh ratified the SAARC Convention on M utual Assistance in Criminal Matters on 9 M arch

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2009.The SAARC Convention requires member states to provide a wide range of mutual assistance tofellow member States. In addition Article 3 of the SAARC Convention expressly requires member
States Parties to assist whether or not the conduct the subject of the investigation or proceeding is anoffence under the laws of the requested State Party. (As ratification of the SAARC Convention
occurred outside of the cutoff date for this assessment, it has to been considered when finalizing thecompliance rating).
E. Extradition
The government (through Gazette Notification UNSOC-(27 April 2008)nominated the Ministry ofHome Affairs and the Office of the Attorney General as the designated central authorities to receiveand execute requests for mutual legal assistance (MLA).The UN Secretary-General has been notifiedof these matters. Bangladesh can now respond to any request for MLA from a State Party which ismade through the central authority;domestic law does not ban such cooperation from being provided.
Section 26 of the Money Laundering Prevention Act (M LPA)2012 provides that the government,or insome cases the Bangladesh Bank, may sign a memorandum of understanding (MOU) or bilateral or
multilateral agreements with foreign countries and organizations to prevent money laundering.Whensuch agreements are signed,the government or Bangladesh Bank can request and provide informationin response to requests from other countries,as long as it does not affect national security.Moreover,Section 503(2B)of the Criminal Procedure Code provides limited allowances for seeking assistance togather evidence through the Commission, which can examine witnesses abroad. Bangladesh recently
entered into MLA agreements with ten countries. Bangladesh ratified the SAARC Convention on
M utual Assistance in Criminal Matters on 9 March 2009. The SAARC Convention requires member
states to provide a wide range of mutual assistance to fellow member States. In addition Article 3 of
the SAARC Convention expressly requires member States Parties to assist whether or not the conduct
the subject of the investigation or proceeding is an offence under the laws of the requested State Party.
To make M LA more functional and effective, Bangladesh has taken steps to strengthen international cooperation by signing bilateral and multilateral agreements including extradition laws. In
Bangladesh, the extradition regime is governed by the Extradition Act (EA), 1974. Bangladesh has
opted for compliance of the UNCAC through the formulation of treaties as the legal basis for
extradition.The EA,1974 spells out a list of extraditable offences.Bribery and embezzlement are theonly extraditable offences under the UNCAC that have been listed.Consequently,there is a gap in thisarea as the remaining UNCAC offences are not recognized by the domestic law as extraditableoffences.Recognizing Convention offences universally across all States Parties is an important step tofull implementation of the UNCAC provisions and is essential for bringing an offender to justice.
Accordingly, the list of extraditable offences would need to be amended to include all of the UNCAC
offences. One aspect of the domestic law of Bangladesh that complies with the requirements of the
UNCAC is that Bangladesh does not allow refusal of extradition on the sole ground that the offence
is considered to involve fiscal matters.
According to the EA, 1974, both national and alien fugitive offenders can be extradited.However,to conduct such extradition,the EA,1974 requires that there be an extradition treaty in place between
Bangladesh and the country requesting said extradition. So far, Thailand is the only country withwhich Bangladesh has an extradition treaty. Nevertheless, the provision for extradition is currently
being negotiated in several agreements for mutual legal assistance. Provisions for extradition havebeen included in two of the three money-laundering prevention agreements currently under process/recently negotiated with India and countries of the South Asian Association for Regional Cooperation(SAARC)and the Bay of Bengal Initiative for Multi-Sectored Technical and Economic Cooperation.
F. Information Exchange between Law Enforcement Authorities
1. M easures to Prevent Corruption Involving the Private Sector and to Enhance Accounting and
Auditing Standards
The Government has taken an initiative to frame a guideline for private sector accounting andauditing firms for the purpose of framing standards to exchange information with law enforcement
authorities. The framing process is passing a hurdle.

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2. M easures to Promote the Active Participation of Individuals and Groups Outside of the Public
Sector, Such as Civil Society, Non-Governmental Organizations and Community-Based Organizations(a)Civil Society Organizations (CSO)
The GoB has made tremendous efforts to restrain the level of corruption in the public sector,alongwith encouraging the private sector to be more effective and responsive to integrity.The response fromthe private sector, civil society and the general population has been remarkable. The Governmentʼseffort to incorporate people into the process of preventing corruption has had an impact on the
expansion and consolidation of democracy.Undoubtedly,sustenance of the anti-corruption mechanism
significantly depends upon the participation of civil society and other non-governmental actors, ofwhich raising awareness of the mass drive against corruption plays an important role. The legalanti-corruption framework of Bangladesh, particularly, the Anti-Corruption Commission (ACC) Act,
2004 supports popular participation in the prevention of corruption.Section 17 of the Act (Functionsof the Commission)explains the role of the Commission in research and promotion of anti-corruption
ideas through awareness campaigns, along with its legal and prosecutorial activities.
One of the significant activities of the ACC is to promote the values ofhonestyand integrityin orderto prevent corruption and take measures to build up mass awareness against corruption (section 17g).
It can also arrange seminars,symposiums and workshops on the subjects falling within the jurisdictionof the Commission (section 17h). These functions of the ACC encourage mass participation by all
sectors of society.Moreover,the Commission,under the purview of this Act,can carry out research on
the issues of prevention of corruption and prepare recommendations for the President regarding
actions which should be taken on the basis of their research findings (section 17f). Their empiricalresearch is likely to incorporate and reflect the demands of the population as part of its methodology.
Additionally, there is a provision for the publication of an Annual Report by the ACC. M oreover,section 29 of the ACC Act ensures peopleʼ
s access to information about anti-corruption activities
undertaken by the Government. To promote a successful anti-corruption strategy where the voice of
public opinion could be an effective and politically neutral mechanism to combat corruption,the ACC
has taken steps to raise public awareness. In the past,it was a rare occurrence to find such activities
in Bangladesh.The purpose of these efforts is to make the public aware about the impact of corruption
on social,political and economic life.In particular,the Government endeavors to spread a message thatwill foster transparency and accountability which is essential to curb malfeasance by those in the
public sphere.To that end,the ACC aims to promote the role of civil society organizations to advocate
for such reform initiatives.
As part of this effort, the ACC launched a consciousness-raising campaign against corruption on
April 2007,in association with Transparency International Bangladesh.The ACC is also interested inestablishing citizensʼanti-corruption committees at the district level. This is an exemplary effort inwhich the Government,with the assistance ofcivil society,is attempting to involve people in the overall
anti-corruption drive.Under this campaign,the Chairman of the ACC has commenced a national tour
to meet stakeholders such as civil society groups, local administrations, journalists, students andfield-level ACC officials. Moreover, the Chairman and co-organizers visited many places within the
country and arranged consultation meetings,colorful rallies,and events led by the young people,alongwith giving public service announcements for media,organizing debates and dialogues,in addition toother awareness campaign tools, for the purposes of accelerating mass participation in the anticorruption battle.The architects of the campaign believe that the ongoing drive against corruption will
be a comprehensive long-term effort which demands the participation of people from all levels ofsociety in order to be successful.Participation of society and a public-private partnership are criticalto the success of any anti-corruption mechanism as such activities promote a sustainable development
process of the state by curbing levels of corruption.As a first step,the Government of Bangladesh has
approached the issue by incorporating societal participation through the formal legal document of theAnti-Corruption Commission.
Bangladesh has some of the worldʼ
s best-known civil society organizations namely the Grameen
Bank run by the Nobel Peace winner M ohammed Yunus. CSOs have an important watchdog role toplay;CSOs act as watchdogs and representatives of the citizenry and keep a constant check on theactivities of the government.

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RESOURCE MATERIAL SERIES No. 92(b) Media
M edia in Bangladesh has played a leading role in informing,educating,and entertaining the masses
and is seen as a potential ally. Since the last Care Taker Government, the standard and frequency of
the anti-corruption debate on the electronic media has improved to some extent.Print media allocatesa huge part of the media and has been performing its watchdog function by publishing the high profile
prosecutions, investigative stories, articles and editorials on issues related to governance and anticorruption.
(c) International Organization and Donors
International organization and donors are contributing to the reform process.They are helping intranslating the ideal of governance and anti-corruption reforms into reality by providing financial andtechnical assistance. In the area of anti-corruption, ADB is the leading donor. DANIDA and DFID
support the project with a technical support component worth $2 1/2 million.DFID is also supporting
the MATT programme while UNDP is supporting ethics and integrity through the Public Service
Change M anagement programme and the recently completed ACAC. JICA, KOICA, GIZ, USAID,UNODC and WORLD BANK are also providing technical assistance.
3. M easures to Encourage Cooperation between National Investigating and Prosecuting Authorities
and Private-Sector Entities, in Particular Financial Institutions(a)Self-Regulatory Organizations (SROs)
The Institute of Chartered Accountants of Bangladesh (ICAB)
The Institute of Chartered Accountants of Bangladesh (ICAB)is the National Professional Accounting Body of Bangladesh established under the Bangladesh Chartered Accountants Order 1973
(Presidential Order No.2 of 1973).The Ministry of Commerce administers ICAB.ICABʼ
s role is toregulate the accountancy profession;ensure professional ethics and codes of conduct and to provide
specialized training.As of 1 July 2007,the Institute had 868 members of whom 730 were resident in
Bangladesh.288 are practicing as public accountants,with the balance serving in public and private
sector organizations. The ICAB has an Investigation and Disciplinary Committee. The ICAB has
not yet issued any rules related to AML/CFT.
The Institute of Cost and Management Accountants of Bangladesh
The Institute of Cost and M anagement Accountants of Bangladesh is an autonomous professional
body under the M inistry of Commerce. As of 30 June 2006, membership was 745, excluding 42
members whose names have been removed from the register.
Cost & M anagement Accountants Ordinance 1977;and Cost & Management Accountants Regulations 1980.
Bangladesh Bar Council
The Bangladesh Bar Council is constituted under the Presidentʼ
s Order No. 46/1972. The Bar
Council Rules,1972 make detailed provisions for disciplinary proceedings,enrolment of advocates,etc. The Bangladesh Bar Council has framed rules of professional conduct to be followed by
advocates with regard to other advocates, clients and the public in general, and their duty to thecourt. The Bar Council has not yet issued any rules related to AM L/CFT.

VI. CONCLUSION
Bangladesh became independent by dint of huge sacrifice of life of millions of people. They are apeace-loving people. The people want to live in a corruption-free society,so they support eradicating
and preventing corruption in all sectors.ACC is established with these intentions.Effective government
commitment is needed here.All other political parties,civil society,and all other people should comeforward and work accordingly.

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THE BRAZILIAN LEGAL FRAMEWORK AGAINST CORRUPTION
Vladimir Aras

I. INTRODUCTION
Corruption is a major global problem, but it is much more serious in developing countries. Due toits economic effects,corruption is a threat to stabilityand securityofsocieties.It undermines the valuesof democracy and jeopardizes the rule of law. According to Gerald E. Caiden,
Corruption has now become a popular subject in international circles. Not that it is new. Far
from that,corruption has been with us since the dawn of government.But finally the world has
decided that it has become too dysfunctional for global development for it to go unchallenged.
Indeed, it has become so menacing that something has to be done about it. But are we talking
about the same thing?Despite different words for it, there are common definitions and what ismore there seems to be a remarkable degree of agreement in time and place.Ever since written
records have survived, the same kinds of objectionable behavior have been identified, irrespective of language, religion, culture, ethnicity, governance, location, philosophy and social
values. These have always been considered unworthy of individuals exercising power overothers, epitomized in Lord Actonʼ
s dictum that “Power corrupts; absolute power corrupts
absolutely.”They have disappointed those over whom they have exercised their power.1
Caiden is right. As stated in the preamble of the United Nations Convention against Corruption(UNCAC),corruption is no longer a local matter but a transnational epidemic that affects all societies
and economies, making essential international cooperation to prevent and control it.
Corruption takes advantage of its invisibility, the culture of secrecy and greed.This phenomenon,
very similar in all human societies, is directly linked to money laundering and serious forms oforganized crime. Drug gangs, human traffickers, arms traffickers and smugglers of wild animals
always pay bribes to public servants to keep their business running. Here is a dauting list of thenegative consequences of systemic corruption, according to Caiden (2003):
1. It perpetuates closed politics and restricts access to decision making, thereby impeding the reflection of social change in political arrangements.
2. It suppresses opposition,thereby building up public resentment that needs only a flashpoint to erupt
into violence.
3. It perpetuates and widens social divisions further dividing the haves from the have-nots.
4. It obstructs policy change, thereby sacrificing the public interest to narrow, partial and selectinterests.
5. It blocks much needed reforms and perpetuates poor administrative practices that give offence andreduce performance.
6. It diverts scarce resources away from public amenities and services to private affluence amid
general squalor.
7. It contributes to social anomie by shoring up inappropriate arrangements.
8. It undermines trust in public institutions and alienates people.
9. It is dysfunctional to globalization, modernization, and effective governance.
10.It entrenches an international political-criminal network that undermines global security.2
Federal Prosecutor, Secretary for International Cooperation, Federal Public Prosecution Service of Brazil.
1CAIDEN, G. E.(2003),The burden on our backs; corruption in Latin America.VIII International Congress of CLAD on

the Reform of State and the Public Administation, Panama, Oct. 2003.

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So,the problem of corruption is really very serious and the Third World countries,like Brazil,needtechnical assistance and financing to overcome such difficulties. Such nations also need to be part ofthe international conventions on the subject. They should also have an adequate criminal legislation,
which can ensure the punishment of criminals, asset recovery and preventing further illegal conduct.
Brazil is a rapidly developing market. There is much public money in the economy in several
projects and public works. Still ― and perhaps for this reason ― Brazil faces repeated corruption
scandals both at federal and state levels.M uch has been done since the democratization of the country
in the eighties, through the structuring of the law enforcement agencies and programmes of crime
prevention and suppression of corruption, as well as through the adoption of appropriate laws.

II. THE UNITED NATIONS CONVENTION AGAINST CORRUPTION“In its resolution 55/61 of 4 December 2000, the General Assembly recognized that an effective
international legal instrument against corruption,independent of the United Nations Convention
against Transnational Organized Crime (resolution 55/25,annex I)was desirable and decided toestablish an ad hoc committee for the negotiation of such an instrument in Vienna at theheadquarters of the United Nations Office on Drugs and Crime［］
In accordance with article 68 (1) of resolution 58/4, the United Nations Convention against
Corruption entered into force on 14 December 2005. A Conference of the States Parties isestablished to review implementation and facilitate activities required by the Convention”(UNODC, 2013).3
The Convention highlights are prevention of corruption, criminalization of certain behaviours,
cooperation on the national level, international cooperation and asset recovery. According to the
UNODC,
Corruption can be prosecuted after the fact, but first and foremost, it requires prevention. An
entire chapter of the Convention is dedicated to prevention,with measures directed at both the
public and private sectors.
These include model preventive policies,such as the establishment of anti-corruption bodies andenhanced transparency in the financing of election campaigns and political parties.States must
endeavor to ensure that their public services are subject to safeguards that promote efficiency,transparency and recruitment based on merit.Once recruited,public servants should be subject
to codes of conduct, requirements for financial and other disclosures, and appropriate disciplinary measures. Transparency and accountability in matters of public finance must also be
promoted, and specific requirements are established for the prevention of corruption, in theparticularly critical areas of the public sector, such as the judiciary and public procurement.
Those who use public services must expect a high standard ofconduct from their public servants.
Preventing public corruption also requires an effort from all members of society at large. For
these reasons, the Convention calls on countries to promote actively the involvement of nongovernmental and community-based organizations,as well as other elements of civil society,andto raise public awareness of corruption and what can be done about it. Article 5 of theConvention enjoins each State Party to establish and promote effective practices aimed at theprevention of corruption.4
As of M ay 29, 2013, the United Nations Convention Against Corruption (UNCAC)had 167 parties.
Brazil signed the Convention on December 10,2003.Its ratification dates back to June 15,2005.But its
effectiveness in Brazilian domestic law only occurred in 2006,when the President ofthe Republic issued
2CAIDEN, G. E.(2003),The burden on our backs; corruption in Latin America.VIII International Congress of CLAD on

the Reform of State and the Public Administration, Panama, Oct. 2003.
3United Nations Office on Drugs an Crime.UNODC′
s Action Against Corruption and Economic Crime.(pubd online,2013)
http://www.unodc.org/unodc/en/corruption/index.html?ref＝menuside>accessed 28 July 2013.
4United Nations Office on Drugs an Crime.UNODC′
s Action Against Corruption and Economic Crime.(pubd online,2013)
http://www.unodc.org/unodc/en/corruption/index.html?ref＝menuside>accessed 28 July 2013.

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Decree 5.687 of January 31, 2006.Seven years have passed and Brazil has not yet implemented all themeasures provided for in the Convention.

III. THE BRAZILIAN EFFORTS AGAINST CORRUPTION
Transparency and merit are two concepts essential for good governance,which requires an efficientsystem of recruitment of public officials. A mandatory merit system was established in 1988 by theBrazilian Constitution (article 37, II). Admission in a public office or position depends on previously
passing an exam consisting oftests or tests and academic/professional credentials,in accordance to thenature and complexity of the position, as set forth by law.
Also,the federal government established a system for purchasing goods and services which requires
adherence to a mandatory procurement procedure(article 37,XXI,ofthe Federal Constitution):“Public
works, services, purchases and disposals shall be contracted by public bidding proceedings that ensure
equal conditions to all bidders”.
COMPRASNET is the access point to the Brazilian Federal Governmentʼs e-procurement system.
The portal enables users to view information on all Federal Government purchases of goods andservices and to participate in the e-procurement process.This kind of information helps prosecutors to
identify and prosecute criminals that defraud public bids.
Brazilʼs current efforts to tackle corruption are massive. There are many agencies involved incombating bribery and corruption control.In the Brazilian judicial system,the most important role isplayed by the Public Prosecution Office, at both the federal and state levels, and by the Office of theComptroller General (CGU).
CGU is the government agency most experienced in promoting cooperation between the public andprivate sectors.It maintains partnerships with civil society organizations to disseminate best practices
in the business world, as well as to promote the education of children in the field of ethics and good
governance.
Despite not being a law enforcement agencyin the criminal area,CGU assists prosecutors and police
in the investigation of crimes of corruption, in a broad sense.
Apart from being in charge of inspecting and detecting frauds in the use of federal public funds,
the Office of the Comptroller General (CGU) is also responsible for developing mechanisms toprevent corruption. The idea is that,besides detecting cases of corruption,CGU has the role ofacting proactively by developing means to prevent their occurrence to the prevention,investigation and prosecution of corruption and to the freezing, seizure, confiscation and return of theproceeds of offences. (CGU, 2013)5
In fact, the existence of specialized authorities is a key factor in the fight against corruption. For
this reason, Article 36 of UNCAC provides that States shall ensure the existence of a body or bodies
or persons specialized in combating corruption through law enforcement. Such body or bodies or
persons shall be granted the necessary independence,in accordance with the fundamental principles ofthe legal system of the State Party,to be able to carry out their functions effectively and without any
undue influence.Such persons or staff of such body or bodies should have the appropriate training andresources to carry out their tasks. In Brazil, one of these bodies is the Public Prosecution Office.
In accordance with Article 127 ofthe Constitution,the Public Prosecution is a permanent institution,
essential to the jurisdictional function of the State, and it is its duty to defend the juridical order,thedemocratic regime and the inalienable social and individual interests.Among other functions,this bodyis responsible for initiating criminal prosecutions;to ensure effective respect to the rights guaranteedin the Constitution;and to institute civil investigation and public civil suits to protect public and social
5Office of the Comptroller General.Preventing corruption. (Brası
lia,Brazil,2009;pubd online 2009) http://www.cgu.gov.

br/english/AreaPrevencaoCorrupcao/OQueE/>accessed 20 July 2013.

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property, the environment and other diffuse and collective interests.
Among the most effective measures to prevent and combat corruption are policies that promote theparticipation of society and reflect the principles of the rule of law, proper management of publicaffairs and public property,integrity,transparency and accountability.In accordance with Article 5 of
the UNCAC,the member countries shall endeavour to establish and promote effective practices aimed
at the prevention of corruption, by collaborating with each other and with relevant international andregional organizations in promoting and developing the measures referred to in that article. That
collaboration may include participation in international programmes and projects aimed at theprevention of corruption.
According to Article 38 of UNCAC each State Party shall take such measures as may be necessary
to encourage, in accordance with its domestic law, cooperation between, on the one hand, its publicauthorities, as well as its public officials, and, on the other hand, its authorities responsible forinvestigating and prosecuting criminal offences. Cooperation between national authorities and theprivate sector is also necessary, in particular financial institutions, relating to matters involving thecommission of offences established in accordance with UNCAC.

IV. THE BRAZILIAN LEGAL FRAMEWORK AGAINST CORRUPTION
Article 37 of the 1988 Brazilian Constitution is a key section of the legislative anti-corruption
framework.
Article 37. The governmental entities and entities owned by the Government in any of thepowers of the Union, the states, the Federal District and the M unicipalities shall obey theprinciples of lawfulness, impersonality, morality, publicity, and efficiency, and also the following:
Paragraph 4. Acts of administrative dishonesty shall result in the suspension of political rights,
loss ofpublic function,prohibition to transfer personal propertyand reimbursement to the Public
Treasury, in the manner and grading established by law, without prejudice to the applicablecriminal action.
Every Brazilian criminal law is passed by Congress. The relevant laws applied by the Brazilian
courts against corruption are:a) Criminal Code (1940)b) the Code of Criminal Procedure (1941)c) M oney Laundering Act (1998)d) Procurement Law (1993)e) Law of Crimes committed by M ayors (1967)f) Organized Crime Act (1995)
The M oney Laundering Act of 1998 was amended in 2012 in order to comply with the FATF
recommendations. Now the AM L legislation serves to process any predicate offence that provides
assets to the criminal. There is no longer a closed list of predicate offences.
The financial intelligence unit operates satisfactorily in Brazil.The Council for Financial Activities
Control (COAF)is an agency attached to the M inistry of Finance of Brazil.The prosecutors and police
receive suspicious transaction reports, which can lead to the initiation of criminal investigations.
Federal Decree 5483 of June 30,2005 provides for the investigation of civil servantsʼassets,in orderto facilitate asset recovery and the identification of illicit enrichment.
Two other non-criminal laws are important to punish bribery and dishonesty:the Administrative
M isconduct Act (1992) and the Freedom of Information Act (2011). Acces to information on public
spending is an importat tool for the society to control the government.

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Brazil is a member of the FATF and therefore must comply with the 40 recommendations that theauthority instituted. Several multilateral instruments against corruption have been adopted since themid-1990s. Brazil is a part of the most important conventions:i) the United Nations Convention against Corruption (Decree 5.687 of January 31, 2006)ii) the Organization of American States Convention against Corruption (Caracas Convention)(Decree
4.410 of October 7, 2002).
iii) The OECD Convention on Combating Bribery of Foreign Public Officials in International BusinessTransactions (Decree 3.678 of November 30, 2000).
However,Brazil has not yet implemented all obligations assumed when it signed and ratified thesetreaties.For example,there has not been the criminalization ofbriberyin the private sector.Therefore,
this country does not comply with Article 21 of the UNCAC:
Article 21. Bribery in the private sector
Each State Party shall consider adopting such legislative and other measures as may benecessary to establish as criminal offenses, when committed intentionally in the course of
economic, financial or commercial activities:(a)The promise, offering or giving,directly or indirectly,of an undue advantage to any person
who directs or works, in any capacity, for a private sector entity, for the person himself or
herself or for another person,in order that he or she,in breach of his or her duties,act or refrainfrom acting;(b)The solicitation or acceptance, directly or indirectly, of an undue advantage by any person
who directs or works, in any capacity, for a private sector entity, for the person himself or
herself or for another person,in order that he or she,in breach of his or her duties,act or refrainfrom acting.
M oreover, we do not have legislation to regulate properly all special investigative techniques yet.
The Organized Crime Act of 1995 is insufficient,so much so that Congress just passed a bill amending
the current regulation substantially (Bill No. 150 of 2006). This draft law still requires presidential
approval.
When the new organized crime act is in effect, there will be clear rules on plea agreements,
controlled delivery,undercover operations,among other special investigative techniques.Thus,Brazil
will fully comply with Article 50 of the UNCAC, which provides:
Article 50. Special investigative techniques
1. In order to combat corruption effectively,each State Party shall,to the extent permitted by
the basic principles of its domestic legal system and in accordance with the conditions prescribedby its domestic law,take such measures as may be necessary,within its means,to allow for theappropriate use by its competent authorities of controlled delivery and,where it deems appropriate,other special investigative techniques,such as electronic or other forms of surveillance andundercover operations,within its territory,and to allow for the admissibilityin court ofevidence
derived therefrom.
2. For the purpose of investigating the offenses covered by this Convention,States Parties areencouraged to conclude, when necessary, appropriate bilateral or multilateral agreements or
arrangements for using such special investigative techniques in the context of cooperation at theinternational level.Such agreements or arrangements shall be concluded and implemented in fullcompliance with the principle of sovereign equality of States and shall be carried out strictly inaccordance with the terms of those agreements or arrangements.
3. In the absence of an agreement or arrangement as set forth in paragraph 2 of this article,
decisions to use such special investigative techniques at the international level shall be made ona case-by-case basis and may, when necessary, take into consideration financial arrangements
and understandings with respect to the exercise of jurisdiction by the States Parties concerned.
4. Decisions to use controlled delivery at the international level may, with the consent of theStates Parties concerned,include methods such as intercepting and allowing the goods or funds
to continue intact or be removed or replaced in whole or in part.

