REPORTS OF THE COURSEGROUP 1IDENTIFYING AND PUNISHING CORRUPT OFFENDERS
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Advisers

Mr. Joel Noble Done
Mr. Masayuki Miyazaki
Ms. Marija Novkovic
Ms. K. H. Subashini Siriwardena
Mr. Wa’el Mahmoud Mohammad
Mr. Camillo Afele
Mr. Man Bahadur Aryal
Ms. Vorayanee Vudthithornnatirak
Mr. Tien Thanh Le
Mr. Tareq Ahmed Abdo Al-Gumaei
Mr. Yukio Matsui
Mr. Haider Akram Al-Zaidi
Mr. Makoto Wada
Deputy Director Takeshi Seto
Professor Naoyuki Harada(Papua New Guinea)(Japan)(Montenegro)(Sri Lanka)(Palestine)(Samoa)(Nepal)(Thailand)(Vietnam)(Yemen)(Japan)(Iraq)(Japan)(UNAFEI)(UNAFEI)

I. INTRODUCTION
Group 1 started its discussion on 25 July 2009. The Group elected by consensus Mr. Done as Chairperson,
Mr. Miyazaki as Co-chairperson, Ms. Novkovic as Rapporteur and Ms. Siriwardena as Co-rapporteur. The
group, which is assigned to discuss “Identifying and punishing corrupt offenders”, agreed to conduct its
discussion in accordance with the following agenda:
1.
2.
3.
4.
5.

Identifying corrupt offenders;
Proactive approach to collecting information and/or evidence;
Identifying and tracing crime proceeds;
Seizure, freezing and confiscation;
International co-operation.

II. SUMMARY OF DISCUSSIONS
A. Identifying Corrupt Offenders
The Group chose not to define corruption, rather to focus its discussion on detecting perpetrators ofthese offences. The first topic on the agenda was the method for identifying corrupt offenders. Following alengthy debate, the Group concluded that, due to the clandestine nature of offences of corruption, competentauthorities need to employ an array of measures so as to collect clues of corruption.
Firstly, the Group discussed the issue of protection of persons who disclose information on criminal
offences of corruption to the competent authorities. There was an agreement across the table that it isnecessary to encourage persons with knowledge of criminal activity to co-operate with law-enforcement
authorities. Therefore, these persons should be awarded suitable protection so as to limit any undue
consequences. In most countries, civil servants are protected from undue consequences, e.g. termination of
employment. However, the protection should be more substantial and should include protection of identity,
confidentiality in processing the report at all stages of the proceedings and, ultimately, protection of physicalintegrity and/or relocation.
When adopted, these measures need to be communicated to the citizenry in a form of a continuous
information campaign, in order to encourage them to co-operate with the competent authorities. However, it
was rightly pointed out by the Group that protection of whistleblowers might present substantial challenges
in small countries.
Award or other types of incentive for people who have information on corruption offences was ardently

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discussed. This approach has both positive and negative consequences and it should be carefully considered.
For this reason, the Group could not reach a consensus on this matter.
The Group went on to inspect the issue of granting immunity to corrupt offenders, in order to allow fora successful prosecution in those cases where collection of evidence is significantly difficult or impossible.
In some jurisdictions, e.g. Palestine, the prosecution is empowered to do so. However, plea bargaining is notallowed in Japan.
Moreover, the group discussed whether it would be beneficial to consider mitigation of punishment
for those offenders who co-operate with the authorities. It was highlighted that such an approach would
contribute to more successful prosecutions. However, it was also mentioned that, for judges, the statementsof accomplices may lack credibility. In such cases, other independent evidence is necessary to corroborate
the constituent elements of the offence.
The issue of the independence of institutions in charge of investigation was addressed as a prior requirement
for a successful investigation. The independence of the institutions and their ability to follow up on the reports ofthe citizens will influence public trust, and could cast away any reluctance of the citizens to co-operate with theinvestigative authorities.
Summary of recommendations:1.