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Unfortunately,the draft law(organized crime bill)has only a brief provision on task forces but says
nothing about the joint investigation teams, which are the subject of Article 49 of the UNCAC:
Article 49. Joint investigations
States Parties shall consider concluding bilateral or multilateral agreements or arrangements
whereby, in relation to matters that are the subject of investigations, prosecutions or judicial
proceedings in one or more States, the competent authorities concerned may establish joint
investigative bodies. In the absence of such agreements or arrangements, joint investigations
may be undertaken by agreement on a case-by-case basis. The States Parties involved shallensure that the sovereignty of the State Party in whose territory such investigation is to takeplace is fully respected.
Brazilian law for the protection of victims and witnesses (Law 9807 of 1999) is reasonably good.
However, there are not very clear rules on the protection of informants in good faith. Few public
institutions maintain programmes to encourage whistleblowing. Another bill,which has already been
approved by both houses of Congress, will create a specific programme of collaboration within the
Office of the Comptroller General(CGU).This is the new Brazilian Anti-Corruption Law,similar to theForeign Corrupt Practices Act (FCPA)from the United States.
For now, however, Brazil does not entirely meet Article 39, No. 2, of the UNCAC, which requiresthat each State Party shall consider encouraging its nationals and other persons with a habitualresidence in its territory to report to the national investigating and prosecuting authorities thecommission of an offence established in accordance with this Convention.
On the same subject,one must bear in mind Article 33 of the UNCAC.By reading it one can see thatLaw 9807 of 1999 (Victms, Experts and Witness Protection Act) is actually unable to meet all thenuances of proper protection to whistleblowers.
Article 33. Protection of reporting persons
Each State Party shall consider incorporating into its domestic legal system appropriate
measures to provide protection against any unjustified treatment for any person who reports ingood faith and on reasonable grounds to the competent authorities any facts concerning offenses
established in accordance with this Convention.
For this reason, Article 126-A of Law 8112 of 1990 states that no public official can be held
responsible, in any civil, criminal or administrative proceeding, just because he/she reported to theproper authority his/her suspicion that another employee is engaged in criminal activity.
Note that this new and future legislation (Bill No.39 of 2013)is not of a criminal nature.It is a lawthat imposes civil and administrative penalties for companies. Thus, it is intended to meet theprovisions of Article 26 of the UNCAC. Currently, in Brazil there is only criminal liability for legal
persons who commit environmental crimes. It is what provides the Law 9605 of 1998.
Article 26. Liability of legal persons
1. Each State Party shall adopt such measures as may be necessary, consistent with its legal
principles, to establish the liability of legal persons for participation in the offenses establishedin accordance with this Convention.
2. Subject to the legal principles of the State Party,the liability of legal persons may be criminal,
civil or administrative.
3. Such liability shall be without prejudice to the criminal liability of the natural persons who
have committed the offenses.
4. Each State Party shall,in particular,ensure that legal persons held liable in accordance withthis article are subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions.
Another problem concerns the fragility and benevolence of the statutes of limitations.Prosecutions,even when serious crimes are engaged, are impeded very quickly. Prosecutors have little time to228

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investigate and prosecute the defendants. Brazilian courts are almost always buried in a mountain oflawsuits,which increases the difficulty of prosecution.These factors cause large ratios of impunity inthe criminal system.Thus,it is safe to say that Brazil does not comply with Article 29 of the UNCAC
and does not establish a long statute of limitations period:
Article 29. Statute of limitations
Each State Party shall, where appropriate, establish under its domestic law a long statute oflimitations period in which to commence proceedings for any offense established in accordancewith this Convention and establish a longer statute of limitations period or provide for thesuspension of the statute of limitations where the alleged offender has evaded the administrationof justice.
Regarding international cooperation, Brazil has two central authorities in criminal matters. The
first and most important is the Department of Assets Recovery and International Legal Cooperation(DRCI), which belongs to the Ministry of Justice. The second one is the International Cooperation
Office of the Attorney Generalʼs Office (ASCJI/PGR).
Brazil is part of several bilateral treaties on international cooperation in criminal matters.It is alsopart of the Inter-American Convention on M utual Legal Assistance in Criminal Matters and theConvention of the Community of Portuguese Language Countries (CPLP).Thus,the country is able toprovide assistance in obtaining evidence for the freezing of assets and repatriation of money.

V. INITIATIVES TO IM PROVE THE LEGAL FRAMEWORK ON THE FIGHT
AGAINST CORRUPTION
In addition to the initiatives listed in this article that reveal Brazilʼ
s efforts to tackle corruption andadapt to the UNCAC,there are other measures that should be mentioned.The President has just signed
the law on conflicts of interests in the public administration (Law 12813 of 2013). The bill on theregulation of lobbying has been queued since 2007.The criminalization of illicit enrichment is also on
the agenda of Congress.According to Article 20 of the UNCAC,
Article 20. Illicit enrichment
Subject to its constitution and the fundamental principles of its legal system, each State Party
shall consider adopting such legislative and other measures as may be necessary to establish asa criminal offence, when committed intentionally, illicit enrichment, that is, a significant
increase in the assets of a public official that he or she cannot reasonably explain in relation tohis or her lawful income.

VI. CONCLUSION
By investigating and prosecuting criminals,the law enforcement agencies help defend public assets.
Other state agencies contribute to enhancing management transparency through internal control
activities, public audits, corrective and disciplinary measures. It is essential to promote transparency
in public spending, public procurement and public agreements. It seems right to affirm that the only
way to improve compliance with anti-corruption laws is through internal and international cooperation. Without it no politics will be effective against corruption. M oreover participation of society is
mandatory. Article 13 of UNCAC makes this very clear.
We cannot disregard the mediaʼ
s role in exposing corruption.As Johann Fritz states,corruption isa watchdog of democracy.And the press is the eye of the citizen.Despite the efforts ofthe international
community, the indices of corruption are still very high across the globe. Depriving children of theirschools and people of decent health services,corruption kills many people every year.For that reason,
the implementation of the United Nations Convention against Corruption will be indeed a realachievement in the global fight against corruption. There is full commitment and willingness ofBrazilian authorities towards the enforcement of this and all other international conventions against
bribery.

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CRIMINAL JUSTICE SYSTEM RESPONSE TO THE PROBLEM
OF CORRUPTION IN KENYA
Abraham Kipkoech Kemboi

I. CURENT SITUATION IN FIGHTING CORRUPTION
Corruption is a major problem in Kenya which dates back to pre-independent times but gained
prominence in the 1970s when smuggling of coffee from neighbouring countries and grabbing of public
utility land came into public debate.It gradually permeated the entire body of institutions,and in the
1990s the President then acknowledged official corruption in the country.1 It was for this reason that
Kenya became the first country in the world to sign and ratify the United Nations Convention against
Corruption (UNCAC)on 9 Dec 2003.2
Kenya was ranked 139 out of 174 worldwide with a score of 27 in the 2012 corruption perception
surveyconducted byTransparencyInternational.According to the Auditor General,close to 30% ofthe
total national revenue is lost through corruption annually; leading to disinvestment and increased
poverty levels among the lower and underprivileged. It cannot be gainsaid that corruption is a major
development challenge in Kenya today more than ever.
Various pre-and post-independent anti-corruption initiatives have been made to control corruptionin Kenya,but impact of the said efforts is yet to be felt.As already stated,notwithstanding the manyefforts made to slay the dragon of corruption in Kenya,very little (if any)progress has been achieved.
So it begs the question:what is problem?
Corruption in Kenya is attributed to political patronage,weakened civil society,and lack of abilityby the poor majority of Kenyans to hold their leadership to account.In fact in Kenya,for one to gain
wealth, you need not be a diligent professional, but rather engage in politics, which affords you theopportunity to swindle public moneys and defend your act whenever attempts are made to hold you toaccount. Politicians once elected as members of parliament are the ones who develop the instruments
and tools for fighting corruption.These tools include passage of enabling legislation,form institutions
that fight corruption and allocate sufficient resources. This is usually done with vested interests in
mind,leading to instances whereby laws are intentionally passed with loopholes that appear to aid theconspirators and perpetrators of corruption and economic crimes.For example,in the Anti-Corruption
and Economic Crimes Act, 2003, some sections which criminalized failure to provide evidence anddocuments were repealed by the members ofparliament.This made the fight against corruption greatly
difficult as the enforcement agency now relied on the good will of the-would be suspects to cooperate.
Worse still the parliamentarians would frequentlythreaten to disband the Anti-Corruption Commission(then under an Act of Parliament)whenever they were pursued for engaging in corruption.
In realization of the need to have a properly anchored body constitutionally, there was establishment of the Ethics and Anti-Corruption Commission in the 2010 Constitution. It has the mandate offighting corruption through law enforcement and public education.It is also charged with the responsibility of developing and promoting standards and best practices in integrity and anti-corruption andoversees the enforcement of codes of ethics prescribed for public officers.The Commission is the leadagency in the fight against corruption and economic crimes.Other allied agencies include the police andrevenue authorities.The structure of the Commission is such that it has five directorates which enable
Technical/Surveillance Officer, Investigation and Asset Tracing, Ethics and Anti-Corruption Commission, Kenya.
1Kibwana et al:The Anatomy of Corruption in Kenya, 2005.
2United Nation Convention against Corruption (UNCAC),

http://www.unodc.org/documents/treaties/UNCAC/Publications/08-50026 E.pdf>.

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it to achieve its objectives. The directorates are:Legal Services,Investigations,Ethics & Leadership,
Preventive Services, and Administration.
A. Legislative Framework
The laws passed to fight corruption in Kenya are:
1. The Constitution of Kenya3
Article 10 of the Constitution ― the National Values and in particular article 10 (c);goodgovernance, integrity, transparency and accountability.
Article 73;the responsibilities of leadership and the guiding principles of leadership.
Articles 75, 76 & 77
2. The Anti-Corruption and Economic Crimes Act (2003)‑ACECAThis Act defines the corruption and economic crimes offences and the attendant penalties.Also
stipulates the procedure ofinstituting civil recoveries for stolen public properties and the mannerin which plea bargains are to be carried out.
3. The Public Officers Ethics Act (2003)
Stipulates the manner in which public officers should conduct themselves while discharging their
public and private duties. Also deals with wealth declarations.
4. The Public Procurement and Disposal Act (2005)
Guides the procedure of procuring goods and services in government and violations the procedures as set out in the act are criminalized in the ACECA
5. The Penal CodeAn act of parliament defining the code of criminal law, which covers the substantive criminal
justice system in Kenya;including corruption and abuse of office
6. The Mutual Legal Assistance MLA (2011)
An instrument of engagement with the international community on cross border crimes pursuant
to UNTOC
7. The Leadership and Integrity Act (2012)4
This Act gives effect to, and establishes procedures and mechanisms for,the effective administration of Chapter Six of the Constitution and for connected purposes. Criminalizes actions
perceived to be avenues of corruption by leaders and defines resultant penalties.
Section 17‑Participation in tenders
Section 18‑Public collections
Section 21‑Care of public property
Section 26‑Gainful employment
Section 30‑Falsifying documents
8. Proceeds of Crime and Anti-M oney Laundering Act (2009)This act provides for the offence of money laundering and to introduce measures for combating
the offence, to provide for the identification, tracing, freezing, seizure and confiscation of the
3National Council for Law Reporting, The Constitution of Kenya 2010: Chapters Two, and Six.
4Kenya Law Reports,

http://www.kenyalaw.org>:Laws of Kenya, The Leadership and Integrity Act.

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proceeds of crime, and for connected purposes.
9. The Witness Protection Act (2008)
Provides for the procedure of protection of witnesses and informants
B. Procedure for Reporting Corruption and Economic Crimes
Complaints are received and processed by the commission,so as to determine the steps to be taken
which can be advisory,referral to other agencies,or taken up for investigations.The commission has
24-hour dedicated lines for public complaints and standby officers to act on the complaints received.
The commission can on its own motion through the intelligence department covertly access information touching on corruption malpractices and take it up for investigation.The Commission has enlisted
the support of other government agencies such as the National Intelligence Services and the Financial
Reporting Centre (Financial Intelligence Unit).The National Intelligence Service is required by law topass any suspicious covert information on corruption to the Ethics and Anti-Corruption Commission
for action and information on any other form of crime to the police. The financial reporting centre
passes information on any suspicious financial transaction to the Ethics and Anti-Corruption Commission for action.Such suspicious transactions could be proceeds of corruption being laundered.In suchcases the commission institutes recovery proceedings.Whistle-blowers can also be a source of information to the commission, and Kenya has a functional witness/whistle-blower protection agency toguarantee safety to such informants.
M any people who come across occurrences of corruption do not report such because of fear of
reprisals, or in the event they report, they feel that nothing will happen to the perpetrators because
corruption is perceived as not being a serious crime. Statistics have shown that the minority of thecomplainants are aggrieved parties in the cases of deals gone sour or worse still people reportcorruption because they have interests in some positions.
C. Investigation of Corruption and Economic Crimes
Once the complaints have been received,assessed and passed for investigations,investigation teams
are assembled to act on them. The complaints or information would fall under sting operations,forensic investigation,asset tracing or intelligence probe/development.Sting-operation cases emanate
mainly from bribe demands and require prompt action.Forensic investigations are carried out on cases
whose foundations mainly lie on documents, witnesses, bank records, data stored in personal computers, or cell phones, videotapes of security cameras and handwriting analysis.These investigations
usually take a lot more time to accomplish. Asset tracing refers to location of properties acquired asa result of corrupt acts. Once such proceeds of corruption are traced, the investigation reports are
passed on to legal experts for recovery and restitution.The intelligence probe involves covert investigations to fill information gaps that cannot be openly obtained.This takes the form of surveillance orgeneral human intelligence collection. Intelligence reports prepared are passed on to investigators to
backup evidence and for use in recovery proceedings.
Various challenges are faced during investigations,especially accessing electronic evidence such asdata stored in personal cell phones.The information law allows the mobile telephone service providers
to store communications data for up to a period ofthree months only.This therefore means that crucial
data which is over three months old may not be accessed for evidential value.Additionally,most of theprivate institutions such as the banks are unwilling to divulge suspicious financial transactions becauseof the confidentiality relationships between the banks and their clients.However,this hurdle has been
resolved by the recent formation of the Financial Reporting Centre,which is by law required to reportsuspect financial transactions to law enforcement agencies.
D. Crime Reading/Evidence Analysis
Once case files are ready, they are forwarded to crime readers (legal experts) for review. The
evaluation of evidence is geared towards establishing the strength of the evidence against charges
recommended by the investigators. All the files emanating from string operations, forensic investigation and asset tracing are crime read.If the crime readers are satisfied with the report laid before themby the investigators,then they forward the same to the Director of Public Prosecution for legal action.
In the event of civil recovery, they initiate the proceedings in court. The government through the232

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Commission has a plea bargaining arrangement,where suspects of corruption and economic crimes areallowed to plead guilty and surrender the proceeds of corruption in lieu of criminal prosecution.
E. Handling of Recovered Proceeds of Corruption
The anti-corruption laws guide the administration of recovered proceeds of corruption. Once
recovered, such properties are surrendered to the Principal Secretary Treasury, who is the custodianof all government properties. If the said property is a fixed asset such as land,the title will be issued
in respect of the Principal Secretary Treasury, and restored back to the public institution for theoriginal intended use. If it is in form of money, the proceeds are ploughed back into the government
budgetary allocations.
F. Prevention of Corruption
The Commission is also charged with the responsibility putting in place strategies to prevent
corruption. It does so by examination/audit of financial, procurement systems and procedures with aview of sealing loopholes exploited by corrupt officials. However, because of the deep nature ofcorruption in Kenya,most institutions do not follow the recommendations to seal such loopholes.The
commission also has the duty of approving codes of ethics for public institutions and enforcing thesame. The challenge here is that the commission is small in numbers and cannot enforce all codes
effectively. Additionally, the commission engages in public campaigns to enlist the support of thegeneral public and encourage them to report all forms of corruption.
G. M utual Legal Assistance
The United Nations Convention against Transnational Organized Crime (UNTOC)5 recognizes
corruption as one of the Serious Transnational Crimes. Perpetrators of corruption and economic
crimes in most cases hide and launder their proceeds away from their home country for fear of being
pursued by state law enforcement agencies.This complicates the investigation and restitution of suchproceeds, and therefore close cooperation between partner states becomes necessary. Between 1990
and 2005, mega scandals rocked Kenya in which the country lost substantial financial resources
bringing the economy into its knees.Some of the key players in these scandals were foreigners;and to
make it worse the proceeds were stashed in foreign jurisdictions.The Commission attempted to pursue
the foreign evidence and trace the proceeds but hit a dead end because of lack of enabling procedureof cooperation.
Under Article 13 of UNTOC,States Parties are required to cooperate for the purposes of providing
necessary evidential support and confiscation of the proceeds of corruption. The instrument for suchcooperation is M utual Legal Assistance (MLA), which is the internationally accepted practice ofaccessing such assistance. The hurdle has since been done away with since the M LA Act was passedby the Kenyan Parliament in 2011 and took effect immediately.The government of Kenya through its
various agencies such as the Ethics and Anti-Corruption Commission now enjoys the benefits of suchcooperation and has recently received assistance from the Government of Japan and several European
countries.

II. PUBLIC PRIVATE SECTOR COOPERATION IN FIGHTINGCORRUPTION
A. M easures to Prevent Corruption Involving the Private Sector and to Enhance Accounting and
Auditing Standards
Article 12 of UNCAC6 requires each State Party to take measures, in accordance with the fundamental principles of its domestic law, to prevent corruption involving the private sector, enhanceaccounting and auditing standards in the private sector and, where appropriate, provide effective,
proportionate and dissuasive civil,administrative or criminal penalties for failure to comply with suchmeasures.
5United Nations Conventions against Transnational Organized Crime (UNTOC)

http://www.unodc.org/documents/treaties/UNTOC/TOC%20Convention/TOCebook-e.pdf>.
6United Nation Convention against Corruption (UNCAC),

http://www.unodc.org/documents/treaties/UNCAC/Publications/08-50026 E.pdf>.

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Experiences have revealed that major scandals are executed with help of private sector players
which include but are not limited to banking institutions, lawyers, accountants, auditors, valuers,
engineers and investment agents.In Kenya the legal professionals are known to be the main players inaiding the corrupt and facilitating proceeds of corruption flight by assisting the opening of foreign
accounts as trustees. They usually cite lawyer-client confidentiality clause whenever pressured todisclose the transactions of their clients.
Engineers are another lot of private persons who play around with engineering designs to defraud
government of huge sums of money.The accountants and auditors too can detect a malpractice and failto report if compromised. All these professions have associations which regulate their conduct in the
discharge of their duties. Kenya, by the the Law Society of Kenya Act, regulates the conduct ofpracticing lawyers who must be members of the Law Society of Kenya (LSK). The consequences of
misconduct by errant lawyers, like conspiracy to defraud the public and other private persons, ispunishable by penalties defined in the LSK act (which may include debarment) as well as the otherprevailing laws.The Engineers Board of Kenya regulates the professional activities of engineers under
the Engineers Act of 2012. The Institute of Certified Public Accountants regulates accountants andauditors. The Commission has partnered with these professional associations to help foster the fightagainst corruption.Another association that is important in the fight against corruption is the Bankers
Association (umbrella body for banks) which has been assisting the commission accessing details of
suspect accounts and banks which are suspected to be engaged in money laundering.It also reprimands
banks engaged in money laundering activities and passes the same information to the Central Bank of
Kenya, which registers and supervises all the banks. A bank which is suspected to be engaged in any
malpractice including laundering proceeds of corruption risks cancellation of its banking license andtherefore closure.
B. M easures to Promote Civil Society, Community-Based and Non-Governmental Organizations
The right to information given under the Constitution of Kenya 2010 has opened up all governmenttransactions for scrutiny by any interested parties. This has enabled civil society, community-based
and non-governmental organizations to play a vital role in the fight against corruption. These canmobilize the general citizenry to rise against corrupt individuals as well as whistle-blowing. M ost of
the mega scandals have been unearthed by these organizations. The Commission has partnered withthese organizations in order to create a strong force against corruption. Transparency International(TI)Kenya Chapter is one such civil society organization which has been critical in the fight against
corruption in Kenya.Through their research wing they are able to identify areas prone to corruption
and pass the same information to the relevant agencies for action.The National Taxpayers Association (NTA) is a community-based organization that monitors the use of devolved funds in Kenya.
Through their proactive mode of operation they have managed to pass information of suspected
corrupt activities leading to pre-emptive action by anti-corruption agencies.
However, the ability of some civil society institutions to rise against corruption has in the recent
past been eroded because of infiltration by moles working for the corrupt. Corruption has also eaten
into their moral fabric and most of them have been compromised.Efforts are being made to strengthenthem.
C. Cooperation between National Investigating and Prosecuting Authorities and Private Sector
Authorities
National investigating and prosecuting agencies should first and foremost cooperate among themselves and then bring in the private sector such as financial institutions. If the investigation andprosecuting authorities do not cooperate,then the fight against corruption will be severely impaired if
not lost completely.One of the greatest challenges in Kenya is the failure of these two key institutions
which plays out in form of turf wars and blame game when cases are or when they become difficult tohandle. There have been calls by concerned Kenyans to grant the Commission prosecutorial power
which has been fiercely opposed by the Directorate of Public Prosecutions and other stakeholders inequal measure. Several cases have been lost to the advantage of the corrupt suspects. Attempts for aclose working relationship between the two institutions is in the works, and recently held workshops
to map out strategies for enhancing collaboration and coordination in the investigation and prosecutionof corruption and economic crimes.

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Cooperation with financial institutions is crucial for the purposes of passing information of suspecttransactions to law enforcement agencies as well as preserving evidence. Proceeds of corruption areusually concealed in financial institutions, and they have a duty to be able to report and facilitate
freezing whenever required to do so by authorities including courts.According to article 39 of UNCAC,
cooperation between prosecutors and law enforcement agencies on the one hand and the financial
institutions on the other is supposed to break barriers brought about by bank secrecy.

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STATUS OF THE UTILIZATION OF THE PRIVATE SECTOR IN THE
FIGHT AGAINST CORRUPTION IN KENYADavid Gathii

I. INTRODUCTION
Corruption in Kenya, like in all other parts of the world, remains a major challenge. Studies
undertaken by local and international organizations releases credible reports indicating Kenya isamong the countries in the world badly affected by corruption. In response, Kenya has adopted amulti-pronged approach to the fight against corruption.

II. UNITED NATIONS CONVENTION AGAINST CORRUPTION
On 9 December 2003 when the United Nation Convention against Corruption (UNCAC)was opened
for signature in Merida,Mexico,Kenya became the first country in the world to sign and simultaneously ratify UNCAC.This strengthened the fight against corruption and the country has continued to put
in place measures, both within and outside the purview of UNCAC, to address and mitigate anticorruption.Kenya undertook a gap analysis on the implementation of UNCAC and presented a reportduring the International Conference held in Doha, Qatar in 2010. It is also currently preparing its
country report for the peer review slated for 2014.

III. THE FIGHT AGAINST CORRUPTION IN KENYA
The war against corruption in Kenya is Government driven. While fighting corruption dates backbefore independence in 1963,it was not until 2003 when serious efforts began.Keyamong these included
the following:
A. Legal Reforms
Enactment of various laws critical to the fight against corruption such as the Anti-Corruption
and Economic Crimes Act, 2003, Public Officer Ethics Act, 2003;Code of Conduct for PublicServants,Public Procurement and Disposal Act ,2005 and Rules,2006;Anti-MoneyLaundering
Act (which created the Financial Reporting Centre)
Establishment of anti-corruption agencies
Appointment of Special Magistrates to try corruption cases
Establishment of a Cabinet Committee on Anti-Corruption
Strengthening prosecutions and undertaking reforms in the public service
To augment the above legal initiatives, the Government also embarked on a nationwide sensitization and awareness creation campaign aimed at changing the behaviour and attitudes of the people
towards corruption to prevent corruption.
B. Enactment of the Constitution
Kenya promulgated a new Constitution in 2010, which has various provisions that boost the fightagainst corruption;key among them are the following:
Acting Director, National Anti-Corruption Campaign Steering Committee, Kenya.

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PARTICIPANTSʼPAPERS(i)National values (art 10)(ii) Access to information by the public (art 35)(iii) Ethics and Anti-Corruption Commission (art 79)(iv) Independent Judiciary (art 160)(v)

Auditor General (art 229)(vi) Public Service Commission (art 233)
(vii) Police obligated to fight corruption (art 244)
C. Anti-Corruption Agencies
The Government established anti-corruption agencies and continues to support and facilitate themto implement various anti-corruption strategies and activities. The Ethics and Anti-Corruption Commission (EACC) is the national institution dedicated to deal with corruption through enforcement,
prevention and education while the National Anti-Corruption Campaign Steering Committee (NACCSC) undertakes the nationwide sensitization and awareness creation campaign. These two anticorruption agencies (ACAs) have been granted substantial requisite autonomy to discharge theirmandates.Other key organizations critical to the fight against corruption include the National Police
Service, Kenya Revenue Authority, Auditor General, Director of Public Prosecutions. The following
are the approaches to the fight against corruption:
1. Investigations
EACC is the body set up to enforce the law through receipt of complaints,detection,investigation
and assets tracing.EACC also recommends to the Director of Public Prosecutions cases where there issufficient evidence of wrongdoing.
2. Prevention
EACC undertakes system and procedure audits to identify loopholes, corruption risk assessment;
and development of anti-corruption plans and codes of conduct for publicly funded institutions and,upon request, for private firms. It also conducts the Public Service Integrity Programme to train
Integrity Assurance Officers who then spearhead the formation and facilitation of M inisterial/Departmental Corruption Prevention Committees.
3. Education
EACC discharges its education mandate through the development of the anti-corruption education
curricula for primary,secondary and tertiary institutions,sponsorship of the anti-corruption category
in the annual national drama festivals for schools and colleges in Kenya,establishment and sustenanceof Integrity Clubs in schools and educating the public on the dangers ofcorruption and to foster support
for EACC. It also undertakes research and corruption perception index studies.
4. Anti-Corruption Awareness Campaign
The awareness campaign mainly targets the ordinary Kenyan citizen who is on the supply side of
the corruption equation. The war against corruption cannot be won without the support and active
participation by the members of the public.The campaign is implemented by NACCSC in partnershipwith various stakeholders such as civil society, religious organizations, youth and womenʼs groups,
among others. Key interventions include multi-media anti-corruption programmes through television,
radio including community radio,print media,Internet and social media;conducting capacity building
and sensitization seminars, workshops, religious forums and rallies; undertaking social audits andpublic-reporting forums on projects and programmes funded by the tax payer.
Others are advocacy campaign programmes such as marking the UN International Anti-Corruption
Day on 9 th December every year and organizing national Prayer Days for religious organizations;anti-corruption music,production and distribution ofInformation,Education and Communication (IEC)237

RESOURCE MATERIAL SERIES No. 92
materials such as banners, brochures, caps, t-shirts; establishing civilian oversight committees toreceive complaints and address corruption issues at the grassroots and generating credible data to
inform and affirm campaign strategies and activities through research/studies on corruption.

IV. IM PLEMENTATION OF UNCAC
Kenya has been implementing the UNCAC and the following is the status of the provisions ofarticles 12, 13 and 39 of the convention:
A. Article 12 ― Private Sector
Article 12 requires each State Party to UNCAC to take measures to prevent corruption involving
the private sector, enhance accounting and auditing standards in the private sector and provide
effective,proportionate and dissuasive civil,administrative or criminal penalties for failure to comply
with such measures. The following is the progress on the implementation:
1. M easures to Prevent Corruption in the Private Sector
The private sector in Kenya is well developed and the Government has made big strides in involving
the sector in the fight against corruption mainly through the umbrella body Kenya Private Sector
Alliance (KEPSA). Corruption in the private sector pushes up the cost of doing business and may, inthe extreme deny firms business. The following measures have been implemented:(i)

KEPSA is one of the agencies that implement the National Anti-Corruption Plan (NACP)
under the Kenya Integrity Forum (KIF)through the Association of Professional Societies ofEastern Africa (APSEA) and Institute of Certified Public Accountants of Kenya (ICPAK).
These professional bodies regulate the conduct of their members which is important in thefight against corruption.

(ii) All companies listed at the Nairobi Stock Exchange (NSE) are regulated by the Capital
M arkets Authority(CMA)Act,Cap 485A and Regulations,2009.They are required to publish
half and full year audited reports in the local dailies as well as display them in conspicuous
places.
(iii) ACECA was amended in 2007 by deleting the words “public officer”from section 55(2)so thatproceedings may be commenced against persons whether in public or private sectors.
(iv) The Public Procurement and Disposal Act (PPDA), 2005 prohibits any person from engaging
in corrupt practices in the procurement process and outlines the penalties for such offences.
Specifically, private individuals are debarred from government tendering process on accountof having been convicted by a court of law on a corruption case.
(v)

The Kenya Revenue Authority (KRA) introduced Electronic Tax Register (ETR) System
which has substantially reduced incidences of corruption within the tax regime.

(vi) The Centre for Corporate Governance trains private companies on proper corporate governance including development of necessary instruments.
2. Implementation Gaps
The following gaps have been experienced during implementation:(i)

Lack of laws that expressly disallow tax deductibility of expenses that may constitute bribes(ii) CMA Act is limited to companies that are listed in NSE while strict enforcement of theCompanies Act is weak by provision that directors may appoint nominees to take their places
and can then trade with the same companies.
(iii) The Companies Act is outdated and does not address the emerging issues such as good
governance, information technology and corruption risk management, among others.

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PARTICIPANTSʼPAPERS(iv) The provisions under ACECA do not specifically tackle corruption in the private sector.
(v)

Cooperation between law enforcement agencies and the private sector entities is weak.

(vi) Internal audit controls are insufficient and,at times,optional.There are no structured internal
corruption reporting mechanisms in the private sector.
(vii) Enforcement of most codes of conduct lacks the backing of the law and heavily relies on the
goodwill of members.
(viii)There is ineffective monitoring of public disclosure requirements in corporate entities.
(ix) Stakeholders awareness on existing anti-corruption measures like Codes ofConduct is still low
in the private sector(x) Ineffective mechanism to monitor abuse of procedures regulating private entities(xi) There is lack of effective enforcement of the existing legislation.
3. Recommendations(i)

M ore efforts should be put to curb corruption in the private sector.Such measures mayinclude
development and adoption of codes of conduct and best practices.

(ii) Public sector anti-corruption measures, especially prevention, should be replicated in theprivate sector(iii) Criminal sanctions should be imposed against companies and their officials found to haveengaged in corruption should.
(iv) Companies should develop corruption prevention measures and internal reporting mechanisms(whistle blower system)(v)

The Companies Act should be reviewed to incorporate provisions that will prevent corruption
and reflect current best practices.

(vi) The partnership between the Government and the private sector through the Public Private
Partnership (PPP)should be strengthened and focused on fighting corruption.
(vii) KEPSA should establish an ethics committee to mainstream ethics and integrity in thecontinuous professional development and enhance transparency in the private sector to limit
the sectorʼ
s engagement in corruption.
(viii)The private sector should propose a regulatory mechanism to enforce ethics and integrity
within its membership.
(ix) There should be no discretion by public officers in the regulation of private entities(x) The relevant laws to address the problem of bribes and other acts of corruption treated as
expenses;fraud and financial malpractices should be reviewed.
(xi) Provisions for the disclosure of accounting scandals in the private sector camouflaged indifferent terms are introduced as is disallowing bribes treated as tax deductible expenses.
B. Article 13 ― Participation of Civil Society
Each State Party is expected to take appropriate measures,within its means and in accordance with
fundamental principles of its domestic law, to promote the active participation of individuals and

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groups outside the public sector,such as civil society,non-governmental organizations and communitybased organizations (CBOs), in the prevention of and the fight. Kenya has a vibrant civil society andnon-governmental organizations that operate freely without undue control by the Government. They
are free to organize activities, including those that are critical to the Government as well as toparticipate in all public events during which they can air their views.
1. M easures to Promote the Active Participation of Civil Society and Others(i)

Civil society is one of the sectors recognized by KIF to implement the NACP(ii) Societies Act provides for the formation and participation of civil societies to carry out
various activities including public education while the NGO Act regulates the formation of
Non-Governmental Organizations (NGOs).
(iii) Anti-corruption agencies have developed and implemented community based anti-corruption
awareness programmes with the civil society targeting local communities to enlist theirsupport in the fight.
(iv) The Office of Public Communication (Government Spokesman)holds weekly media briefings
on matters of public interest.
(v)

EACC and civil society, and academia are in the process of developing and formalizing
anti-corruption curricula for schools, tertiary institutions and universities(vi) The Public Service Week is held annually and allows members of the public to visit andinterrogate various Government Ministries/Departments stands showcasing their work.
(vii) The Statute Law Miscellaneous (Amendments)Act,2007 allowed the members of the public toaccess wealth declarations upon applying to the relevant Responsible Commission.
(viii)Civil society,religious organizations and non-governmental organizations have representationin NACCSC which affords them opportunity to fight corruption.
2. Implementation Gaps
During the implementation of UNCAC, a number of shortcomings have been detected. These
shortcoming or gaps impact negatively on the ability of the civil society and NGOs to effectively
unleash their full potential to fight corruption and check the excesses and impunity of the Government.
The following are some of the gaps that have been identified:(i)

Inadequate legal framework for civil society engagement and participation in the fight against
corruption in Kenya.

(ii) The Official Secrets Act curtails the release and access of information to the public.
(iii) There is no mechanism for accountability and transparency in the operations of the civilsociety.
(iv) There is no structured platform for collaboration between the Government and civil society.
(v)

Lack of adequate funding for civil society to effectively engage in anti-corruption activities.

(vi) There is widespread corruption within the rank and file of the civil society(vii) The electronic whistle blower system (website) for anonymous corruption reporting is only
accessible to members of the public who have access to the internet and,therefore,ineffective.

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3. Recommendations
Arising from the shortcomings listed in (b) above, the following are suggested possible solutions
which may help address those problems and ensure that the civil society, NGOs and individuals
contribute to the fight against corruption in the country:(i)Engagement between the Government and civil society should be changed from confrontational to collaborative and cascaded to all levels of policy and decision making(ii) There is need to intensify the community-based anti-corruption programmes(iii) Funding the civil society groups, NGOs and CBOs from the exchequer should be considered.
This will enable these groups effectively fight corruption both in and outside government andwatch over the resources the Government spends on behalf of the public(iv) Civil society should address the problem of endemic corruption within ranks by embracing thetenets of transparency, accountability and integrity in all its operations and finances(v)

The NGO Coordination Board should consider starting to publish the audited accounts of allNGOs in Kenya as the first step towards fighting corruption(vi) The Freedom of Information bill should be enacted to facilitate the public access information
including that which touches on corruption in the public service.
(vii) Public institutions should promote an open door policy and employ participatory methods inthe conduct of their affairs so that the public is informed of decisions affecting them.
The recommendation on freedom of information, if implemented, will improve the corruption
reporting system which currently stands at 42.2% as per National Corruption Perception Survey of
2011.
4. Article 39 Cooperation Between National Authorities and the Private Sector(a) Measures Taken to Facilitate Cooperation with the Private Sector(i)

Legislation under section 12 (1)of ACECA provides for cooperation with other bodies.

(ii) EACC and NACCSC have, through various public education programmes, been encouraging
people to report all forms of corruption.
(iii) EACC has installed an electronic system for reporting of corruption anonymously.
(b)Implementation Gaps(i)

Insufficient compliance with the obligations of this Article because of weak cooperation
between the anti-corruption agencies.

(ii) Campaigns and sensitization programmes do not cover all parts ofthe countryparticularlythe
far removed areas(iii) Accessibility to anti-corruption bodies by the public at the grassroots level is limited(iv) Inadequate access and utilization of the anonymous reporting facility due to infrastructural
challenges and lack of awareness.
5. Recommendations(i)

Develop rules of engagement between anti-corruption agencies and private sector entities.

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RESOURCE MATERIAL SERIES No. 92(ii) Expand the awareness programmes to all parts of the country and translate IEC materials into
local languages.The presence of anti-corruption bodies at the grassroots should be increased.
(iii) Undertake a campaign to enhance reporting of corruption cases.

V. ANALYSISThe positive steps that Kenya has taken to implement UNCAC,with a measure of success,and the
new Constitution provides the country with special opportunities that boost the fight. Once fully
implemented, the Constitution will augment UNCAC in fighting corruption and all its manifestations.
It will promote transparency and accountability in the management of public affairs and effectively
reduce corruption in all sectors of the economy.
There is, however, need to develop better collaborative efforts between the public and private
sectors given that the two constitute the demand and supply sides of the corruption equation. The
private sector must stop shying from participating in the fight against corruption particularly inreporting corruption and it is only then that the sector will be able to increase their profits.The samecan be said about the civil society,NGOs and CBOs which are expected to not only generally keep theGovernment on its toes but to specifically police the utilization of public funds.To this end,the sector
should be encouraged to first exorcise corruption from its organizations so as to gain the moral groundto deal with corruption in the public sector.

VI. CONCLUSION
The fight against corruption in Kenya is Government driven. The Government must, of necessity,
go out of its way to prompt, pursue and facilitate the participation of the private sector, and civilsociety in the fight against corruption.Further,it should continue to facilitate and provide leadershipin the implementation of the UNCAC to achieve the desired goals,guarantee provision of resources tofight corruption and bring on board the public to actively participate in the war. Overall, Kenya haslargely complied with the provision of the UNCAC articles 12,13 and 39.There is,however,still a lotof work to be done before the fruits of the fight against corruption can be realized.
References
Ethics and Anti-Corruption Commission, National Corruption Perception Survey, 2011, Government
Printer, Nairobi, 2012.
Kenya Government, Constitution of Kenya, Laws of Kenya, Government Printer, Nairobi, 2010.
Kenya Government, GAP Analysis: United Nations Convention Against Corruption, Government
Printer, Nairobi, 2009.
Kenya Government, Kenya Vision 2030: A Globally Competitive and Prosperous Kenya, Government
Printer, Nairobi, 2008.
Kenya Integrity Forum,National Anti-Corruption Plan Implementation Progress Report -July 2010 ―June 2011, Government Printer, Nairobi.
Kenya Government, Anti-Corruption and Economic Crimes, Act 2003, Government Printer, Nairobi,
2003.
Kenya Government, Public Officer Ethics Act 2003, Government Printer, Nairobi, 2003.
Kenya Government, The Public Procurement and Disposal Act, 2005, Government Printer, Nairobi,
2006.
Transparency International, 2008 International Corruption Perception Index, Berlin, 2008.

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Transparency International, 2012 Transparency International Corruption Perception Index, Berlin,
2013.

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INDIVIDUAL PRESENTATION PAPER
Oleg Crismaru

I. INTRODUCTION
Corruption remains among the top concerns of the population of the Republic of M oldova, being
fifth after the problems which follow immediately the issues related to the survival of the individual
and his family.1 According to Transparency International Moldova,the Global Corruption Barometer2 shows that two thirds of Moldovan respondents argue that corruption is a serious problem affecting
the public sector and 64% reveal that institutions are ʻ
capturedʼby private interests groups.
Justice and police are considered the most corrupt institutions in M oldova,which is followed by the
Parliament and political parties. 55% of respondents considered ineffective M oldovan government
efforts in combating corruption,and 54% of respondents claim that ordinary people can contribute to
the fight against corruption, and about half of them are willing to denounce corruption.
Recently,public awareness of the threat posed by corruption has increased.If 10 years ago the mainpart of respondents considered poverty as the main cause of corruption, at present two thirds of the
respondents understand that corruption causes poverty. The share of households that understand theimpact of corruption on poverty increased from 56.8% in 2008 to 66.9% in 2012.Among business people,
their share increased from 57.1% in 2008 to 63.5% in 2012.
A survey conducted by Transparency International-M oldova3 determined the institutions where
unofficial payments are made most frequently.
Frequency of bribes offeredby business 2012, %Frequency of bribes offered
by individuals 2012,%

Total amount of bribed estimated 〜 31,2
million USD (＋49% compare to 2008)

Total amount of bribed estimated 〜 58,6
million USD (＋15% compare to 2008)

Senior Criminal Investigative Officer of the National Anti-corruption Center, Republic of M oldova.
1National AntiCorruption Strategy 2011-2015 approved by the Decision nr. 154 from 21 Jul. 2011 of Parliament of

Republic of M oldova published in Official M onitor nr.166-169/483 from 07 Oct. 2011.
2＜http://www.transparency.md/content/view/1825/49/lang,en/＞.
3Sociological Study Corruption in Republic of Moldova 2012:Perceptions vs. Personal Experiences of Households andBusiness People conducted by Transparency International-M oldova with the support of the U.S. State Department andin collaboration with the Center for Sociological Studies and Marketing “CBS-AXA”.

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According to the calculations,the total amount ofbribes paid byhouseholds made in 2012 was about
732.7 million Lei, increasing in absolute terms, compared to 2008, by over 15%.
Households ― Evolution of Total Bribes (M ill. Lei)
2005

2007

2008

2012

Police

81.5

79.9

97

45.4

Education

126

76.5

64

185

Health care

200

153

190

238

Other

493.6

280.6

279

264.3

TOTAL

901.1

590

630

732.7

The total amount of bribes paid by businesses in 2012 amounted to about 390 million Lei,increasing
by approximately 49% compared to 2008. The main payments were made to the customs officers (75million Lei),health care institutions (41.6 million Lei),police (41 million Lei)and fiscal inspectors (32.4
million Lei).
Estimated Total Bribes:Businesses, Mill. Lei
Customs75

Health care system

41.6

Police41

Fiscal inspectorates

32.4

Fire inspectors

31.8

The evolution of the estimated total amount of bribes paid by businesses shows 150% growth of thisindicator compared to 2008, which cannot be explained only by inflation and, essentially, proves aworsening of the business environment in M oldova.
Businesses ― Evolution of Total Bribes (Mill. Lei)

Conclusions of national and international reports and studies outline the following problems andsectors vulnerable to corruption: lack of a stable anti-corruption legal framework, coherent andadjusted to international standards;lack of efficient mechanisms of law enforcement;reduced use ofadministrative instruments of preventing and combating corruption; low level of confidence of the
population in the performance of the law enforcement agencies; activity of the state and politicalinstitutions which is not sufficiently transparent;lack of transparency in public procurement;insufficient budgetary resources for proper activity of authorities entitled to protect the legal norms and the
judicial system;insufficient anti-corruption education and training of public officials and population;
absence of sector studies which would reveal the magnitude of the corruption phenomenon.

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Paying particular attention to Effective Measures to prevent and Combat Corruption and to encourage Cooperation between the Public and Private Sectors,I will cover the main issues related to cooperation between these two sectors as follows.

II. ANTI-CORRUPTION LINES
Anti-corruption lines are effective tools for preventing and combating corruption and encourage
cooperation between the public and private sectors as they allow population to report acts of corruption or abuse of civil servants in the time of their commission. Hotlines protect the identity of thewhistle-blower if he /she does not intend to disclose it and allow civil society to be consulted on theissues faced in dealing with public authorities. M ost ministries and state agencies in the Republic of
M oldova have hotlines,but their names differ from one institution to another (hotline,anti-corruptionline, green line). The working hours of anti-corruption hotlines, as a rule, coincide with the working
hours of the institutions concerned. The hotline of main authority in the field of preventing andcombating corruption is the National Anti-corruption Centerʼs 24-hour working regime.
M ost institutions provide satisfactory visibility of the phone number of anti-corruption line,either
by placing it on the homepage of the institution website, or by creating a separate section “
Anticorruption”on the site.However,there are cases when the hotline numbers are difficult to be found on
the site and at the Ministry of Justice anti-corruption phone number can be found only in the ministerʼsantechamber.
Hotline activity issues are related to insufficiency of anti-corruption hotline regulations,failure in
ensuring high dissemination among society regarding existence of hotlines,visibility of phone numbersof anti-corruption hotlines on web pages and information boards, lack of skilled staff in charge ofcommunication with citizens able to ensure proper functioning of anti-corruption lines.

III. REPORTS OF FINANCIAL INTELLIGENCE UNITS
Another efficient instrument of cooperation between the public and private sectors is related to
information about suspicious transaction reports from Financial Institutions to Financial Intelligence
Units. This partnership is regulated through the adoption by the Republic of M oldova of the Law on
preventing and combating money laundering and financing of terrorism from 26 July 2007.4 According
to this law, financial institutions are required to inform immediately the Office for Prevention andFight Against M oney Laundering of the National Anti-corruption Center on any activity or any
suspicious transactions of money laundering and financing of terrorism in preparation,implementationor already completed. Also the Office for Prevention and Fight Against M oney Laundering analyzes
all activities or transactions in cash with a value of at least 100 thousand Lei or by transfer with anamount of 500 thousand Lei and higher made in Moldovan banks.In case ofsuspicious transactions,thematerials are delivered to the prosecution body of the National Anti-corruption Center for further
investigations.

IV. DECLARATION OF INCOME AND PROPERTY
An efficient tool for civil society monitoring of public servants integrity during their public activity
serves mandatory declaration of income and property of people with public positions,judges,prosecutors, civil servants and persons with public responsibility.
According to the law,declaratory entities are required to declare on oath,income and property ofincome through the Declaration ofincome and propertywhich shall be in writing and represent a public
document. Correctness control of the declarations of income and property shall be performed by the
National Integrity Commission in accordance with Commission Regulation approved by Parliament.If
subjects intentionally indicated in the declaration inaccurate or incomplete data they carry liability
under art. 3521 of the Criminal Code of the Republic of M oldova.

4Published 07 Sep. 2007 in Official M onitor of the Republic of M oldova Nr. 141145.

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It should be mentioned that because of parliamentary debates on the appointment of the membersof National Integrity Commission, the activity began only in late 2012. At present the Commissionʼswork is seriously hampered by the existing legal framework,which limits its powers of investigation,by lack of staff and delays in submitting statements by the declaratory entities. Also the enacting of
the criminal liability for illicit enrichment is hampered by different opinions among the politicalparties. A novelty in the legislation of the Republic of Moldova is introducing of integrity tests andlifestyle monitoring of the National Anti-corruption Center staff.

V. INSTITUTION OF WHISTLE-BLOWERS
By Law Nr. 277 of 27 December 20115 whistle-blower institution was established and relevant
provisions of the Law on Preventing and Combating Corruption and the Code of Conduct for Civil
Servants have been filled in this regard.The law defines whistle-blower as a public official who learned
about acts of corruption and those related to corruption,acts of corrupt behaviour and communicatesthem to the criminal investigative body, Prosecutor, NGOs and the media.
The law establishes three measures to protect whistle-blowers, and failure in protection measuresof public servant are punished under the Contravention Code with a fine of up to 3,000 M oldavian Lei.
At the moment the outcomes of this institution are not yet visible due to the lack of public servants
information and lack of promotional campaign of this institution. Therewith, previous practice has
shown that whistle-blowers reports usually caused negative consequences for those who report,somewere even prosecuted started or arrests, some were dismissed or forced to resign.

VI. CRIMINAL PROCEEDINGS
Criminal proceedings consist of the activities of the criminal investigative bodies and the courts,in
which parties in criminal cases and other individuals participate and that are conducted in line with theprovisions of the Criminal Procedure Code. Criminal procedure of the Republic of M oldova admits thefollowing objective data in evidence:expertʼ
s reports;material evidence;transcripts of the criminal
investigation or of judicial inquiry;documents (written,audio,video);audio and video recordings andpictures; technical, scientific, medical and forensic reports; procedural documents that record theresults of following special investigative measures:audio and video recording;supervising the home byusing technical means providing registration;the interception and recording and images; retention,
research,teaching,or lifting searching mail,monitoring telegraph connections and electronic communications;monitor and control financial transactions and access to financial information;documentationof methods and technical means and locating or tracking by global positioning system (GPS) or byother technical means; collection of information by electronic communication service providers;
identifying the subscriber,the owner or user ofan electronic communication system or a point ofaccessto a computer system; visual tracking; control the transmission of money or other tangible assets
extorted;undercover investigation;cross-border supervision;controlled delivery;collecting samples forcomparative research; examination of objects and documents; acquisition of control; questioning;collecting information about people and events;identifying of persons.
The procedure of acquiring of evidence is strictly regulated by the Criminal Procedure Code, andit can be performed only in written form (by means of orders and transcripts of the criminal investigation or of judicial inquiry)and is strictly related to the gravity of the investigated crime and rights andfreedoms of the participants of the proceedings.
Collection of evidence that intrudes on the privacy of a person or his or her domicile, the privacyof correspondence, telephone or electronic conversations, telegraphic or other communications, state,
trade or banking secrets and other actions provided by law,should be authorized by the investigative
judge. Other evidence should be collected by the order of the prosecutor or criminal investigative
officer.

5Published 03 Feb. 2012 in Official Monitor of the Republic of Moldova Nr. 2528.

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The major problem that Moldavian investigative bodies have to face is the requirement of completing wiretapping or other means within a period of48 hours.After the expiryofthis term,the prosecutor
must bring charges against the suspect. This situation exists from October 2012, due to the gap oflegislation performed by the Parliament,and it has remained unrepaired till now.This gap of legislation put the investigative bodies specialized in combating crimes of corruption into an impossible
position to collect the most important evidence necessaryfor solving the crimes,identifying ofall crime
participants, bringing charges and conviction of the defendants.
A. Acquiring Suspect Statements
According to the criminal legislation of the Republic of Moldova the suspect is a person whom
certain available evidence indicates committed a crime prior to charges being brought.If according to
law the suspect has immunity from criminal liability, criminal investigative body addresses to therelevant authority notifications related to the withdrawal of personsʼimmunity and the initiation of acriminal investigation against him.Law affords immunityfrom criminal liabilityto the President ofthecountry, deputies, judges and members of foreign diplomatic mission and members of their families.
After his/her designation as a suspect, the suspect shall be interrogated only in the presence of adefence counsel or an attorney providing the legal assistance.The suspect has right to refuse or makestatements on the incriminating suspicion.The investigative body must explain to suspect that refusing
to make statements cannot be interpreted against him/her and warn that statements made by suspect
may be used as evidence against him.Statements of the suspect can be obtained also under the resultsof special investigative measures as electronic surveillance,wiretapping,installation ofappliances thatmonitor and record audio and video, retention, research, teaching, or lifting on searching mail,monitoring telegraph connections and electronic communications or undercover operations.
Criminal legislation of the Republic of Moldova introduced the institution of plea bargaining in
2003. In the case of plea bargaining,punishment provided in the criminal law is reduced by one third.
The Republic of M oldova during the last ten years has harmonized its legislation in accordance with
the international standards regarding the institution of suspects. The main problems related to thesuspect are the poor conditions in prisons, abuses of police officers and prison guards.
B. Acquiring Witnesses Statements
The testimony of a witness is oral or written made during criminal proceeding regarding any
circumstances to be determined in the case of including information about the suspect/accused/
defendant, injured party and his/her relationship with them. The person conducting the procedural
action explains to the witness his/her rights and obligations and warns him/her about his/her liability
for refusing to testify or for deliberately making false testimony.
Art.312 and 313 of Criminal Code establish punishes for false statements by a fine of up to 6,000 Lei
or by community service for 180 to 240 hours or by imprisonment for up to 2 years and for the refusal
or evasion of a witness or of an injured party to make statements, that is punished by a fine of up to
6,000 Lei.
The Criminal Procedure Code and law on state protection of victims,witnesses and other persons
assisting in criminal proceedings provides as measures of protection of witnesses hearing by special
technical means that assure the distortion of the voice;hiding or changing of identity, changing ofresidence or place of work or study,changing of appearance,installing a home alarm system,changing
the phone number and the protection of property.
Current issues regarding the institution of witnesses are the lack of trust of witnesses in law
enforcement authorities concerning the ability to protect them for their testimony made against
defendants.Another problem is the mild punishment for perjury and obstruction of justice,because theprejudices caused by these crimes are more serious then the punishment.

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VII. IDENTIFICATION, TRACING, FREEZING, AND CONFISCATION OF
PROCEEDS AND RETURN AND DISPOSAL OF CONFISCATED ASSETS
Criminal investigative bodies of the Republic of Moldova dispose of sufficient resources for identification,tracing,freezing,confiscation of proceeds and return and disposal of confiscated assets.For themost expensive goods there are electronic registers opened for criminal investigative bodies. Law
provides that a criminal investigative body ex officio or the court at the request of the parties may
undertake during a criminal proceeding measures for securing the recovery of damages caused by thecrime and for guaranteeing the execution of a punishment by fine.M easures for securing the recoveryof damages consist of sequestering movable and real property. The current issues regarding thesemeasures are related to tracing and confiscation of proceeds of crime from bank accounts of theoff-shore companies and recovery of assets from dummy owners.

VIII. PREVENTIVE M EASURES
M oldovan legislative framework in the field of anti-corruption has been considerably extended andimportant laws have been adopted, e.g.:Law from 22.02.2008 on Conflict of Interests,Law from 22.02.
2008 on the Code of Conduct of the Public Servant, Law from 25.04.2008 on Prevention and Fight
Against Corruption,Law from 13.11.2008 on Transparency in the Decision Making Process,Law from
18.12.2008 on Verification of Holders and Candidates to Public Functions, etc. Although these laws
were much anticipated,they showed no effect in the first years after adoption,mainly due to the lackof a clear application mechanisms.Taking into account existence of certain old ineffective regulations,
it is necessary to elaborate and adopt the mechanisms of anti-corruption legislation which would be
effective in the following fields:income and property declaration,control over their origin;declarationof conflict of interests, transparency in the decision making process, gifts, etc.
Also the Republic of Moldova and its international partners provide active financing of anticorruption campaigns (by television, internet, radio, trainings and seminars, etc.). The most known
national anti-corruption campaigns for the last two years were “
You can stop Corruption”,“
Transparent property”,“
Corruption and cancer ― social diseases”,“
Corruption kills education”,“
I do not give ortake bribes”, etc.

IX. EXTRADITION AND INTERNATIONAL COOPERATIONThe Constitution of the Republic of Moldova provides that no citizen of the Republic of Moldova
can be extradited or expelled from his/her country.Foreign or stateless citizens maybe extradited onlyin compliance with an international agreement or under conditions of reciprocity in consequence of adecision of a court of law.In no case shall Republic of M oldova extradite a person who is accused forhis political views or for actions that do not constitute a crime in the Republic of Moldova.According
to the Constitution, the legal provisions on human rights and freedoms are interpreted and applied inaccordance with the Universal Declaration of Human Rights, with the pacts and other treaties, towhich the Republic of Moldova is a party.
Republic of M oldova has adhered to the UN Convention against Corruption, the Criminal Law
Convention against Corruption, the Civil Law Convention against Corruption, the Council of Europe
Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, Directive
2005/60/EC of the European Parliament and of the Council on the prevention of the use of the financial
system for the purpose of money laundering and terrorist financing, and other international treaties.
M utual legal assistance,extradition and information exchange between law enforcement authorities of
the Republic of M oldova and other states are performed by the Division of International Cooperationof the General Prosecutors Office of the Republic of Moldova.

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X. THE CURRENT SITUATIONS AND PROBLEMS OF UTILIZING THE PRIVATESECTOR AND OF COOPERATION BETWEEN THE PUBLIC AND PRIVATESECTORS IN PREVENTING AND COMBATING CORRUPTION;
MEASURES ADDRESSING COOPERATION STIPULATED IN UNCAC
ARTICLES 12, 13 AND 39
The legal framework of the Republic of Moldova contains a sufficient number of regulations
designed to safeguard the integrity of relevant private entities, including codes of conduct for thecorrect,honorable and proper performance of the activities of business and all relevant professions andthe prevention of conflicts of interest, and for the promotion of the use of good commercial practices
among businesses and in the contractual relations of businesses with the State.
Law provides compulsory regulations related to transparency among private entities, procedures
regarding subsidies and licenses granted by public authorities for commercial activities, imposes
restrictions of former public officials or on the employment of public officials by the private sector
after their resignation or retirement.
The tax system also is well regulated and contains sufficient regulations in preventing and detecting
acts of corruption regarding the obligatory maintenance of books and records, financial statement
disclosures and accounting and auditing standards. The Criminal Code punishes such doings asrecording of non-existent expenditures, use of false documents;and intentional destruction of bookkeeping documents earlier than foreseen by the law.

XI. CONCLUSION
The politics on cooperation between the public and private sectors in preventing and combating
corruption are provided by the National Anti-Corruption Strategy6 (2011-2015). According to thisdocument the Republic of M oldova promotes the active participation of individuals and groups outside
the public sector, such as civil society,non-governmental organizations and community-based organizations, in the prevention of and the fight against corruption and to raise public awareness regarding
the existence, causes and gravity of and the threat posed by corruption. The strategy promotes
enhancing the transparency of and promoting the contribution of the public to decision-making
processes;ensuring that the public has effective access to information,undertaking public information
activities that contribute to non-tolerance of corruption, as well as public education programmes,
respecting,promoting and protecting the freedom to seek,receive,publish and disseminate information
concerning corruption.
Despite these policies and legal framework, the cooperation between public and private sectors inpreventing and combating corruption do not bring the expected results. In the Republic of M oldova,
corruption is treated as a form of business,the branches of power are controlled by groups of interests,
there is no transparency in recruitment of the heads of public authorities, and usually these areappointed due to the common business relationships, are in kinship or have other common interests.
Consequently,these groups of interests force the representatives of private sector,to give bribes inorder to survive, because due to economic competition the fulfillment of tax obligations will increase
the price for their goods and services.Consequently government revenue decreases and,hence,the state
is not able to pay for the work of the public employees at a suitable level. In such a way majority ofactive work population have insufficient incomes and are forced for seeking a job abroad.
Taking into consideration the issues mentioned above,following the goal of improving the situationin the field of preventing and combating corruption,the following solutions are proposed:Strengthening the capacity of the National Integrity Commission (liquidation gaps in legal, digitization andprocessing of its electronic information, detailed verification of the candidates for public office,6National AntiCorruption Strategy 2011-2015 approved by the Decision nr. 154 from 21 Jul. 2011 of Parliament of

Republic of M oldova published in Official M onitor nr.166-169/483 from 07 Oct. 2011250

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ensuring that information is exchanged with counterpart institutions in other countries,empower withthe right to start trials for extended confiscation);Strengthening the capacity of the National Anticorruption Center for fighting against high-ranking officials;introduction of criminal liability for making
decisions in situations of conflict of interest; improving the legal framework and establishing aneffective control system of financing political parties and election campaigns;de-monopolization of themedia and facilitating of the access to public television for new political forces;the introduction ofcollective responsibility for members of governmental commissions empowered to spend publicfinances;and increasing collaboration with civil societyin order to development ofintolerance towards
corruption.

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ANTI-CORRUPTION EFFORTS IN MYANM AR
Myo Khaing Swe

I. INTRODUCTION
After the Second World War,there had been poverty in M yanmar.So,the Government supplied thefacilities to the public, and theft and corruption cases relating to those facilities emerged.In order toprevent such cases, the Government formed the Civil Supplies Thefts Preventive Committee on 23
December 1947. M oreover,the Public Property Protection Police (P-4)was also formed and had done
investigations.
A. The Public Property Protection Police
P-4 took action on cases relating to bribery, corruption and failing to serve dutifully of public
servants in accordance with the section 161 to 165 of chapter (9)of Penal Code, 1861.
1. The Provisions of the Penal Code, 1861
The provisions of section 161 to 165 of chapter (9)of the Penal Code, 1861 are as follows:(a) Section 161. Whoever, being or expecting to be a public servant,accepts or obtains,or agrees
to accept, or attempts to obtain from any person, for himself or for any other person, any
gratification whatever, other than legal remuneration, as a motive or reward for doing orforbearing to do any official act or for showing or for bearing to show, in the exercise of his
official functions,favor or disfavor to any person,or for rendering or attempting to render any
service or disservice to any person with the Union Parliament or the Government or with any
public servant, as such, shall be punished with imprisonment of either description for a term
which may extend to three years, or with fine, or with both.
(b) Section 162.Whoever accepts or obtains,or agrees to accept,or attempts to obtain,from any
person,for himself or for any other person,any gratification whatever as a motive or reward
for inducing, by corrupt or illegal means, any public servant to do or to forbear to do any
official act, or in the exercise of the official functions of such public servant to show favor or
disfavor to any person,or to render or attempt to render any service or disservice to anypersonwith the Union Parliament or the Government or with any public servant, as such, shall bepunished with imprisonment of either description for a term which may extend to three years,
or with fine, or with both.
(c) Section 163.Whoever accepts or obtains,or agrees to accept,or attempts to obtain,from any
person,for himself or for any other person,any gratification whatever as a motive or reward
for inducing,by the exercise of personal influence,any public servant to do or to forever to do
any official act,or in the exercise of the official function of showing favor or disfavor to any
person,or to render or attempt to render any service or disservice to anyperson with the Union
Parliament or the Government or with any public servant, as such, shall be punished withsimple imprisonment for a term which may extend to one year, or with fine, with both.
(d) Section 164.Whoever,being a public servant,in respect of whom either of the offences definedin the last two preceding sections is committed, abets the offence, shall be punished withimprisonment of either description of a term which may extend to three years,or with fine,orwith both.
Director, Bureau of Special Investigation, Ministry of Home Affairs, The Republic of the Union of M yanmar.

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PARTICIPANTSʼPAPERS(e) Section 165. Whoever, being a public servant, accepts or obtains, or agrees to accept or
attempts to obtain,for himself,or for any other person,any valuable thing without consideration which he knows to be inadequate, from any person whom he knows to have been, or tobe, or to be likely to be, concerned in any proceeding or business transacted or about to betransacted by such public servant, or having any connection with the official functions ofhimself or of any public servant to whom he is subordinate,or from anyperson whom he knows
to be interested in or related to the person so concerned,shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
2. The Suppression of Corruption Act of 1948
The Government of Myanmar enacted the Suppression ofCorruption Act of1948 separatelyin orderto prevent corruption effectively.There are six sections in the Act,and it had been amended four times
in total. According to section 4(1)of the Anti-corruption Law, 1948:(a) “
If public servants always accept any gratifications, other than legal remuneration from any
person”(b) “
If a public servant takes any valuable thing for himself or any other person from any
proceeding or business to be transacted by him or his superior”(c) “
If a public servant takes any valuable thing or money for him or any other person against thelaw in misuse of his position”(d) “
If a public servant is guilty of fraud, harming public interest or misuses public property
entrusted to him, he commits malpractices punishable by criminal law”
Such offenders shall be punished with imprisonment extending up to seven years and the proceedsof the crime shall be confiscated according to section 4(2).
B. The Bureau of Special Investigation
In 1951,the Special Investigation Administrative Board and the Bureau of Special Investigation Act
were promulgated and the Bureau of Special Investigation was formed with 31 staff members The
Bureau was placed under the direct control of the Prime M inister at this time.
C. The Special Investigation Department
In 1963, the Special Investigation Administrative Board was abolished and the Bureau was moved
under the supervision of the M inistry of Home Affairs. The name of the Bureau was also changed to
the Special Investigation Department in 1972.

II. SPECIAL LAWS RELATING TO ANTI-CORRUPTIONIn M yanmar,there are 23 special laws in total which contain provisions relating to anti-corruption:(a) Provisions relating to bribery in the Penal Code, 1861(b) The Commercial Tax Law, 1990(c) The Forest Law, 1992(d) The Narcotic Drugs and Psychotropic Substances Law, 1993(e) The M yanmar Police Force M aintenance of Discipline Law, 1995(f) The Fire Services Law, 1997(g) The Control of M oney Laundering Law, 2002

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RESOURCE MATERIAL SERIES No. 92(h) The Anti-Trafficking in Person Law, 2005(i) The Criminal Code of Procedure, 1898(j) The M yanmar Official Secrets Act, 1923(k) The Public Property Protection Act, 1947(l) The Amendment Act of the Criminal Law, 1951(m) The Defense Services Act, 1959(n) The Protection of Public Properties Law, 1963(o) The Law Taking Action against the Ownership of Sale of Property(p) Obtained by Illegal M eans, 1986(q) The M yanmar Financial Institutions Law, 1990(r) The Saving Bank Law, 1992(s) The Law Amending the Law Relating to the Fishing Rights of Foreign Fishing Vessels, 1993(t) The Law Amending the M yanmar M arine Fisheries Law, 1993(u) The Central Bank of M yanmar Law, 2013(v) Anti-Corruption Law, 2013 (The Suppression of Corruption Act, 1948 was repealed)

III. CURRENT SITUATION OF CORRUPTION
Even though every Government in M yanmar has conducted the fight against corruption,it has notdisappeared. Some of the public servants have been committing the offence by neglecting their own
dignity as public servants and the State and disregarding the laws. Therefore, corruption is now
expanding as a culture. M isappropriation of power and bribery are of key interest to the public.
Corruption hinders administration and human rights and degenerates the economy, the politicalprocess and the dignity of countries affected by it. Moreover,it spreads to all countries.So,corruption
is now a serious problem. Nowadays,the global economy is rapidly developing,and thus corruption
is evolving and growing as well. It is committed as a transnational and organized crime. It is said
that combating corruption is impossible by one country because it is committed not only in our country
but also in other foreign countries.
According to the Corruption Perception Index (CPI)issued by Transparency International (TI), a
monitoring and evaluating NGO organization, the rank of Myanmar is 170 among 176 countries.
Therefore,it is now required to emphasize the fight against corruption.Moreover the new Government
is now trying to develop domestic business in order to improve the national economy and also inviting
foreign direct investment.So,the Government is working to improve the rank of the State in the CPI.
M yanmar is now enhancing regional and international cooperation in fighting against corruption.

IV. ACTION COM MITTEE AGAINST BRIBERY
M yanmarʼs Presidentʼs Office had formed an action committee against bribery with the following
members.
(a) Dr. Sai M auk Khan
Vice ― President

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16TH UNAFEI UNCAC TRAINING PROGRAM ME
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Union M inister
For Home Affairs

M ember(c) U Thein Nyunt
Union M inister for
President Office (1)M ember(d) U Soe M aung
Union M inister for
President Office (2)M ember(e) U Soe Thein
Union M inister for
President Office (3)M ember(f) U Tin Naing Thein
Union M inister for
President Office (4)M ember(g) Dr. Tun ShinUnion Attorney-GeneralM ember(h) U Than Kyaw
Legal Advisory Board to the president

M ember(i) U Hla Tun
Director-General for President OfficeSecretary

A. Objectives of the Action Committee against Bribery
The Action Committee against Bribery was formed in order to eliminate bribery as national duty
to strive for the eradication of bribery and corruption in public organizations,to create good governance and clean government, to upgrade integrity and accountability in public administration, to takeeffective action of corrupted offenders to make law enforcement and administrative sector to betransparent and to sustain economic development and to achieve economic development by domestic
and foreign investments.
B. Receiving Complaints and Assigning Duty to Investigate
The bribery and corruption cases can be reported to the relevant departments by individual orgroup wide.After scrutinizing,the complaint letters required to take departmental actions are transferred to the relevant departments. The letters for which no action is needed are filed. The letters forwhich legal action is required are investigated in line with the provisions of laws with the approval ofhigher authority.
We have also to scrutinize accuracy of the above complaint letters by conducting preliminary
investigation. According to the findings, we take legal action, if it is required. Whenever we findfraudulent complaints,the person who sent it would be taken legal action. The investigation processes
are as follows:(a) Planning the investigation process and arrangement(b) Collection and confirmation of information(c) Interviewing witness(d) Interrogating the accused

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RESOURCE MATERIAL SERIES No. 92(e) Search and seizure by way of evidence, including documents, money and property(f) Taking expert opinion and taking handwriting expert opinion if required(g) Giving advice of the legal opinion(h) Prosecution
The bureau is always trying to recover the public properties that were lost in corruption cases andalso reports vulnerabilities to relevant departments.
C. Status of Taking Action
The Ministry of Home Affairs has declared rapidly in daily newspapers that any victim cancomplain to the Ministry in order to be a clean Government and to eliminate the briberyand corruptionof public servants by the cooperation of public. After the above announcements had been issued, theM inistry of Home Affairs has received 212 complaint letters in total. Among them, 18 are relating tocivil cases,93 are relating to administration,2 are relating to social affairs,47 are relating to criminalcases and 52 are relating to bribery.Also,450 offenders have had action taken against them under thesupervision of the action committee as follows:(a) Taken action under the State Service Personal Law, 2013(362)persons(b) Transfer to other department(69)persons(c) Force to retired(18)persons(d) Order of the sentence of imprisonment(1)person

V. INTERNATIONAL AND REGIONAL COOPERATION INCLUDING UNCAC
A. UNCACThe United Nations Convention against Corruption (UNCAC) was adopted in New York by
Resolution No.(58/4)of the United Nations General Assembly (UNGA)that was held on 31 October2003 and enter into force on 14 December 2005 in accordance with article 68(1). Myanmar signed theConvention on 2 December 2005 and was the 137th member.
According to the decision done at the Workshop on Pre-Ratification of the United Nations
Convention against Corruption for M yanmar sponsored by UNDP that was held at Aureum Palace
Hotel from 24 to 25 September 2013,UNODC and UNDP asked the legal advice on anti-corruption billfrom legal experts relating to anti-corruption. According to the records of the UNODC, M yanmar is
one of the UNCACʼ
s States Parties which performed the anti-corruption tasks immediately.
B. IAACAThe International Association of Anti-Corruption Authorities (IAACA)was formed on 22 October
2006 in order to implement the United Nations Convention against Corruption (UNCAC). The senior
officials from Union Attorney-General Office and Bureau of Special Investigation have regularly
attended the IAACAʼ
s annual meetings. Myanmar delegation including three members of Legal
Drafting Committee of the Parliament,have attended the 6th annual meeting of the(IAACA)held from4 to 7 October 2012 in Kuala Lumpur, Malaysia.
C. SEA-PAC
Countries of South East Asia also formed the South East Asia Parties against Corruption (SEAPAC)on 15 December 2004 to eliminate Corruption in the region.Nine countries of the region are now
members. M yanmar is now trying to join as a member in November 2013.

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VI. EFFORTS TO ENACT MODERNIZED LEGISLTIONThe Suppression of Corruption Act, 1948 had existed till July 2013 in Myanmar. The Government
decided to draft a new law in line with international standards in order to suppress the corruption forthe development of the country. Those standards are as follows:(a) To emerge as a clean government and good governance;(b) To prevent corruption;(c) To provide the procedures for the public servants;(d) To have international cooperation;and(e) To get the technical assistance and exchange information from foreign countries.
A. The Anti-Corruption Law
The Bureau of Special Investigation started drafting an anti-corruption bill in 2005 with theintention of international standards and had submitted it to the Attorney Generalʼs Office through the
M inistry of Home Affairs for legal advice. After the new Government was formed,a new anti-bribery
bill drafted by the relevant legal drafting committee had been submitted to the Parliament andannounced in newspapers.The Union Attorney-Generalʼs Office coordinated and informed the M inistryof Home Affairs that there would not be any action taken on the bill submitted by the M inistry ofHome Affairs.
The above anti-bribery bill had been endorsed by Amyotha Hluttaw and sent to the Pyithu Hluttaw,
and the Pyithu Hluttaw ratified the bill with amendments including the title ofthe bill.The bill had been
submitted to the sixth regular section of first Pyidaungsu Hluttaw M eeting and ratified it. After that,
the Speaker of the Pyidaungsu Hluttaw sent it to the President to enact the law in line with section 105of the Constitution and Rules ofPyidaungsu Hluttaw.The President sent it back with his(12)recommendations. The Pyidaungsu Hluttaw had discussed it and only agreed to two recommendations and therest were rejected, and sent it again to the President.
The President signed and enacted the anti-corruption law on 7 July 2013. It is included (11)Chapters and (73)Sections. The Chapters are as follows:(a) Chapter (1) Title, come into Force, Jurisdiction and Definition(b) Chapter (2) Objective(c) Chapter (3) Formation of Commission, Duties and Functions thereof(d) Chapter (4) Formation of Preliminary Scrutiny Body relating to M oney and Property obtainedby bribery(e) Chapter (5) Formation of Investigation Body and Functions thereof(f) Chapter (6) Formation of Secretariat of the Commission(g) Chapter (7) Information relating to bribery, Performed by the President, Speakers of Pyithu
Hluttaw and Amyotha Hluttaw(h) Chapter (8) Declaration of money,properties,liability and right owned by authorized persons.
(i) Chapter (9) Confiscation the Money and Property obtained bribery(j) Chapter (10) Offences and Penalties

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The name of the new anti-corruption law is the anti-corruption law and the law shall havejurisdiction over any person who commits any offence cognizable under this Law in the territory of
the Union of Myanmar,or over M yanmar citizens or any person residing permanently in the Union of
M yanmar who commits the said offence outside the country.
B. Anti-corruption Commission
I would like to explain the new anti-corruption law briefly. According to the law,an anti-corruption
commission would be formed and organized consisting of 15 members, of whom five persons are
selected by the President, Speaker of the Pyithu Hluttaw and Amyotha Hluttaw. When the membersof the commission are assigned, they must disclose money, property, assets and liabilities of theirfamily headed by them including beneficial ownership, to the President. The term of the commission
is like the term of the President and no member of the commission has the right to serve for two terms.
The age of a member of the commission must be between 45 and 70 years old. He or she shall not be
an official or servant of a government organization.
The duties and functions of the commission are forming of a preliminary scrutiny body andinvestigation body,forming the department by assigning the Chief Investigator,specifying the authority, cooperating with the government departments and agencies and State-owned enterprises inlaying plans and programmes in order to dispel corruption,implementing the suitable programmes for
public cooperation. It also has power to examine the records of banks and financial institutions,issue an order to responsible persons of banks and financial institutions to allow the seizure ofevidence
if necessary, issue a prohibitory order not to transfer,conceal,and disguise the accounts and money,order to do prosecution,pass and order confiscation the money and property with the recommendationof preliminary scrutiny body, give protection and set rewards for witnesses.
The president and speakers of relevant Hluttaw can assign the duty to investigate corruption cases,
and the complaints of victims or relevant government departments and agencies those are sent to thecommission or investigation bodies organized by the law will be investigate. The commission shallnot investigate the cases in which there is no evidence and the repeated cases in which there is no newsound evidence. Any person who is related to the complaint case shall not be assigned as an investigation authority. The accused person has a right to defend the accusation by himself or through anagent.
The chairperson of the commission shall call a meeting to make a decision on the investigated casewithin 30 days from the date on which the investigation report is received. The commission can rejector prosecute the case depending on the findings of the investigation. It is required to get the prioragreement of the Government whenever prosecuting a person who has a political position. The
approval of required the commission is for the prosecution on any other person except the representative of the Hluttaw and persons who have political post and to make a prosecution on the representativeof the Hluttaw.
According to the investigation report or other information,the preliminary scrutiny body shall beformed to scrutinize in order to confiscate the money and property obtained by corruption. At thistime, the accused person has also right to defend the accusation by himself or through an agent. The
preliminary scrutiny body shall submit a report on its finding by taking the other statements andevidence. The commission revises again the report and confiscates the money and property if it wascommitted. If it is not, the money and property shall be paid back.
A person in a political post who commits a corruption offence shall, on conviction,be punished withimprisonment for a term which may extend to 15 years and may also be liable to a fine. An authority
other than a person in a political post shall,on conviction,be punished with imprisonment for a term
which may extend to 10 years and may also be liable for a fine. Other persons shall,on conviction,bepunished with imprisonment for a term which may extend to 7 years and may also be liable to a fine.
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frame or submitting of false documents or omissions or refusing of any bank and financial institution
to grant permission to the investigation body to carry out official duty, releasing or transferring theprohibited money and property without the permission of the commission, obliterating, altering andamending the financial records or concealing or obliterating of money and property relating to any
offence under the law, so that action may not be taken, making false complaints, giving false
statements shall be punished on conviction with imprisonment for a term which may extend to 5 years
and may also be liable to a fine.
Any person who fails to comply with any order issued by the commission shall be punished onconviction with imprisonment for a term which may extend to 6 months or with a fine or with both.
Whoever incites, attempts, conspires or administers or abets in committing any offence containedin this Law shall be liable to the punishment provided in this Law for such offence.
The offences under the law are cognizable offences and no criminal, civil, or administrative
proceedings shall lie against the commission and organization formed under the commission and anyother persons who performs on behalf of the commission and the organization who in good faith
implements the provisions of the law.

VII. ENTER INTO FORCE OF NEW ANTI-CORRUPTION LAW
After enacting the Anti-Corruption Law, 2013, according to the law, the President has issued anorder which states that law is enforced on 17 September 2013. So, other required actions including
formation of the Anti-Corruption Commission are undergoing.

VIII. CONCLUSION
Corruption is frequently encountered in every sector of life including public and private circles.
Corruption is a sad thing for our Myanmar Society as a rooted culture as well as ignorance of existinglaws, self-dignity, dignity of the State and dignity of public servants.Corruption is spreading all over
the world and is related to the fields of good governance, such as transparency, accountability,
supervision, quality, law and order. Corruption is an issue not only related to the working
mechanism, income, salary and gratuity, individual ethics and capacity but also related to legal andhistorical background. That is why the corruption problem is very wide and deep-rooted. When we
look at the past events,the leading sector had been criticized that the government did not understandabsolute power can deteriorate management abilities. The current government must inherit goodthings and bad things. After forming the new government in Myanmar, it is now decentralizing bypracticing public-basedpolicy instead of centralization.
Whenever we discuss corruption,the salaries of service personnel should be considered. In the past,most of the public servants have rarely taken bribes because of salaries,prices of commodities,cost ofliving, gratuities after pension. Nowadays, most of the public servants have so many difficulties anddeterrence to take the pride of public servant. Recently, the Union of M yanmar hosted the World
Economic Forum (WEF). In this forum,most of the experts and technicians discussed that corruption
plays a vital role for economic development, least Foreign Direct Investment (FDI)and standing as a
Least Developed Country (LDC). The occurrence of corruption has many reasons such as freedom of
expression, freedom of forming organization, freedom of media, freedom of expression by the
citizens, easily access to enacted laws, rules and regulations.
Corruption cannot be rooted out by reforming only one person or group because of it has alreadyoccurred in so many decades. Every citizen has a duty to create a country in which there is no place
for corruption and should try to avoid it because it can destroy the future of our country. That is why
we have to be free from corruption not only in the economic sector but also in the political sector.
Combating corruption has to be participated in by every strata of life such as administration,legislation,jurisdiction and participation ofthe public. Right now,our government has been trying to combat
corruption.

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As for our country,the Union of M yanmar has already tried to combat corruption since 1948,as the137th member of UNCAC,as well as to be a member of SEA-PAC in November 2013. Our country istrying to transform to democratic process and to update our existing laws by means of renewal andamendments. As the new Anti-Corruption Law is enacted, the Union of Myanmar is ever trying toprotect human rights for our citizens as well as to become the least corrupt country in our region inline with the provisions of law.

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EFFECTIVE MEASURES TO PREVENT AND COM BATCORRUPTION AND TO ENCOURAGE COOPERATION BETWEEN
THE PUBLIC AND PRIVATE SECTORS
Abraham Nikolous Ihalua

I. INTRODUCTION
Namibiaʼs anti-corruption legislation dates back prior to its independence in 1990 and Namibia has
put in place legal measures to fight corruption. The Prevention of Corruption Ordinance, 1928 (Ordinance No.2 of 1928),was enacted to better prevent corruption and it came into force on 12 June 1928.
The Prevention of Corruption Ordinance,1928,was enforced by the Police. In addition,the NamibianParliament thought it fit to pass the Ombudsman Act, 1990 (Act No. 7 of 1990), that established the
Ombudsman and empowered the Ombudsman to, among others, investigate corruption.
The Namibian Constitution provided for the establishment of the Anti-Corruption Commission
under Article 94 A and the Prevention of Corruption Ordinance, 1928 was repealed by the AntiCorruption Act,2003(Act No.8 of 2003),that was promulgated and signed by the President in 2003 andbecame operative on 15 April 2005.
The Anti-Corruption Commission (hereafter referred as the ACC)is an Agency in the Public Service
of Namibia as contemplated in the Public Service Act 13 of 1995.The ACC is headed by a Director who
is assisted bya DeputyDirector.Both the Director and DeputyDirector are nominated byPresident andappointed by the National Assembly.Both the Director and Deputy Director have experience of legal
practice as attorneys.
The ACC is an independent and impartial body,an agency within the Public Service as outlined in
the Public Service Act of 1995. The Anti-Corruption Act gives the power to investigate corruption,
combat and prevent corruption.The Director appoints investigating officers,staff of Public Education
and Corruption Prevention and other Administrative and Auxiliary staff. The Anti-Corruption Act 8
of 2003 provides for the administrative and legislative measures to prevent and combat corruption.
In its fight against corruption the Commission embraces a three-pronged approach of law enforcement,prevention and public education. Our success in the fight against corruption is dependent on highethical standards being maintained in all dealings and the reporting of corruption to the Commission
whenever it occurs.The investigative power is vested in the Investigation and Prosecution Directorate
while Public Education and Corruption Prevention are vested in the Public Education and Corruption
Prevention Directorate. The Anti-Corruption Act gives the power to investigate corruption, combat
and prevent corruption.

II. INVESTIGATIONThe Commission receives allegations of corruption orally or in writing from whistle-blowers
whether in public sector or private sector.Some whistle-blowers prefer to report anonymously or givean indication that their identities should be protected or may be disclosed.The information is normallyprovided via telephone,e-mail,in writing or in person to the Commission.On its part the Commission
must analyse the allegation to determine if reasonable grounds exist to investigate the matter,and if
it cannot, the matter will be refered to the relevant authorities such as the police, other government
ministries, and stakeholders.

Senior Investigating Officer, Anti-Corruption Commission, Namibia http://www.accnamibia.org>.

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The Commission may also initiate investigations. (Anti-Corruption Act, section 18). The Commission after analysing the matter may also decline to investigate if it is satisfied that the matter does nothave substance, or not fall within its mandate,however referrals are made in such cases as well.The
Commission may also initiate an investigation on its own motion as mentioned earlier(Anti-Corruption
Act no. 8 of 2003, section 18), therefore it is not only reactive, but proactive as well.
Investigative powers are provided such as the power to arrest any person with or without a warrant
who is suspected of having committed or is about to commit an offence under the Act. The person
arrested must be taken to the police station to be dealt with in accordance with the Criminal Procedure
Act.There are also powers to enter and search premises with a warrant and powers to seize proceedsof corruption.The investigating officers do not have the power to serve summons on person to appear
before court either as witnesses or suspects,the power to take finger prints of suspects and the power
to formally charge suspects before they appear in court.These are all done by the Namibian Police inaccordance with Criminal Procedure Act, Act 51 of 1977.

III. PROSECUTION
The prosecution power of corruption cases is vested in the Prosecutor-General. Once the Commission has concluded an investigation into alleged corruption,it forwards the case files to the ProsecutorGeneral to analyse the information and to decide if prosecution is warranted or not. In such matterswhere the Prosecutor General decides to prosecute, the case file will be send back to the Commission
with instructions to bring the accused before court by giving them summons which are in actual factserved on accused by the Police. In the contrary the Prosecutor-General shall decline to prosecute if
there is no sufficient evidence to prosecute the matter.

IV. ADJUDICATION
The adjudication of corruption matters are dealt with by the Lower Courts and High Court ofNamibia.The High Court deals with the interpretation and application of the Anti-Corruption Act andalso hears matters on the constitutionality of any sections of the Act. The definition of corruption is
not so simple because it can take on many forms;however corruption is defined as the abuse of public
office for private gain,it may also be defined as wrongdoing by those in position of trust,therefore asimplified definition of corruption is;Offering or acceptance of an advantage as an inducement or
reward for doing or not doing an act which amounts to abuse ofoneʼs official position whether in public
or a private body.
Gratification as defined in the Act refers to money or any gifts,loans,fees,rewards,commissions,valuable security or property or interest in property of any description,whether movable or immoveable;any office,dignity,employment, contract of employment,release,discharge or liquidation of any
loan,obligation or other liability,whether whole or in part;any forbearance to demand any money ormoneyʼ
s worth or valuables thing;any right or privilege which is received in the performance ofofficial
duty. There is also a need for workshops on intensifying the understanding, application and theinterpretation of the Act by the courts.

V. CONFISCATION OF THE PROCEEDS OF CORRUPTION
The Anti-Corruption Act does not make provisions for the confiscation of the proceeds of corruption,but this is done under the Prevention ofOrganised Crime Act no 29 of2004 section 32(Confiscation
Order). The aim is to remove the proceeds so that the offender does not benefit from unlawfullyacquired proceeds.It serves as a deterrent to the offender and members of the society that corruption
does not pay at all.

VI. PREVENTATIVE M EASURES AGAINST CORRUPTION
Corruption is a threat to good governance, peace, political stability and socio-economic development.It is also a threat to any positive progress,success,nation building,unity and national prosperity
therefore the Anti-Corruption Commission has adopted the following approach to prevent corruption

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PARTICIPANTSʼPAPERSat all costs. The Anti-Corruption Commission has adopted strategies to prevent corruption after
carefully studying and analysing existing policies and procedures at institutions, and the lack oftransparency and accountability at government institutions.The lack of proper policies,rules,regulations and procedures are the root causes of corruption since it creates room for corruption to takeplace. Formulating policies, procedures and regulations as an initiative of the Commission has seensome decline in corruption at work places.
The Commission also embarked on public education which is aimed at sensitising the youth,
churches, schools, politicians, public office bearers, community leaders, the private sector and thenation at large against the evils and the bad consequences of corruption so that they may feel free andalso feel obliged to report anysuspicions ofcorruption to the Commission without fear ofvictimisation.
The public play a very significant role because it exercises pressure on government to increaseaccountability and transparency at public institutions and also to take necessary action against
corruption.The development of educative materials such as brochures and booklets have been done for
distribution to mostly schools and public and private institutions to read and understand the activities
ofthe Commission and also to sensitise the Nation at large as to the effects ofcorruption in the country.
There is therefore a positive outcome in that corruption is reported on a daily basis to the commission
because awareness has reached the majority of citizens, the business community, the youth and the
public sector.
A. M edia
The media is also used by the Commission to educate the nation. Seminars and workshops are
conducted with community leaders and churches. The church serves as a vehicle to reach out toordinary citizens, to raise awareness, sensitising people and instil moral values such as honesty,
integrity,transparency,stewardship,respect and justice through teaching,preaching and education of
their members and communities at large.
The free media in the country also contribute in fighting and preventing corruption due to the factthat corrupt practices are published and read by the society and the involved people exposed.This hasa deterrent effect to future or potential corrupt public and private sector employees.The Commission
is relatively new and much still needs to be done to achieve its intended goal of a free of corruption
Nation.
B. Political Will
The President has launched a civic initiative, the “Zero Tolerance for Corruption Campaign”(ZTFCC).He has targeted mismanagement of public funds,poor service delivery and corruption as key
government priorities, and directed the investigation of cases of alleged malfeasance. The Namibian
Government has shown its commitment to combating corruption by the creation of an Ad Hoc
M inisterial Committee assisted by a Technical Committee on the Promotion of Ethics and Combatingof Corruption in March 1997 for the purpose of developing legislative and administrative proposals for
a comprehensive ethics/anti-corruption regime in Namibia. Political will is also very crucial for
Namibiaʼs anti-corruption efforts to be successful therefore politicians at all levels of government
strife to eliminate corruption and adopt necessary policies and procedures to promote accountability
and transparency in public institutions.

VII. DEFINITION OF CORRUPTION
Corruption is generally defined as an “abuse of (public) office for private (personal) gain”. It
includes:behaviour that may involve fraud,theft,misuse of position or authority or other acts that are
unacceptable to an organization and which may cause loss to the organization,its clients or the generalpublic;and dishonestly putting personal interests above those of the people and ideals one has pledged
to serve. Defining corruption is not so simple, because it can take on many forms.
A. Legal Corruption Definition of Namibia Anti-Corruption Act, 2003 (Act No 8 of 2003)
The Anti-Corruption Act, 2003 (Act No 8 of 2003) defines “corrupt practice”as any conduct
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word “corruptly”is mostly used together with the word gratification”.“
Corruptly”― the definition has
recently been declared unconstitutional and struck down. Corruptly will thus now bear its ordinary
grammatical meaning. “Gratification”has been broadly defined and includes, amongst others, gifts,
loans, fees, rewards, commissions, privileges, favours.
1. Penalty for Offences under Chapter 4:
Conviction leads to a fine not exceeding N$500,000 or to imprisonment for a term not exceeding 25
years, or to both (imprisonment and fine).
2. Prevalence of Corruption
Corruption is not really rife in Namibia.M any cases received by the Commission are not related tocorruption and they have to be referred either to the other institutions like Namibian Police,relevant
M inistries and the Ombudsman.
3. Statistics
Year

Number of Cases Received

Referred to PG Percentage

2006/2007

686

0

-

2007/2008

900

30

9%

2008/2009

928

93

9.28%

2009/2010

445

67

4%

2010/2011

297

55

2%

2011/2012

617

46

6.17%

4. Types of Corruption
Bribery:Rewards in cash/kind given to change the judgment or corrupt the conduct or influence
decision-making
Embezzlement:This involves theft of resources by persons entrusted with the authority and controlof such resources.
Abuse of power:This involves a public officer using his/her vested authority to improperly benefit
another public officer or entity or person.Note:Public officer is any officer who renders service to the
publicConflict of Interest:Acquiring a position or commercial interest that is incompatible with oneʼs
official role and duties for the purpose of illegal enrichment e.g. awarding a tender to a company inwhich you have interest without declaring such interest and recusing yourself from the process.
Conflict of Interest may be seen as corruption if not disclosed.Often there is a debate on whether
gifts may be forms of corruption or not. The debate is based on our traditional values.
Fraud: Behavior that involve irregularities such as false statements, evasion, manipulation of
information and other illegal acts characterized by intentional deception.
Favoritism and nepotism:This is the assignment of appointments,services or resources according
to family ties, party affiliation, tribe, religion, and other preferential groupings.
Inside trading:Involves the use of information secured during the course of duty for personal gain
5. Administrative Corruption or M aladministration
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Lack of adherence to ethical standard resulting in mismanagement of offices
Lack of code of conduct, policies and regulation or/and non-adherence thereof
Inconsistency in applying rules
Negligence, delay in execution of functions
Ignoring the principle of good corporate governanceUnnecessary travel adding to claim S&T.
Official time used to run personal errands.
Vehicle abuse: Research has found that about 20-30% of the cost of providing company
vehicles reflects non-business use.
6. Factors/Causes Leading to Corruption
Opportunity:People get involved in corruption when systems donʼt work well and they need a way
to get their things done regardless of the procedure and laws.
Little chance of getting caught: A lack of accountability comes primarily from a lack oftransparency (No need to explain what, why and how), and weak enforcement (law agencies donʼt
impose sanctions on power holders who have violated their public duties).
Bad incentives:e.g.a clerk not earning enough to live on,or not being sure that he will have a job
tomorrow.
Certain attitudes or circumstances make average people disregard the law.People may try to getaround laws of a government theyconsider illegitimate.Povertyor scarcityofgoods(such as medicine)
may also push people to live outside the law.
Culture: “Corruption is a matter of culture”A culture where a small reward is always paid forservice rendered, special honor for the Chiefs. Can also be practiced in business arena.
Range of Discretion:If one person has too much power to exercise discretion,if there is no one toanswer to, having discretion to decide how rules should be applied, it may be abused.
7. Corrosive Effects
Some factors leading to corruption have many corrosive effects. Such factors include a shortage ofessential services such as schools and hospitals; insufficient public facilities; a decline in economic
development;a high unemployment rate;poverty and inequality;the facilitation of organized crimesuch as drugs,arms trade and money laundering;the violation of human rights;the undermining of therule of law and representative democracy;an increase in political instability;the enrichment of a few
at the expense of the majority. Greed;to wish to have everything.

VIII. CASE STUDIES
A. The State versus Sackey Namugongo 2006
1. Background
The accused was a Deputy Director in the Ministry of Environment and Tourism responsible for thegambling house licences.There was a moratorium placed on the issuance of gambling licences during
2006. The accused disregarded this moratorium and continued to issue fake permits to authorise
gambling machine owners to use the gambling machine until the moratorium is lifted.He received cash
totalling to N$ 332 500.00.

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2. Court Proceedings
The accused was arrested in 2007 and charged on 42 counts of corruption, fraud, forgery anduttering. He was granted bail of N$20 000.00.
3. Trial
The trial took about 4 years and finally the accused was convicted on 19 counts of corruption. He
was sentenced to 10 years imprisonment,of which 2 years were suspended for 5 years on condition that
he is not convicted of corruption during the period of suspension.He appealed against the sentence to
the Supreme Court while in prison but the appeal failed. The accused started his prison term in 2010.
The rest of the counts could not be proven as there was insufficient evidence.The accused was released
from prison during August 2013 on a Presidential Pardon.
B. State versus Armugham Thambapilai 2005
1. Background
The accused is a prominent lawyer in the northern town of Ondangwa,Oshana region in Namibia.
The accused is a practising lawyer who has admission to the lower courts and the High Courts ofNamibia. He regularly acted on behalf of his clients to lodge accident benefit claims from the M otor
Vehicle Accident Fund (M VA)of Namibia.The accused lodged accident benefit claims from the M otor
Vehicle Accident Fund between 2000 and 2005. The M otor Vehicle Accident Fund is mandated astatutory body mandated to compensate victims of motor vehicle accidents in Namibia. The accused
after receiving instructions from his clients;falsified the information and submitted fraudulent claims
to the M otor Vehicle Accident Fund. Numerous fraudulent claims were paid out by the fund.
Sometimes towards the end of 2005 a whistle blower informed the Commercial Crime Unit that theaccused was busy with corrupt activities at his law firm by presenting fraudulent information to the
M VA Fund.The accused managed to lodge claims to the value ofabout 4 million Namibia dollars fromthe fund.The falsification of the information was mostly aimed at getting more financial benefit fromthe Fund,for example a certain claimant was injured in a car accident and due to this accident he lost
his income.This man never worked in his life which means he never had an income as a business man.
The M VA Fund pays for loss of income. This details were misrepresented and a total of 2,8 Million
Namibia Dollars were paid to the lawyer and his client. An investigation was lounged, It was established that the claimant was not a businessman.It was further found that the accident details submitted
to the fund to support the claim were not real,but falsified.An accident truly happened but the detailsof the correct accident were never revealed to the M VA Fund. The M VA Fund did not suspect any
wrongdoing and accepted the claim in good faith. After the conclusion ofthe investigation,the lawyer
together with his clients were indicted for 16 counts of fraud,9 counts of forgery and uttering,1 countof theft.
2. Trial
The trial started in 2007 and the accused pleaded not guilty to all the charges he faces. The State
presented its case in the High court by calling witnesses and presenting the falsified claims information
to the court.The accused also testified in his own defence,and put the blame on his clients saying that
he only acted upon instructions from his clients and if there are any misrepresentations than it shouldbe from his clients and not him,he stated to the court.At the end of the trial the accused lawyer asked
for the discharged of his client arguing that the state witnesses contradicted themselves and that theState did not have a case against his client. That request was not granted by the presiding Judge.The
submissions were already done, and now it is up to the Judge to pronounce his findings. The case ispostponed to December 2013.
C. The State versus Veronika Kituna Thomas and Others 2010
1. Background
The accused was a Registry Clerk/Data Typist in the Ministry of Finance,Inland Revenue responsible for receiving Income Tax Returns, capturing of Employers Tax Reconciliation, capturing of
PAYE 5 (Pay as You Earn)certificate. The allegation is that the accused stole cheques paid over by
Companies to the M inistry of Finance as employee tax remittance,and value added tax.The accusedthen handed the cheques to a middle man who in return handed the cheques to a business man. The
business man deposited the cheques into his business account with a similar name of that of the266

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M inistry of Finance (M Finance).The total amount of the cheques were N$ 3,329,489.64.
2. Trial Proceedings
The businessman was arrested during M arch 2010 and was released on bail of N$30,000.00. The
main accused and the middleman were indicted before the High Court on 10 charges of corruption
during November 2010.
The main accused pleaded guilty in terms of section 112(2) of Act 51 of 1977, on 5 counts ofcorruption and was consequently convicted on 10 February 2012 and sentenced on 27 March 2012 to 12
years imprisonment of which 4 years were suspended for a period of 5 years on condition that accused
is not convicted of theft or corruption committed during the period of suspension;however she lodged
an application during April 2012 for leave to appeal the sentence imposed against her, which is still
pending in the High court.She is currently serving her jail sentence in Walvisbay Prison in Namibia.
The middleman and the businessman pleaded not guilty to all 10 charges of corruption and thematter is pending before the High court.
D. The State versus Gerry Munyama 2005
1. Background
The accused was a Director General, the chief executive officer and a member of the board of
Namibian Broadcasting Corporation (NBC)established in line with the Namibian Broadcasting Act,Act 9 of 1991,in terms of this act the NBC is a juristic person and as government agency;is responsible
for provide information and news to the public and updating in the international events.
The accused was having exercises control and supervision over officers and employees of NBC andperforms the duties assigned to him by the NBC board.During October 2005,the accused forged a NBC
board resolution and opened a new bank account at Standard Bank Namibia which authorized him to
be a sole signatory power on the account and paid NBC cheques to the amount of N$ 480,000-00 into
the fake bank account and made several withdrawals and pretending that he settled the debts of NBC
by paying creditors. Two cheques totalling N$ 280,000-00 were deposited into the bank account of
Coolingʼs CC;a CC business which was responsible ofinstalling air conditions at NBC while the CC was
already paid for the service rendered to NBC.
2. Court Proceedings
The accused was arrested during October 2005 and charged on counts of corruption,fraud,forgery
and uttering and theft. He was granted bail of N$20.000.00.
3. Trial
The trial took about 5 years and finally the accused was convicted on all above counts. He wassentenced to 10 years imprisonment,of which 4 years were suspended for 5 years on condition that heis not convicted of corruption during the period of suspension.He appealed against the sentence to theSupreme Court while in prison and succeeds.The accused started his prison term in October 2010 andwas released from prison during October 2012.

IX. CONCLUSION
Governments should regularly come together to revisit the effectiveness of the current laws to fightcorruption and also to seek new ideas in preventing corruption.

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CORRUPTION AND ITS IMPACT ON LAWENFORCEMENT WORK
Oris I. Jaen Fernandez

I. CURRENT SITUATIONThe National Police of Panama has as its primary objective safeguard the life,honor,property andother rights and freedoms of all persons that are under the jurisdiction of the State, as well as tomaintain the peace and security of all its inhabitants.1 To run this mission, the police must interact
with the society and be observers to the accomplish of laws,according to the standard the Constitutionof the Republic of Panama.
The relationship between police and citizens must be informed by the ethical and professional
principles that allow for the effective development of police work.One of the challenges to community
police units is to maintain the integrity and the commitment to sustain the credibility deposited by the
citizens.2 All programmes designed to improve the quality of life and the citizenʼ
s security perception
within communities depends of the image projected by the police officers enforcement.
It has been found through disciplinary audiences that police officers misconducts,such as abuse of
authority, misuse of force, extortion and immoral behaviours have a negative impact to the publicʼs
perception of security. Any police officerʼ
s act of corruption has a direct impact on the image of theorganization, as well as on the plans and strategies that are developed for the benefit of all citizens.
Corruption causes the loss of citizensʼtrust toward police tasks.
Police officers of lower rank are commonly breaking the disciplinary rules.New generations seems
to be more involved in disciplinary behaviours, also the responsibility and the ethical values thatsociety requires,show not to be their strength.Currently,is not easily to find in the society,the humanresource with the appropriate profile that is needed to work and run the role of authority and enforce
existing laws and rules with the vocation of service. This issue is now a challenge for recruiting andselection process:hire the best and high qualified individuals for law enforcement duties, even when
citizensʼneeds are upon more police officers presence on the streets to improve their security perception.
There is no doubt, a change in strategies and in security policies to faced corruption is obviously
necessary. The main purpose must be focused on man empowerment: high values,skills and commitment for law enforcement duties. This will enhance the security organization in high standards
capacities to enforce the mission given by law:protect and serve society. This means not be empowered as an authority to incurred in abuses and corruption and be served through illegal profits fromsociety.
When a police officer is implicated in acts of corruption, the elements of proof become one of themain limitations for the disciplinary punishment.For the prosecution of acts of corruption committed
by police officers, was created the Department of Professional Responsibility,as an office of internalaffairs.This department is responsible for investigating violations of police procedures and the acts ofcorruption in accordance with the provisions of Article 119 of the Organic Law of the National Police.3
These investigations may be initiated in the following manner:
Commissioner, National Police, Panama.
1Executive Decree No. 204, Disciplinary Rules of the National Police, September 3, 1997
2United Nations Office on Drugs and Crime, policing:The integrity and accountability of the Police, New York 2006
3Executive Decree No. 204, Disciplinary Rules of the National Police (2012).

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Ex officio, public complaint through a social media.
Denunciation, complaint or telephone indictment, previous identification.
Complaint through a signed letter
Indictment or complaint of any member of the National Police
Sometimes the investigations are constrained by the need of information and evidences under the
responsibility of the private sector and the judicial agencies, making it difficult the collection of
information and evidence of the fact,and will therefore take a long time,thus leading to a long waiting
period between the act of indiscipline and the punish that impose the Disciplinary Superior Board to
this misconduct. This situation makes security strategies of the National Police more vulnerable tocorruption,by the broad period for the exemplary disciplinary action to correct the action,which is athreat to the task of enforcing the law at all levels:organization, community and citizenship.4

II. EFFECTS OF CORRUPTION
Corruption is one of the most convincing threats to security organizations,because it is a problem
related to ethical. Corruption is usually generated from outside by the action of people that from theirown perspectives, recruit and corrupt public servants to serve for their purposes and in many cases
these activities are done in secrecy and cannot be easily detected.5
Currently the National Police is conducting retraining to different hierarchical levels in order tostrengthen the ethical principles and values of all its members,to ensure the high degree ofcompetitiveness and professionalism during the performance of their duties. Corruption not only breaks the moral
principles and the institutional image but it promotes the feeling of fear and insecurity among thecitizens.6
A. Organized Crime
Each day the organized crime is looking for a way to penetrate the security institutions. Public
servants who work in the judicial departments and law enforcement officers are more vulnerable by
the organized crime through their bribes and extortion,even death threats,in order to obtain benefits
and to continue their illicit activities. According to Americas Barometer (2008), police corruption isconsidered a critical problem in Latin America, known through the media news about the police
collaboration and protection of persons from organized crime.
According to report conducted by the research organization,on results obtained through survey in
21 countries of Latin America and the Caribbean, 44% of the respondents said that their local police
are involved in crime. Thirty-eight percent (38%)said that the police were protecting the citizens and
18% said that the police did not protect the people but was not involved in criminal activities.
The fight against organized crime has its center of gravity in the institutional legitimacy. No
matter how greater the challenge is,terrorist or drug trafficker,the behaviour of those who enforce thelaw must be committed to the respect for the law and human rights.Otherwise,each time that a public
servant is diverted from its performance,it is legitimizing the crime,putting in proof the capacity ofmoral integrity,dignity and ethics of law enforcement workers and all the security institutions of thenation.7
4United Nations Office on Drugs and Crime, policing:The integrity and accountability of the Police, New York 2006
5Lynch, Omar. Caracterı
sticas de la corrupcion administrativa en Panama, actividades realizadas en la lucha contra lacorrupcion,resultados yperspectivas.Retrieved from http://www.clad.org/documentos/otros-documentos/caracteristicasde-la-corrupcion-administrativa-en-panama-actividadesrealizadas-enlaluchacontralacorrupcionresultadosyperspectiva,
October 12, 2013
6Transparencia Policial en Colombia (2008).
Retrieved from ＜http://www.policia.edu.co/documentos/ascensos/
tematicas ascenso pt 2013/Guia%20Policia%20Nacional%20por%20el%20Camino%20de%20la%20Eficiencia,%20la%
20Transparencia%20y%20el%20Buen%20uso%20de%20la%20Fuerza.pdf＞ 12 October 12 2013.
7Deontologia Policial, Retrieved from http://www.policia.cl/cidepol/biblioteca/deontologiapolicial.pdf,October 12,2013.

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Perception that the Police are involved in crime, Latin America
and Caribbean, 2008

Police involved in crime
Source: http://www.americasbarometer.org

Any police officer of the National Police detected having any relation with people of organizedcrime or of dubious reputation, denigrates the institutional image and is severely punished with thedismissed of the police career,previous investigation done by the Department of Professional Responsibility. This is important because if the citizenship notes the repetition of negative behaviours that are
not sanctioned, concludes will be wrong, that all cops are well and that,in addition,are protected bytheir superiors, which reaffirms the perception of impunity and complicity.
B. Perception of Security (Citizens feel secure during daily activities)
According to the Public Security M inistry, the National Strategy for Citizen Security, whose costis about of US$37 million provided bythe European Union until 2017,is based on enhancing the trainingof individuals from the Public Security M inistry, Education, Social Development, Labor and the
National Police. This tends to exchange information between law enforcement agencies and to270

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implement more prevention at the family level and in schools that are located in areas with high rates
of youth violence, drug and alcohol use.8
Nowadays, the perception of security of the citizens must be the primary interest when a security
strategy is designed. Indicators should be directed to the perceptions and expectations of quality ofservice the society and the country need. Moreover, indicators should evaluate the law enforcement
work and its impact on the relationship police-community-authority.
In these times, the common citizen is not interested in knowing if their security depends on thecommunity policing or investigation tasks of law enforcement officers,or the police relation with theprosecutor or the judge to ensure the security of them. The matter is now who cares of them during
their daily activities and through its work can make them feel secure. The world todaydemands a highlevel of competitiveness,in the case of the National Police,the respect for the law,Human Rights,theeffectiveness of their work and transparency in the activities of each of their members. It is necessary
significant changes in the profile of police officers required to achieve law enforcement duties. It
implies substantial changes for a contemporary police culture of transformations toward the respect
for the rights and dignity of all individuals. And also,with the surveillance of the citizens,observing
their police officers is honest,reliable,transparent and responsible for their actions in the community
he/she serves. If this does not exist and are obvious acts of corruption during police duty,citizen will
mistrust their police and will not collaborate or participate in any programme to reduce crime rates
and improve perception of security in their communities.
Recent citizenʼs surveys pointed out the confidence and acceptance of the National Police. In
January 2013 almost 1,201 people surveyed by the Borges and Associated Company declared having
55.8% good opinion of the National Police,placing it in fifth place in comparison with other organizations such as the Canal Authority(63.3%),Electoral Tribunal(61%),Social Communication (57.7%)and
the Catholic Church (57%).
The corruption scandals related to drug trafficking, abuses of authority and high crime rates
directly affect the mistrust that perceive the citizens on the National Police. On the other hand, inrecent years, immediate actions of depuration and police reform carried out have improved levels ofconfidence.
C. Increase in Crime
The police presence on the streets is closely linked with the perception ofsecurityofthe citizens andthe prevention for the actions of crime. It is thus that each police action in the operational oradministrative area has a significant impact on the development of criminal activities.
One of the most questioned police actions in the internal administrative process are the absence tothe service. In the last nine months, 52 police officers were destitute because they were absent fromwork more than three consecutive days without justification (desertion). In occasions from thissituation, emerges the commission of other misconduct to the disciplinary regulations, as it is thecounterfeiting or alteration of signatures or documents,when police officers try to justify the absence
to the service through “questionable”documents that certify their inability for health reasons. During
2013, six police officers have been removed because of these practices. Additional, these cases weresent to the Anticorruption Prosecutors, to investigate this act of corruption.
The quality of service provided by the National Police is directly related to the results of the police
presence for the prevention of criminal acts. Each time that a police officer is absent from the service
with a medical justification, we should not think in the first instance that is an act of corruption but
a right. But,so long as they comply with the procedures for reporting on time the absence from work
and in such way,it allows adjusting security needs in relation to the human resources available. It isin this way that its responsibility for its absence is not in doubt.

8Cordoba, M aria G. Panama: Nueva estrategia de seguridad busca reducir homicidios.

Retrieved from http://www.

infosur.com, October 12, 2013.

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In some cases, it has been detected that police officers were involved in criminal acts, performing
other tasks for personal remuneration,which are absent to its service justifiably. These facts are theone to pay attention to, because itʼs linked to acts of corruption.
On the other hand,every action,decision and omission in law enforcement duties,the police officer
has significant responsibility according to the results. In this year,44 police officers were destitute due
to denigrate the image of the institution. The majority of them were involved direct and indirect withcriminal operations, omitting significant information for the persecution of the offenders and even
subtracting evidence from the crime scene. The current risk of law enforcement work is more ethicalthan physical.
Whenever a police officer goes out to the street to fight crime,the challenges will be greater due tothe factors internal and external determinants that encourage the development of the acts of corruption,which facilitates the increase in crime and the perception of insecurity. This feeling of insecurity
not only applies to criminal acts but also to others that low the level of confidence because of thedissatisfaction of the system of justice, especially in cases of corruption.
Graphic 1 Panamanian Public Opinion about the problems facing the country

Source:The Economist Intelligence Unit. Country Report, November 2011

III. M EASURES TO CONTROL CORRUPTION
According to the Article 18 of the Constitution,public servants are responsible for breaches of theConstitution and the law and also by overstepping of functions or by omission in the exercise of these.
On the other hand,the Article 1996 of the current Judicial Code,says that every public employee who,in the exercise of their functions discover in any way that a crime has been committed to those where
they are to be on its own motion, will promote to pass all data that are conducive and denounced tothe competent authority, to proceed with the prosecution of the offender or offenders.
Police officers are public servants, and must reported to their superiors or to the corresponding
authorities, those acts of those who had knowledge with reason or on the occasion of the exercise of
their functions and that could cause harm to the State or constitute a criminal offense or violations of
any of the provisions contained in the Code of Ethics (Executive Decree No.246,September 15,2004).
The members of the National Police should behave at all times in accordance with the highest
principles of honesty, morality in the exercise of their functions. Police officers, in their professional
and personal life, will be honest and respectful of human dignity and give the example in compliancewith the laws and regulations of the law enforcement institution.99 Executive Decree No. 204

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Some measures that can control the acts of corruption within the police force, are the following:
Accountability to the community
Implementation of strategies and clear policies against corruption
Strengthen a culture of transparency
Efficiency for the recruitment of police officers
Improving accounting and auditing standards of staff, goods and services
Develop training and ability of the police officer
Implement and monitor appropriate manuals and procedures
Promote and comply the rules of law
Prosecution based on accurate facts and evidences that are needed by law
Promote activities to encourage coordination between private sectors
Punishments for corruption will be more severe. Sanctions will increase for corrupt acts.
Use of a special telephone number. This line will provide legal aid to people who have been
exposed to corrupt behaviour. A specialized police section will therefore be established.10
Promote anticorruption campaign through a culture of integrity against corruption in the
public service
Enforce rule of law to fight corruption behaviour

IV. CONCLUSION
Police officers have as their primary mission to protect and serve society,while respecting humanrights, equity and justice, as well as all the constitutional rights of the people living in Panama. But
to comply this important task, always act in accordance to what is established by law, ensuring thesecurity of citizens without accepting gifts or rewards for reasons related to the exercise of theirfunctions.
To meet the cases related to corruption, the treatment must be encased, directing exemplary
disciplinary punishment toward the misconduct and not toward those who committed it.This will help
in making objective decisions,based on the laws and codes of conduct and ethics that govern the dutiesof all those officials who serve society and does not been served by it.
On the other hand,it is important to the training of police officers to strengthen their competitiveness in values and ethical to achieve his/her organization with absolute impartiality,without engaging
in acts of corruption that denigrate the image of the institution and it is the duty of each one of themto keep a constant surveillance to combat corruption.

10 Anticorruption measures. Retrieved from ＜http://icv.vlada.cz/en/anti-corruption-measures-91528/＞. 13 July 2013.

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EFFECTIVE MEASURES TO PREVENT AND COMBAT CORRUPTION
AND TO ENCOURAGE COOPERATION BETWEEN THE PUBLIC ANDPRIVATE SECTORS
Rosito Amaral

I. INTRODUCTION
Timor-Leste is a new country that restored its independence in 2002.Timor-Leste is a nation facing
many problems to develop various aspects of life,particularly justice and the legal system.However,slowly but surely the nation has made some progress in the criminal justice system as a key element
to support the development of a democratic state based on the rule of law including to generate clean
a government devoid of nepotism, and collusion, and to establish the necessary framework forpreventing and combating corruption in Timor-Leste.
Timor-Leste has taken significant steps against corruption issues since the restoration of the
independence (2002).The first Constitutional Government established the Office of the Inspector
General (OIG)under the Office of the Prime Minister with the tasks of inspection,auditing andinvestigation.1
To generate clean government,in May 2004,Timor-Leste established the office of the Provedor for
Human Rights and Justice (Ombudsman) which effectively functioned in 2005.2 “The Provedor was
responsible for promoting and monitoring good governance,human rights and justice,and combating
corruption.”3
With the phenomenon of corruption that exists,on 2008 the National Parliament of the Democratic
Republic of Timor-Leste ratified the United Nations Convention against Corruption (UNCAC).
Timor-Leste ratified the UNCAC in 2008. As new country, with so many competing priorities, theratification of UNCAC marked an important step in assuring good governance, and represented
Timor-Lesteʼs serious efforts to prevent and combating corruption.

II. ANTI-CORRUPTION COMMISSION TIMOR-LESTE (ACC-TL)
Corruption is widely acknowledged as a complex and multi-dimensional phenomena with negative
consequences that extend beyond the sphere ofethics and moral.Corruption has an impact on the socialand economic life and threatens the basis of democratic states under the rule of law. In 2009, theNational Parliament of Timor-Leste in accordance with Law No. 8/2009 established the AntiCorruption Commission body with an expanded mandate on preventing and fighting corruption.
Criminal Investigation of corruption cases is supervised by the Office of Prosecutor General.4 The
nature of the Commission in according to article 3 is technically independent and administratively andfinancially autonomous. The Commission is given the status of specialized and Independent Criminal
Police authority and its action is governed exclusively by statute and,in its capacity as criminal police
authority, the Commission acts under the authorities of competent jurisdictions.
In its fight against corruption the commission embraces a three-pronged approach including as
corruption prevention, and public education. The success in fight against corruption is dependent on
Senior Investigator, Anti-Corruption Commission, Timor-Leste.
1Implementation Review Group, Third Session. Executive Summary, CAC/COSP/IP/2012/CRP.8, 1 (22 Jun. 2012).
2Ibid.
3Ibid.
4DecreeLaw no. 8/2009, Establishment of Anti Corruption Commission (CAC).

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PARTICIPANTSʼPAPERS
high ethical standards being maintained in all dealing and reporting of corruption cases to commission
whenever it occur.
A. Investigation
The Commissions used two ways of starting an investigation such as through the dispatch of a
Prosecutor, and it can start its own investigation, but needs to inform the Prosecutor in 72 hours inorder to get a formal dispatch from Prosecutor.As a Special Criminal Police body,the Commission has
the power to receive records of any cases of corruption reported by the public such as written or
unwritten reports. Incoming information reports, either written or oral reports, are required to berecorded manually or electronically. All reports are categorized as corruption. In accordance witharticle 49 paragraph 3 of the Criminal Procedure Code, the investigator will notify the office of theProsecutor General (OPG)as the penal prosecution.
The Commission not only receives reporting cases from the public,but accepts other cases recommended by other government agencies such as the Inspectorate General of the State and recommendation cases from Ombudsmen as well as cases reported by the Civil Service Commission Office.
All reported cases by the agencies will be analyzed by the Criminal Investigation Division. If theanalysis discovers sufficient evidence of corruption,then the Anti-Corruption Commission immediately
reports to the Prosecutorʼs Office which has the legal power to enforce the Corruption Act.
On the other hand, the Commission may also use its own initiative to proactively gather all theinformation from reliable sources that voluntarily want to cooperate with the CAC in fighting corruption in Timor-Leste. Starting from the year 2010 until 2012, the Criminal Investigation Division is toinvestigate corruption cases of both passive and active corruption,such as abuse of power,embezzlement, economic participation and business.
B. Public Education
In order to prevent corruption, the Commission uses public education and campaigns to share
information and knowledge as well as provided education to the public about the impact of corruption
itself through training programmes or workshops to the youth,community leaders,private sector andacademics from primary school up to university, and delivers messages to the public through print
media, electronic television, radio, etc. The activities are carried out at the national level and the
districts levels.Also the commission provides education in order to monitor use or movement in orderto save government facilities.
C. Prevention of Corruption
The Prevention of Corruption Division plays an important role to collect and analyse all theinformation related to the prevention of criminal acts of corruption which advises all government
authorities in order to find the solution about corruption in the public sector,especially the use of state
finances.
In the prevention of corruption,the Commission gets closer to the public sector in the fight against
corruption, by making formal contacts and holding intensive meetings with government officials
through seminars or workshops in order to distance themselves from the practice of corruption.
Essentially the purpose of the meeting and the workshop is how each individual is a public servant,starting from the top leadership to subordinates and to know how to control both procedures relating
to tendering or bidding any project ― whether it is done by the private sector of national andinternational companies.
In addition to workshops,the Prevention of Corruption Division also approaches the authorities andcarries out monitoring and inspection of projects at the district level. The Prevention of Corruption
Division also conducts unannounced inspections of the implementation of projects in the field in order
to see the implementation of these projects physically and assures that the quality of materials used on
the project is in line with what has been planned.
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electoral commission (CNE)and held a workshop to all parties participating in the elections that will
follow the election in order to produce the transparency and creating a condition of a democracy andto avoid corruption in the election,based on the article 11 law no.6/2008 the legal regime of financialof the political parties.
The public and private sectors are important to the programmes of the Commission;therefore, in
addition to cooperating with government authorities and society in general, the prevention division
approach is to collect and analyze information related to corruption prevention measures in order toensure effectiveness in the public sector, particularly the implementation of the State budget.

III. INTERNATIONAL COOPERATION5
The International Cooperation framework is established by the Constitution and the recent Law no.
15/2011 on International Judicial Cooperation in Criminal M atters. The Penal Code and the Criminal
Procedure Code also contain provisions applicable to international cooperation.
A. Extradition;Transfer of Sentenced Persons;Transfer of Criminal Proceedings(Articles 44, 45, 47)
Timor-Leste is a party to the Extradition Convention among the Portuguese Speaking Countries.
Timor-Leste has not concluded any bilateral extradition agreements. Preliminary discussions havebeen started with several neighbouring countries. It appears that, according to the Constitution and
Law No.15/2011,the Convention could be used as the legal basis for extradition by Timor-Leste on thecondition of reciprocity.
B. M utual Legal Assistance (Article 46)
Timor-Leste has not concluded bilateral agreements on mutual legal assistance.Law 15/2011 allows
Timor-Leste to give and ask for assistance, including search for and seizure of objects or property,
persons in transit,warrant service and to interview the suspect,the accused person,witness or expert,
the procurement of evidence, notice of the action and service of documents, and communication of
information about the law or the laws of the foreign Timor,as well as the communication of information relating to judicial records of the suspect, accused or convicted. Mutual assistance can be madethrough the Department of Justice and the Office of General Prosecutor appropriate existing international agreements.
C. Law Enforcement Cooperation;Joint Investigations;Special Investigative Techniques(Articles 48, 49, 50)
The police have cooperated with other police forces of the region, either directly or through theInterpol network, both spontaneously and upon request, only regarding organized crime matters.
Cooperation includes the establishment of joint investigation teams and transmission of information
which may be useful for foreign police forces. Special investigative techniques may be used by thepolice, CAC, and the future Financial Intelligence Unit (FIU) if allowed by a court decision. Suchmeasures include wiretapping, interception of telecommunications, undercover operations, andcontrolled deliveries. Taking into account the legal and institutional context, the reviewers wereconfident that law enforcement cooperation would be significantly enhanced in the coming years.
D. Challenges
The Anti-Corruption Commission has been facing several challenges in the performance of its
functions during the past three years because the Government and National Parliament are not serious
about approving the Anti-Corruption legislation draft that has been sent to the National Parliament
several years ago. Timor-Leste has a Witness Protection law to protect the witnesses;however, in
reality,the law has still not been implemented yet.It is important that all public officials declare theirincome and assets (asset declaration) and to establish a registry system accessible by the public.
Furthermore,according to research and evaluation by the Anti-Corruption Commission,45 percent ofsociety still lacks sufficient knowledge to form an understanding about corruption matters;however,

5See Executive Summary, supra, at n. 2.

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the publicʼ
s expectation to punish the corrupt actors is high.
E. The Way Forward
Cooperation and coordination among the Anti-Corruption Commission and other state institutions
are improving, and also the Commission has a very good relationship with the Public ProsecutorʼsOffice, the General Inspectorate of the State, the National Police, and the Ombudsmanʼs Office. The
Commission has explored cooperation with civil society so as to grow a culture of anti-corruption at
the grassroots level. In addition, the Commission is strengthening its institutional capacity and legal
framework (i.e., capacity building for investigators). Finally, the Commission is always looking foropportunities to engage in international cooperation.
References
Activities of the Criminal Investigation Division of the CAC.
Annual Report of Anti-Corruption Commission, 2012.
Bulletin CAC, three years existence of CAC 2012/2013.
Constitution of the Democratic Republic of Timor-Leste, August 2001.
Decree-Law No. 8/2009, Establishment of Anti-Corruption Commission (CAC).
Implementation Review Group, Third Session. Executive Summary, CAC/COSP/IP/2012/CRP.8, 1 (22Jun. 2012).
Internal Standard Operation procedure (SOP)Investigation Division 2011.

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REPORTS OF THE PROGRAMM EGROUP 1
EFFECTIVE MEASURES TO INVESTIGATE CORRUPTION CASES
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
M embers

Adviser

M r. Vladimir Aras
M r. Hironori Sato
M r. Abraham Kemboi
M s. Justine Namukwambi
M r. Faycal Touti
M r. Md Golam Rabbani
M r. Nuon Norith
M s. Evah Thingini
M r. Oleg Crismaru
M r. Rosito Amaral
M r. Kenichi Ito
M r. Mutsuo Nakabayashi
M r. Shotaro YamadaProf. Kazuhiko M oriya(Brazil)(Japan)(Kenya)(Namibia)(Algeria)(Bangladesh)(Cambodia)(Kenya)(M oldova)(Timor-Leste)(Japan)(Japan)(Japan)(UNAFEI)

I. INTRODUCTION
Group 1 started its discussion on 25 October 2013. The group elected Mr. Vladimir Aras as its
Chairperson,Mr.Hironori Sato as its Co-Chairperson,Mr.Abraham Kemboi as its Rapporteur and Ms.
Justine Namukwambi as its Co-Rapporteur. The group which was assigned to discuss “Effective
M easures to Investigate Corruption Cases”agreed to conduct its business in accordance with thefollowing agenda:1)M easures to investigate corruption;2)International cooperation in investigationof corruption cases;and 3)Procedures for trial of corruption suspects/accused/defendants in order toconclude the Case Study. Of these agenda items, we agreed to focus on 1) M easures to investigate
corruption.

II. CASE STUDY
Anti-corruption organization B in A country has received an anonymous report (assume that thisinformation is accurate and reliable):Public official C in charge of a project to build bridge D has
accepted a bribe from Construction Company E. In exchange for the bribe, the public official C has
agreed to award the construction contract to Construction Company E. The bidding is scheduled totake place soon.Additionally,Construction Company F was awarded a construction contract to build
bridge G three years ago after the public official was bribed by Construction Company F.
Based on the Case Studyprovided,the group decided to examine the three broad topics ofdiscussion
by country and agreed to conduct its discussion with following format:

III. MEASURES TO INVESTIGATE CORRUPTION
A. M easures to Generate Leads (Intelligence Steps) in Each Country
The questions/points on the said topic to be discussed by the group as agreed and the prevailingsituation in each country regarding these matters in the participating countries are summarized asfollows:
1. Whether Corruption Cases are Investigated by an Anti-Corruption Agency, Police, or Prosecutors
Almost all the countries,except for Japan and Brazil,stated that they had established independentanti-corruption agencies (ACA)dedicated to investigate corruption cases.In Brazil and Japan corruption cases are investigated by police or prosecutors. In these two countries, their practice is that if
corruption cases are to be handled by the police,supervision by a prosecutor is necessary because thecases are considered complex.

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Establishment of the independent ACA is in line with UNCAC Article 36, which requires States
Parties to ensure the existence of a body or bodies specialized in combating corruption through law
enforcement. The participants observed that the ACAs had been granted necessary independence, in
accordance with fundamental principles of the legal system of the State Party,to be able to carry out
their functions effectively and without undue influence.
2. Whether Reporting through Anonymous Letters is Acceptable
All the participants stated that anonymous reports/letters were accepted in their countries as ameans of generating information that can assist in identifying acts of corruption. This method is
considered safe and convenient for informants whose lives and relationships with the perpetrators
would greatly be affected if it was found out that theyreported such cases to law enforcement agencies.
3. Anonymous EmailAll the countries indicated that they had established dedicated email accounts for use by informants/complainants when reporting alleged corruption practices to the anti-corruption agencies/
police/prosecutors. It was observed by the participants that it is necessary and always important toprotect the source of the report to guard against any harm.
4. M eans to Identify the Source
Except for Cambodia, all the countries stated that they had in place mechanisms to identify thesource of the anonymous reports. Identification of the source would be done through deployment ofintelligence techniques such as recruitment of reliable informants within the target organization who
will provide information for covert identification of the source.Identification of the source is usuallycrucial for clarification of the issues touching on the case beforehand. M embers agreed that theidentification of the source is not mandatory if information is reliable. M embers consider that
resources of identification of the author of an anonymous report can be used more successfully inverification of the information about the crime.
5. 24-Hour Telephone Hotlines
Japan,Algeria and Timor-Leste were the countries which indicated that they did not have 24-hour
telephone hotlines;the rest of the countries in the group have such lines in place. The said lines aremanned at all times and allow people who witness acts of corruption to report the same to authorities
as and when they happen.
6. Suspicious Transaction Reporting from FIU
The participant from Timor-Leste stated that at the moment, they did not have a Financial
Intelligence Unit for reporting of suspicious transactions. It was the considered opinion of all theparticipants that such a unit was very crucial in generating leads on laundering of proceeds ofcorruption;and therefore recommended the establishment of an FIU in Timor-Leste.
7. Whistle-Blower Programmes
These are programmes to ensure the safety of whistle-blowers when they expose mega scandals
touching on persons or group of persons considered dangerous to the whistle-blowers.Each participant
was requested to share the situation in their countries as regards programmes for protecting whistleblowers. The group was informed that Algeria, Cambodia and Timor-Leste had no whistle-blower
programmes in place.
8. Public Databases (Property, Work, Movements, Criminal Records, Etc.)
These are databases which are accessed by law enforcement agencies for information that may be
useful in informing the direction of the case. Such information includes but is not limited to assets
owned by the suspect, past criminal record(s) and personal details. Algeria, Bangladesh, Japan andTimor-Leste do not have such arrangements in place.
9. Human Intelligence
Except for Algeria, all the other countries use human intelligence to discover more facts about
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10.Collection of Relevant Documents
All the participants agreed that collection of documents touching on the report was necessary. It
was observed that this step needed to be done covertly to avoid arousing the suspicion of those
involved, which could lead to destruction or concealment of the documentary evidence.
11.Surveillance (Visual, Trailing or Physical Tracking)Except M oldova,in the remaining 8 countries,surveillance would be used monitor the activities ofthe suspects. According to the participant from M oldova, surveillance at this early stage before
investigation is considered too intrusive to fundamental rights of the suspects as per the Universal
Declaration of Human Rights. Surveillance firms up the report by confirming the associations ofvarious players and movement of proceeds of corruption.
12.Formalization
This is the stage of arriving at a decision that full investigation should commence;and it occurs
upon acquisition of sufficient information and documents necessary to support such investigation.All
the information and documents acquired are put together in an orderly manner.Formalization requires
sanctioning by an authorized official.
13.Problems Faced by the Countries in Relation to the Intelligence Phase of Investigation
1) Participants from some countries cited slow progress in passing legislation that establishes key
institutions such as FIUs
2) Participants from some countries stated that they had challenges in generation of leads, especially by use of surveillance techniques because of lack of professional training.Lack of modern
surveillance equipment was also cited as a contributor to this problem.
3) Some participants stated that bribery in the private sector is not criminalized.
B. M easures to Detect Corruption Cases (Investigation Step)
The issues on this topic were discussed by the group as agreed, and the prevailing situations in in
the participating countries are summarized as follows:
1. Interception of Electronic Communications (Voice, Voice over IP, Etc.)
Bangladesh, Japan and Timor-Leste stated that they do not intercept communication of suspects
engaged in corrupt activities; the rest of the participating countries do. The justification for thisaccording to Japanese participants is that the countryʼ
s legal framework does not permit interceptionof communication in corruption cases.Warrants are required in some jurisdictions such as Brazil and
M oldova so as to intercept communications.
2. Computer Tracking and Phone Call Tracking (IP, M etadata, GMT/UTC, Etc.)
Cambodia,Japan and Timor-Leste do carry out computer and phone call tracking during investigation of corruption cases.According to participants from Japan,financial institutions are very strict intheir dealings and therefore there is no likelihood of illegal financial transactions.As such it may not
be necessary to monitor computers for any possible illegal transaction. The other participating
countries consider this a rich source of evidentiary materials on the associations and movement ofsuspects as well as procurement details and money trail. Warrants to track calls and computers are
required in M oldova and Brazil.
3. Electronic Surveillance (Inside and Outside, GPS, Drones, Etc.)
Algeria, Bangladesh, Cambodia, Japan and Timor-Leste are the countries which do not use electronic surveillance during the investigation of corruption cases;the other four participating countries
employ such techniques in investigation.
4. Physical Tracking
All the participating countries use physical tracking as a technique for investigating corruption,
especially in tracing suspectsʼmovements and possible exchange.In all the participating countries no280

16TH UNAFEI UNCAC TRAINING PROGRAM MEREPORTS OF THE PROGRAM ME
warrant is required to use this technique of investigation.
5. Eavesdropping (Video, Photo, Voice Recording)
Except for Bangladesh and Timor-Leste the other seven participating countries use eavesdropping
as an investigation technique.Participants from Brazil and M oldova stated that a warrant is required
to carry out video and voice eavesdropping.
6. Postal Interception
Involves clandestine access to a suspectʼs mailbox;upon which information contained in thesuspectʼs
letter(s)is extracted for use in investigation.Brazil and M oldova are the only countries that use postal
interception as an investigation technique, the rest of the participating countries do not.
7. Covert Investigation
All the participating countries use this technique to investigate corruption cases. In Brazil, awarrant from the court and approval of a prosecutor are required for the police to conduct covert
investigation.
8. Undercover Operations (Agents)
All the participating countries except Japan conduct undercover operations while investigating
corruption.
9. Controlled Delivery
Bangladesh, Cambodia, Japan and Timor-Leste do not use controlled delivery as a means ofinvestigating corruption,but the other participating countries use this technique.The participant from
M oldova observed that this technique is very useful and relevant for the case study because it can beused to confirm the delivery of a bribe.
10.Trash Can/Bin Collection
This involves physical surveillance on the suspect and collecting banking slips dropped in trashcans/bin collection.This may contain account details of the suspect,which can now be handed over tothe FIU to monitor any suspicious transactions.Participants from Bangladesh and Moldova stated that
this technique is not regulated in their countries;whereas the rest of the participants observed that it
was in use for investigations in their countries.
11.Access and Monitoring of Financial Activities
Except for Algeria, Japan and Timor-Leste, all the other participating countries monitored thefinancial transaction of suspects in real time, with the assistance of the respective countryʼ
s FIUs. It
was observed that if the investigative agency was interested in real-time monitoring of the account,itwould simply forward the details to the FIU which would carry out the monitoring and share the same
information with the agency.
12.Informants (Plea Bargains)
Algeria,Bangladesh,Brazil,Japan,Namibia and Timor-Leste participants informed the group that
there are no plea bargain arrangements for informants in their countries. On the other hand, plea
bargain arrangements are practised in countries such as Cambodia, Kenya and Moldova.
13.Leniency Programmes
The participants from Algeria, Bangladesh, Japan and Timor-Leste reported that there are no
leniency programmes for suspects who commit corruption offences in their jurisdictions. Cases areinvestigated and processed to logical conclusions whether or not suspects request leniency.
14.Problems Faced by the Countries in Relation to Investigation of Corruption
The participant from Bangladesh stated that they do not use evidence obtained throughwiretapping as there is no enabling legislation.
The participants from Japan stated that their legal framework does not allow wiretapping

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during corruption investigations.
C. Acquiring and Analyzing Objective Evidence
Discussions on this topic were approached by the group following the agreed items as follows:
1. Acquiring and Analyzing Bank Records
All the participating countries stated that in order to obtain objective evidence,it was necessary toacquire bank records of the suspect(s).As a legal requirement,warrants to search the bank records ofthe suspect(s)would be obtained in all the participating countries except Algeria,Cambodia,Japan andNamibia.The participant from Brazil stated that in cases where public money is involved,no warrant
is required to access bank records.
2. Acquiring and Analyzing Other Documents
All the documents relevant to the investigations being carried out are acquired and analyzed asstated by all the participating countries.Relevant expertise would be necessary for each particular setof documents;for example if the documents involved touch on the procurement process,they are better
analyzed by procurement experts.
3. Search and Seizure
Participants from M oldova,Kenya,Timor-Leste,Brazil and Japan stated that searches and seizures
are carried out using warrants.In Kenya and Timor-Leste,the ACA applies for the warrants while,inBrazil,the police or the prosecutor can apply for warrants.The participant from Cambodia stated that
the ACA can search premises with the permission from the prosecutor,whereas,the participants from
Namibia stated that an authorized officer of the ACC can search premises, other than a private
dwelling,without a warrant,while the participant from Cambodia stated that they can search premises
without warrants.
4. Acquiring and Analyzing Account Details
All the participants agreed that acquiring and analyzing account details was necessary, with thehelp of accounting experts.
5. Analyzing Electronic Data
Participants from Japan stated that electronic evidence is analyzed with the input from industry
experts.The other participants stated that they had in-house experts,and in case certain expertise was
missing, they would outsource.
6. Expert Opinions
Except Timor-Leste, which does not have experts in document examination, all the other participants stated that an expertʼ
s opinion was always sought on documents and other evidentiary materials
which required such input.
7. Problems Faced by the Countries in Relation to Acquiring and Analyzing Objective Evidence
Except Algeria,Namibia and Japan,the rest of the participating countries stated that accessto bank records is a challenge because they cannot access the bank details of suspects directly.
In Bangladesh, the ACA cannot acquire tax details of suspects without a warrant. This isconsidered a challenge to investigation of corruption cases.
Participants from Kenya stated that they faced challenges in analyzing electronic data
because of lack of technical capacity.
D. Acquiring Suspect, Accomplice and Witness Statements
The issues on the said topic were discussed by the group as agreed,and the prevailing situations in
the participating countries are summarized as follows:282

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1. Interviewing Witnesses, Including Company Employees and Bank Officials
All the participants declared that it was the practice in their respective countries that, given the
scenario presented by the case study,it would be necessary to interview all witnesses considered usefulto the investigations, including company employees and bank officials. This would help build up astrong case against the suspects by sealing all the loopholes that may be exploited during trial.
2. Interviewing Suspects (Natural Persons and Legal Entities)
All participants stated that the suspect should be interviewed so as to establish his/her line ofdefence.Interviewing a suspect may also lead to a confession,in which case,it will be registered before
a magistrate/judge. Some suspects may request leniency during the interview. The suspect may be
accompanied by their defence lawyers at the interview in all the participating countries except inCambodia where the defence attorney is not allowed at all;and in Japan where the defence attorneysits around the interview area for any possible consultation with the client (suspect). In all nine
participating countries,the right to silence is allowed apart from interviewing the natural suspects;all
the other countries except Brazil would interview the legal entities which may be represented by theirdefence.
3. Compel Suspects to Appear
In all the participating countries, if the suspect fails to appear for an interview, he/she will becompelled by way of summons obtained from court. The participant from Brazil stated that in theirjurisdiction the prosecutor and the judge can compel appearance.The participant from Namibia statedthat if a witness/suspect fails to appear for an interview, he/she will be compelled to furnish theinformation under oath or on affirmation by way of summons issued by the Director of the ACA.
4. Harsh Interrogation
Participants from Bangladesh and Cambodia stated that they sometimes use interrogation in placeof interviews when dealing with difficult suspects. In the other seven participating countries,interrogation is not practised.
5. Plea Bargaining
The participants from Japan and Namibia stated that there are no plea bargaining arrangementsin their respective countries. The other seven participating countries have plea bargaining arrangements in place.
6. Leniency
Leniency is allowed in all the participating countries.
7. Problems Faced by the Countries in Relation to Acquiring Witness, Accomplice or Suspect Statements
Participants from Cambodia, Namibia, Brazil, Japan and Bangladesh lack plea bargaining
frameworks.
Participants from M oldova and Brazil stated that their legal systems do not take legal persons
to task over acts of corruption
E. Domestic Cooperation
The issues on the said topic were discussed by the group as agreed,and the prevailing situations in
the participating countries are summarized as follows:
1. Prosecutors (Supervision and Approval)
All participants stated that the investigative agencies cooperate with the prosecution in the investigation of corruption cases.
2. Investigating Agencies (ACA/Police/Prosecutors)
Except for Brazil and Japan which do not have ACAs,the rest of the participating countries haveestablished ACAs to investigate corruption cases.

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3. Examining Judges
Only Algeria has examining judges undertake investigations on corruption.
4. Supervising Judge (Warrants and Orders)
All the participating countries except for Algeria stated that they need to cooperate with asupervising judge for the purpose of obtaining warrants or other court orders.
5. Financial Intelligence Units
All the participating countries stated that they cooperate with their respective countriesʼFIUs.
6. Revenue and Tax Authorities
Algeria has no tax authority, but the rest of the eight participating countries have tax authorities
which they cooperate with in investigation of corruption cases.
7. Customs
All the participating countries stated that they cooperate with their respective countriesʼcustoms
offices.
8. Task Forces
All the countries except Algeria stated that they cooperate by way of task forces to investigate
corruption cases.
9. Private Sector Organizations
All the participating countries stated that they cooperate with the private sector in investigating
corruption.
10.Government Regulatory Agencies
All the participating countries stated that they cooperate with government regulatory agencies ininvestigating corruption.
11.Problems Faced by the Countries in Relation to Domestic Cooperation
Bangladesh lacks access to tax authority systems to acquire necessary evidence
Poor working relationships between examining judges and prosecutors in Algeria.
F. Identifying, Tracing and Freezing Proceeds of Crime
To prevent flight and concealment of assets already identified and associated with the suspect andaccomplices, it is necessary that they are frozen, according to all the participants. Participants from
Bangladesh,Kenya and Timor-Leste stated that the ACA is empowered by law to freeze assets by wayof a court order.The participant from Namibia stated that the Prosecutor General is charged with the
responsibility of freezing suspectsʼassets.In Cambodia,the ACA can freeze the assets with permission
from the Prosecutor. In Algeria, Brazil and Japan, freezing of assets is the responsibility of theprosecutor through court orders. Asset recovery represents an important issue of anti-corruption
authorities, because the proceeds of crime are often very hard to identify and trace.
A majority of participants stated that proceeds of crime that consist of immovable or movable
goods can be identified by accessing information from public databases or by gathering information
through intelligence.Some participants mentioned the importance of property databases in preventing
leakage of information about the investigation. Most of the participants stated that anti-corruption
authorities need a warrant to access suspectsʼbank information.
The participants agreed that FIUs, MOUs or Interpol channels can ensure rapid tracking of theproceeds of corruption if the proceeds were deposited in bank accounts. In addition, the participants
highlighted the importance of international collaboration and specified that the majority of countries
have different means of mutual legal assistance in order to trace and freeze proceeds ofcorruption suchas:treaties and agreements,MOUs,law enforcement cooperation (Interpol,JIT,FIU-FIU information

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sharing, etc.), informal channels, etc. The participants found that Algeria conducts non-convictionbased repatriation of frozen proceeds of corruption.
M ost of the countries can freeze assets of an individual before bringing charges against a suspect,
as well if the property over the assets related to crime was transmitted to third parties.In Brazil,thefreezing of assets can be performed based on civil cases of corruption against legal entities.
All the participants mentioned that, in their respective countries, law provides measures forsecuring the recovery of damages caused by the crime and for guaranteeing the execution of apunishment by fine.M easures for securing the recovery of damages consist offreezing the movable andimmovable assets.
A majority of the participants agreed that their countries should follow the example of Bangladesh,
when the burden of proof is shifted to the defendant with respect to the origin of ill-gotten assets.
Participants consider that criminalization of illegal enrichment should be enacted in their countries.

IV. RECOM M ENDATIONS TO IMPROVE/DEVELOP INVESTIGATIONM EASURES IN EACH COUNTRY
The measures to improve/develop investigation in each country were recommended as follows:
1. All the participants agreed that the plea bargaining system should be considered in countries where
possible due to its advantages.
2. All the participants agreed that legislation on corruption should be reviewed so as to enable holding
legal persons accountable for acts of corruption.
3. All participants agreed that ACAs,police and prosecutors should be able to directly access banking
institutions without warrant.
4. All the participants agreed that ACAs should develop technical and technological skills so as toenable them to analyse technical evidence including electronic evidence.
5. All the participants agreed on establishing an inclusive approach between the ACAs, police,prosecutors and other agencies that play roles in the justice system.
6. All the participants agreed that the ACAs should be connected to all government ministries anddepartments/agencies to enable easy access of any relevant information.
7. All participants agreed that cooperation between law enforcement agencies and private companies
was very crucial in aiding law enforcement and, therefore, should be encourage and sustained.
8. All the participants agreed on the importance of legislation to establish FIUs.
9. All participants agreed that the law should enable the use of evidence obtained through eavesdropping to prove a case.
10.All participants agreed that anti-corruption agencies should pay special attention to asset recovery.
11.All participants agreed that governments should encourage international collaboration for tracing,
freezing and repatriation of frozen proceeds of corruption.
12.All participants agreed that countries should consider the possibility of freezing of assets based on
civil cases of corruption against legal entities.
13.All participants agreed that insurance of anti-corruption authorities with on-line free access to all
the public property databases without any restrictions as well as establishment of databases should be

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done.

V. QUESTION
1-a) What steps should Anti-Corruption Agency B take, and in what order, to collect sufficientevidence to take this case to court?
All the participants stated that in order to investigate the case adequately, it was important thatcovert techniques were used initially so as to avoid leakage and concealment of evidence.The covert
methods that can be used are wiretapping, computer tracking, surveillance, and communicationinterception for the ongoing case (company E bribe);FIU,MOU,and Interpol report,for the past case(company F bribe). After sufficient information has been acquired then the investigative agencies
should employ overt methods of investigation, such as search warrants, freezing suspect assets, andinterview of witnesses and suspects.
The participants observed that both crimes required priority attention;therefore they should be
handled simultaneously. The participants noted that securing of evidence, suspects and assets was ofgreat importance.However,the participants noted that in the event of limited resources which usually
happens in practice,it is better to focus on one case.The participants from Namibia,Kenya,Brazil andJapan stated that they would pursue the past crime, whereas the participants from other countries
would pursue the ongoing crime.
1-b) How should Anti-Corruption Agency B cooperate with prosecutors or the examining court
judge in the collection of evidence?
The participants stated that formation of a task force was the best way of ensuring cooperation
between the ACA,the prosecution and the examining court judge.In the participating countries where
there are no ACAs,the police,prosecution and all the other agencies which have valuable input to law
enforcement should cooperate.Cooperation between agencies enables sharing of resources and enables
speedy acquisition.

VI. CONCLUSION
The group thoroughly deliberated and discussed the current issues and problems of each participating country relating to effective measures to investigate corruption cases.Following thorough discussion, the group concluded certain recommendations and necessary measures to be implemented in theparticipantsʼcountries for the development and improvement of the criminal justice system focusing
mainly on investigation of corruption cases.However,it is noted that the measures and recommendations in this report may be adopted in each of the respective countries based on the necessity andsuitability for the ultimate achievement of an effective and efficient criminal justice system.

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GROUP 2
EFFECTIVE MEASURES TO ESTABLISH SYSTEM S TO PREVENT AND
COM BAT CORRUPTION
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
M embers

AdviserMs. Oris Idalmis JAEN FERNANDEZ
Mr. David Gathii WAM BUGU
Mr. Alexandru DONCIU
Ms. Shizu KOYAMA
Mr. Mohammad Saidur RAHMAN
Mr. Hideyuki INUKAIMr. Takayuki SAKAI
Mr. Martin Otieno OBUO
Ms. Khin M yat TAR
Mr. Myo Khaing SWE
Mr. Abraham Nikolous IHALUA
Mr. Apichai THONGPRASOM
Prof. Yusuke HIROSE(Panama)(Kenya)(M oldova, Rep. of)(Japan)(Bangladesh)(Japan)(Japan)(Kenya)(M yanmar)(M yanmar)(Namibia)(Thailand)(UNAFEI)

I. INTRODUCTION
The group started its discussions on 25 October 2013. The group, in its first meeting, elected byconsensus Ms. Oris Idalmis JAEN FERNANDEZ (Panama) as its Chairperson, M r. David Gathii
WAM BUGU (Kenya) as co-Chairperson, M r. Alexandru DONCIU (Moldova) as Rapporteur and Ms.
Shizu KOYAMA (Japan)as co-Rapporteur.
Corruption continues to be a major challenge to a majority of developed and developing countries,
with the latter being hardest hit. All countries represented in the group had put in place various
measures to prevent and combat corruption.The countries had signed the United Nations Convention
Against Corruption (UNCAC) and, with the exception of Japan, ratified it. Implementation of the
UNCAC was at various but advanced stages of implementation with regular reviews and reporting on
progress. Apart from the establishment of robust criminal justice systems through which cases ofcorruption were processed and enactment of anti-corruption laws,a majority of the countries,with the
exception of Japan, had also established anti-corruption agencies charged with enforcement throughinvestigations and asset tracing, prevention and education.
The groupʼs aim was to establish :effective measures to prevent and combat corruption in regard
to the current situation of corruption in each country,effective systems to prevent corruption,effective
systems ofcapacitybuilding in each country,and problems and countermeasures related to establishingsystems to prevent and combat corruption in each country.

II. SUMMARY OF DISCUSSION
A. Current Situation of Corruption in Each Country
In order to have a clear picture of the current situation of corruption in each country, members
considered the report by Transparency International (TI)regarding the Corruption Perception Index
2012 (CPI). According to this index, the countries represented in the group fared as follows:
JAPAN
Japan was ranked 17th among 176 evaluated countries.Participants from Japan noted that corruption
mainly spreads in local administrative authorities,particularly in the field of public procurement.For
example, a public official of local government gets a kickback from the construction company andleaks cost estimates for construction projects coming up for bidding.
NAM IBIA
Namibia was ranked 58th in the world. M ost of the corruption happens in law enforcement agencies,

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the judiciary and government ministries such as customs and immigration control.
PANAM A
Panama was ranked 83rd out of 176 countries.The majority of the corruption cases relate to embezzlement,abuse of authority and public procurement,among others.M ost of these cases are highlighted in
the media, hence the higher perception of corruption in the country.
THAILAND
Thailand was ranked 88th out of 176 countries. Corruption in the public administration system hastaken place for a long time in Thailand.The Thai people somehow accept the reality that corruption
is inevitablypart ofthe system and when an ordinarycitizen or honest business people seek the services
from governmental authorities or politicians, a small fee or reward may be given to officials in
exchange of convenience and speedy services. In the eyes of the public,this does not count as corruption.
REPUBLIC OF MOLDOVA
Republic of Moldova was ranked 94th among 176 countries. Corruption is mostly prevalent in the
judicial system, health sector, law enforcement and other public authorities.As an ex-Soviet country,
M oldova inherited the soviet way of life which tolerates bribes and other corrupt acts. Moreover,political patronage in all public authorities allows corruption to thrive.
KENYA
Kenya was ranked 139th out of 176 countries. Corruption is endemic in Kenya and has eaten into thesocio-economic and political fabric of the country.Corruption mostly thrives in politics,administrative
authorities: police, immigration, revenue and lands departments, and criminal justice authorities.
Corruption spreads in Kenya mainly in the following fields:public procurement, the criminal justicesystem, immigration and tax collection. Corruption is therefore an existential threat to the economy
and national security in Kenya.
BANGLADESH
Bangladesh was ranked 144th out of 176 countries.The people ofBangladesh are engaged in corruption
due to poverty, over-population and inadequate resource. Public servants, non-state actors, politicalleaders are also engaged in corruption.Corruption is rampant in the service sector.The entrepreneurs
face problems in obtaining loan facilities and administrative facilitation without illegal payments.
Public officials and politicians misappropriate funds set aside for development.
M YANM AR
M yanmar was ranked 170th out of 176 countries.Most corrupt activities take place within administrative and criminal justice authorities. Corruption is rampant due to the fact that salary of public
servants is lower than in other countries. However, it is difficult to determine the exact fields ofcorruption for want of credible data.
In light of the foregoing, it is imperative to put in place effective systems to prevent and combat
corruption in countries represented in the group.
B. Effective System to Prevent Corruption
1. Establishment of Authorities to Prevent Corruption
Group members noted that in their countries,there are established authorities charged with responsibility of preventing and combating corruption.In the case of Japan,there is no specialized authority
to prevent corruption. However, there are effective mechanisms to prevent corruption put in place ineach public authority.
All members stated that they have Anti-Corruption Agencies (ACA) in their respective countries
with the exception of Japan.For example,in Moldova the National Anti-corruption Centre has power
to prevent corruption. In Thailand, many government authorities are set up to monitor, prevent andefficiently suppress corruption cases.These include the National Anti-Corruption Commission (NACC)
and the Office of Public Sector Anti-Corruption Commission.NACC is mandated to deal with declara-288

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tion and inspection of assets and liabilities, prevention of corruption and suppression of corruption.
The participants from Kenya stated that the Ethics and Anti-Corruption Commission has been
established which is mandated to prevent corruption in line with the UNCAC requirements. Furthermore, the Constitution of Kenya 2010 requires the National Police Service to prevent corruption.The
National Land Commission is also charged with the responsibility of stamping out corruption in theland sector.Moreover,the National Anti-Corruption Campaign Steering Committee was established toprevent corruption through sensitization and awareness creation to the public.
The members pointed out that though most ofthe countries have ACA,there is a need to define theirpowers and functions in order to make them more effective in preventing corruption. These include
proper governance structures,accountability,declaring conflicts of interest and having enough powers
to ensure that their recommendations after audit of public entities are implemented. In addition, the
ACA should be well resourced in order to fully support their operations.
The functions of these authorities should include corruption risk assessment,systems,policies andprocedures audits,education,sensitization,awareness creation,developing codes of conduct in private
and public sectors and development of strategies to prevent corruption.
2. Establishment of Independent Authorities to Investigate Corruption
The members were of the view that the afore-mentioned preventive measures would not be effective
unless independent authorities to investigate corruption are established.All the participants stated thatthey have in their countries independent authorities that investigate corruption cases.Such authorities
should be independent,well resourced with the capability to initiate their own investigation and havespecial investigative powers such as eavesdropping,wiretapping,surveillance,and search and seizure,among others.
The members strongly felt that both investigation and prosecution should be conducted under thesame roof to effectively combat corruption cases.M embers concluded that there should be robust andadequate legal framework to anchor the above measures.
3. Systems to Ensure the Independence of Criminal Justice Authorities
For corruption to be effectively dealt with, the members agreed that systems must be put in place
to ensure the independence of the criminal justice authorities as follows:(a)Independence of the judiciary
Independence of the judiciary must be guaranteed in the constitutions of the respective countries.
This will enable the adjudication of corruption cases without undue interference.M embers suggested
that the appointment of judicial officers should be fair, transparent, competitive and insulated frompolitical interference and other vested interests. Judges should have security of tenure and should be
only removed from office by an independent tribunal.They should have a fixed retirement age,be wellremunerated and that the pay should not be reduced during their term of service.Members agreed that
judicial officers should be transferred after a fix period of time according to a transfer policy formulated by the judiciary itself.
(b)Prosecutorial independence
All participants agreed that prosecutorial independence should also be guaranteed in the constitution, and the Public Prosecutor should not be under the direction or control of any authority.
(c) Investigative independence
M embers agreed that investigative agencies should be independent and this must be guaranteed in
the constitution. The recruitment and selection of personnel in these agencies must be competitive,
transparent and fair.
(d)Codes of conduct for public officials
M embers were unanimous that there should be one code ofconduct for public servants,as is the casein Japan and Panama. The code of conduct should provide for sanctions in cases of breach by public289

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servants as well as declaration of income, assets and liabilities for the official, spouse and dependent
children.The declarations should be submitted periodically and also upon appointment,promotion andexit from service. These declarations should be easily accessible to the law enforcement agencies.
(e) Systems to Manage Public Procurement
During group discussions,it was agreed that the management of public procurement is an importantand critical problem in many countries. A case in point is Japan which faces the problem of public
procurement and has adopted the Overall Evaluation System. This system enables the prevention of
dumping and bid-rigging and expulsion of delinquent, disqualified companies etc., by allowing only
qualified contractors to participate in public procurement.It also enables the prevention of bid-rigging
by considering non-pricing factors.
Finally,group members came to a consensus on the following principles to manage public procurement:open tendering,sufficient time to prepare and submit tenders,transparent evaluation and award
process;and avenues for appeal.
(f) Measures to prevent corruption by encouraging cooperation between public and private sectors
M embers noted that there is a need for cooperation and involvement of the citizens and the private
sectors in supporting measures to prevent corruption. It is important to encourage the spirit ofcooperation between both sectors.Corruption in the private sector has an impact on the public sector.
M easures to prevent corruption in the private sector may include signing corporate integrity pledges,
establishing risk and compliance units and promoting corruption reporting within corporations.
M embers agreed that it is important to ensure active public participation in anti-corruption initiatives.Their participation may include refusing to give/receive bribes,reporting corruption,recording
statements and testifying in courts of law and other forums.
Participants from Japan stated that in each organization, public and private, employees are
educated to obey the relevant laws.The group members suggested the following measures to encourage
the participation of private and public sectors:active participation of civilians in the fight against
corruption, trust in institutions and processes to deliver results, public education, sensitization andawareness creation, public campaigns, enactment of law to address corruption in the private sector,
media advertising, civil society involvement and access to relevant information.
C. Effective Systems of Capacity Building in Each Country
1. Necessary Expertise and Abilities
M embers were of the view that in order to effectively prevent and fight corruption it is necessary
to build capacity in each country. For example in Namibia there is a huge backlog of cases in the
Courts. The Magistrates, Judges and Prosecutors are also not enough to deal with the cases. In
M yanmar,for financial,accounting and fiscal expertise,officers from the Office ofAuditor General arerequested to check financial affairs and where necessary, private accountant firms are engaged byinvestigators. Further, experts from the Information and Communication M inistry may perform
computer forensics to assist the investigations.
M embers agreed that the main expertise and abilities necessary for effective systems of capacity
building in each country include:financial, accounting and fiscal expertise, analysing financial evidence and computer forensics.Where necessary,specialized divisions to perform fiscal expertise within
ACA may be established.
The participants agreed that for a better case management, it would be advisable to have thesetypes of expertise within ACAs. Participants stated that it was necessary to build capacity to ensure
fair,speedy and organized investigation and trial of corruption cases.It was also recognized that lackof timeframe for trying corruption cases,as is the case in Thailand and Moldova,hinders proper casemanagement.
Further, members agreed there was a need to build capacity of public officials to enable themconduct official business in an ethical manner. Consequently, newly hired public officials should be290

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instilled with public ethics while at the same time,establishing systems of reward and punishment for
unethical conduct.
2. M easures to Ensure Expertise
As a measure to ensure expertise,members stated that ACAs must competitively recruit specialists
in different areas.These specialists must be trained continuously to be up to date with emerging trends
in corruption.The training should encompass short and long courses,exchange programmes and study
tours,on the job training,mentoring and partnership with academic institutions to promote excellence.
Since it is not possible to have all the expertise required to investigate corruption under one roof,
members stated that is was necessary to outsource to the private sector.Outsourcing also supplements
the expertise available within ACAs.Outsourcing can also be used as a means of technology transfer.
It is important to have a pool of highly specialized bodies of investigators,prosecutors and judges
in the investigation,prosecution and hearing of corruption cases respectively.This is a highly specialized area that requires specialized personnel.
D. Problems and Countermeasures Related to Establishing Systems to Prevent and Combat Corruption in Each Country
M embers appreciated that preventing and combating corruption is faced with many challenges,andthere is a need to identify them and suggest countermeasures to establish effective systems.Therefore,
it was unanimously agreed to identify problems and countermeasures related to the establishment ofsystems to prevent and combat corruption in each country, as follows:
1. Lack of Political Will
Commitment of the top political leadership to the goal of eradicating corruption in countries isweak, as has been the case in many of the group membersʼcountries. Most governments only pay lip
service to the fight against corruption.Anti-corruption reforms,in this regard,are therefore bound to
fail.
M embers proposed the following countermeasures: political party manifestos should containpledges to prevent and combat corruption as a priority. The citizens should hold their leaders toaccount in this regard.
2. Political Influence and Interference
The participants felt political influence and interference is a threat to the establishment of effective
systems to prevent and combat corruption. The budgetary allocation process, which is controlled bypoliticians, was cited. Interference in the appointment of the heads and staff of ACAs, among others,
was also cited.The group agreed that it is necessary to guarantee independence in the constitution anddevelop well-defined policies to avoid political influence.
3. Lack of Adequate Legal Framework
All members agreed that though the UN Convention Against Corruption (UNCAC) provides a
powerful tool to strengthen anti-corruption programmes, ACAs continue to be denied adequate legal
frameworks to fight corruption. Some participants stated that in their countries, ACAs do not havepowers to investigate corruption in the private sector, while in others, ACAs are denied special
investigative powers such as wiretapping, etc.
As a countermeasure,members were of the view that the legal framework should be strengthened.
In this regard ACAs should have powers to prevent corruption through laws that allow improvement
in collection of evidence, investigation, prosecution, asset tracing and seizure, intervention in theprivate sector and mutual legal assistance.
4. M ind-set of the Citizens and Public Officials
All participants agreed that the mind-set of the citizens is a threat to establishment of effective
systems. They noted the culture of “giving”gifts promoted corrupt practices. In some countries thecitizens think that they have no responsibility in the fight against corruption,yet they are on the supply

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side of the corruption equation. Citizens also donʼt view corruption as a crime, but as mutual obligations and mutual benefits.
M embers proposed extensive public education, sensitization and awareness of citizens to promotemoral and ethical behaviour. This will enhance the public officialsʼintegrity in the society.Engaging
citizens in fighting corruption through providing information/feedback (change the public perception
and expectations), involvement of mass-media, positive engagement, call-in programmes, debatecompetitions, establishment of local civilian oversight committees, establishment of a system toempower people to report incidences of corruption without reprisal.
5. Lack of Equipment (Advanced Technology, Transport, Etc.)
All participants agreed that a lack of appropriate equipment and advanced technology could
hamper the development of effective measures to prevent and combat corruption.Persons engaged incorrupt activities have embraced new technology making it hard to detect and collect evidence.Lackof modern equipment and technology makes it difficult for investigators to deal with corruption cases
effectively.The same applies to the delivery of the public education programmes.The group,therefore,
recommended acquisition of modern technology and equipment.
6. Human Resources
The group noted that human resources are an important factor in the establishment of effective
systems.M ismanagement of human resources through unfair recruitment,appointment without transparent policy, lack of motivation and low salaries was cited.
Participants stated that it is necessary to develop clear policies as far as recruitment,appointment,
management and development of human resource are concerned. There is also the need for establishment of an independent body for recruiting and selection as well as enhancing salaries according toliving standards and competitiveness and developing reward programmes.
7. Insufficient Funds
The participants agreed that the lack of reasonably adequate funds undermines the efficacy of theanti-corruption systems.The members were of the view that funding policies should be developed andimplemented. ACAs should be allowed to receive support from NGOs, foreign authorities for campaigns training and advertisements.
8. Bureaucracy (Process Length, Inefficiency)
M embers identified bureaucracy as a threat to the establishment of effective systems.Lengthy andcomplex processes frustrate the service delivery and provide opportunities to extort and offer bribes.
M embers recommended the development and promotion of service delivery charters,automation of themanual processes and review of policies, procedures and processes.
9. Lack of Interagency Cooperation
All participants agreed that lack of mutual trust and working at cross purposes by law enforcement
agencies pose a threat to the establishment of systems to prevent and combat corruption. Members
noted that there is need to foster cooperation between the agencies, develop better communication
mechanisms and demonstrate unity of purpose. Agencies are encouraged to sign M emoranda ofUnderstanding (MOUs)and build synergies.
10.Lack of Supervision
The participants noted that lack of supervision is a threat to establishment of effective systems as
the staff may lose its sense of direction and focus. Members, therefore, recommended the following
countermeasures:open-space office policy,hands-on management,visiting and inspecting subordinatesʼ
workplaces.

III. CONCLUSION
M embers appreciated that fighting corruption through investigation and prosecution of the corruption cases was very expensive.Corrupt individuals who had illegally acquired public resources would292

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not hesitate to deploy such resources to circumvent legal processes. The group was therefore of theview that establishing effective systems to prevent and combat corruption should be governmentʼ
sprimary concern.Consequently sufficient resources,political will and support should be fostered by all
stakeholders.
The participants unanimously agreed that creating awareness of the people and engaging the civilsociety, mass-media, private and public sector cooperation in preventing and combating corruption is
the ultimate goal for zero tolerance of corruption.

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APPENDIXCOMMEMORATIVE PHOTOGRAPHS
155th International Training Course
16th UNAFEI UNCAC Training Programme

UNAFEIThe 155th International Training Course andthe Comparative Study on Criminal Justice Systems ofJapan and Nepal

Left to Right:Above
M r. Strang (United States)
4th Row
M s. Nishi (Staff), Ms. Kita (JICA), Ms. Suzuki (Staff), Ms. Yamada (JICA), Mr. Bhattarai(Nepal), M r. Paudel (Nepal), M r. Harnyk (Ukraine), Mr. Gray (Vanuatu), Mr. Borges de
M endonça (Brazil), Mr. Rai (Nepal), Mr. Sharma (Nepal), Ms. Hichiguro (Staff)
3rd Row
M r. Furuhashi (Staff), Mr. Hayasaka (Staff), Mr. Fukuta (Staff), Ms. Kondo (Japan), M r.
Shrestha (Nepal),Mr.Fukushima (Japan),Mr.Bejenaru (Moldova),M r.Snegirov (Ukraine),M s.
Oliinyk (Ukraine),Ms.Suzuki (Japan),Mr.Saleem (Maldives),Ms.Kongsrisook (Thailand),M s.
Adhikari (Nepal), Mr. Regmi (Nepal), Ms. Iwakata (Staff)
2nd Row
M r. Toyoda (Staff), Mr. Honda (Staff), Mr. Kiyota (Japan), Mr. Kodama (Japan), Mr.Dorji(Bhutan),M s.Sudti-Autasilp (Thailand),Mr.Tashi (Bhutan),Mr.Kinlay(Bhutan),Mr.Parajuli(Nepal), M r. Kawata (Japan), Ms. Namekata (Japan), Mr. Shatheeh (M aldives), M r. Taghiyev(Azerbaijan), Mr. Moussa (Guinea), Mr. Dhungana (Nepal), Ms. Yamada (Staff), M s. Sakai(Chef)
1st Row
M r. Tada (Staff), M r. Ando (Staff), Prof. Moriya, Prof. Tsunoda, Prof.Mio,Prof. Iwashita,
M r. Curtis (United Kingdom), Director Akane, Deputy Director Kiyono, Prof. Hirose, Prof.
Yokomaku (Japan), Prof. Tashiro, Prof. Nagai, M r. Sugiyama (Staff), Mr. Schmid (LA)The 16th UNAFEI UNCAC Training Programme

Left to Right:Above
M r. DatoʼAbdul Wahab Bin Abdul Aziz (Malaysia)
M s. Rebecca Li (Hong Kong)
4th Row
M s.Nishi (Staff),Mr.Hayasaka (Staff),Mr.Toyoda (Staff),Ms.Yamada (Staff),Ms.Suzuki(Staff), M r. Fukuta (Staff), Ms. Hichiguro (Staff), Ms. Iwakata (Staff)
3rd Row
M s. Sakai (Chef), Mr. Honda (Staff), M r. Rahman (Bangladesh), Mr. Yamada (Japan), Mr.
Thongprasom (Thailand), Mr. Crismaru (M oldova), Mr. Nakabayashi (Japan), Mr. Rabbani(Bangladesh),M r.Ihalua (Namibia),Mr.Nuon (Cambodia),Mr.Sato (Japan),Mr.Inukai(Japan),M r. Aras (Brazil)
2nd Row
M r.Furuhashi(Staff),Ms.Yamamoto (JICA),Mr.Kemboi(Kenya),Ms.Koyama (Japan),Ms.
Thingini(Kenya),M s.Namukwambi (Namibia),M s.Khin (Myanmar),Ms.Fernandez (Panama),
M r.Amral (Timor-Leste),Mr.Touti (Algeria),Mr.Myo (M yanmar),Mr.Sakai (Japan),M r.Ito(Japan), M r. Obuo (Kenya), Mr. Wambugu (Kenya), Mr. Donciu (M oldova)
1st Row
M r. Schmid (LA), Mr. Sugiyama (Staff), Prof. Nagai, Prof. Tashiro, Prof. Iwashita, Prof.
Hirose, Deputy Director Kiyono, Director Akane, M r. Green (United Kingdom), Prof. Moriya,
Prof. Tsunoda, Prof. Yoshimura, Prof. Mio, Mr. Ando (Staff), Mr. Tada (Staff)