In countries where needed, existing laws should be amended so as to incorporate measures whichguarantee protection to persons who disclose information on criminal offences of corruption to thecompetent authorities;

2.

Protection of witnesses and victims should be implemented, pursuant to the requirements of Article
32 of the UNCAC;

3.

The protection which is guaranteed in respect of public sector employees should also be afforded tothose employed in the private sector;

4.

Granting immunity or mitigating punishment to those offenders whose testimony or co-operation isvital for the prosecution should be considered;5.

Independence of institutions should be secured, so as to enable effective investigations of corruption
offences, without any undue influence. These institutions should be given broad access to files,
documents, databases, etc.

B. Proactive Approach to Collect Information and/or Evidence
The Group discussed possible ways to initiate an investigation. An avenue of formal complaint by citizens
or organizations was mentioned as a typical commencement of the investigation, as well as independent
initiation of the proceedings by the national anti-corruption authorities. Secondly, the Group elaborated on
the use of information communicated in the media. The Group recollected the experience of Singapore’s
anti-corruption authority which is empowered to follow up on a media report or other sources where there
are allegations of corruption. In countries like Thailand, Yemen, Japan, Samoa and Nepal, the situation issimilar to that of Singapore. The institutions can initiate investigations based on suspicions of corruption
independently, without a formal complaint. However, in countries like Papua New Guinea and Sri Lanka, thisis rather scarce, or there needs to be a formal complaint to start investigations.
Though media reports and other sources of information, e.g. the World Wide Web, can be highly valuable
in gathering clues of corruption, it was mentioned that extreme caution is needed when handling thesesources. The ownership of the media is one of the elements which need to be taken into account as it is
not uncommon for the media to be owned by the political parties and/or interest groups. Therefore, media
reports on corruption offences could be misleading or defamatory and require utmost vigilance.
The Group proceeded to discuss the handling of anonymous complaints of corruption. Anonymous reports
should not be disregarded though the proper handling of anonymous reports is rather complex and requires
a great deal of attention. Prior to the initiation of the investigation of an anonymous report, the backgroundof the accused person should be verified in terms of e.g. previous convictions and/or suspicious behaviour.
The information provided in this manner could be well-founded, thus enabling the investigative authority to200

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uncover offences. However, in treating these types of reports, greater attention should be paid to safeguarding
the human rights of all involved.
Investigation of related offences was also singled out as a useful approach in obtaining initial intelligence
which can be used as a basis for an investigation into corruption offences. During investigation of otheroffences corruption might be unveiled. It was agreed that this is a very effective method for finding clues ofcorruption.
There is now a general understanding that corruption, due to its clandestine nature, cannot be detectedusing conventional investigative techniques. In some countries, the investigative authorities may use special
investigative techniques such as electronic surveillance, simulated active and passive bribery, controlled
delivery, undercover operations, etc. However, in some countries there are limitations as to the use of thesemeasures. For example, in Sri Lanka, wire-tapping is not used in investigation of corruption offences as thelack of technical equipment and financial resources presents an obstacle. In Montenegro, these measures
may be used for offences of organized crime and offences sanctioned with imprisonment of more than ten
years; there are legislative efforts to enable the use of these measures in investigation of corruption. It wasrecalled by the Group that introduction of these investigative techniques is one of the requirements of the
UNCAC.
Summary of recommendations:1.

A proactive approach is recommended. National anti-corruption authorities should be empowered toverify the accuracy of allegations of corruption communicated by the media or other sources, e.g. theInternet. However, following up on a media report requires utmost vigilance.

2.

Anonymous complaints of corruption should not be ignored; however, there should be a developed
methodology which provides clear guidelines on the course of action as regards anonymous reports.

3.

There should be an opportunity for authorities to initiate investigations independently and without aprior formal complaint.

4.

Relevant legislation should provide for the use of special investigative means in investigation ofcorruption cases. Where necessary, training on the use of these sophisticated techniques should
be provided to the law enforcement agencies and the prosecution offices. Specific techniques to beconsidered are:(a) Wire tapping and/or electronic surveillance;(b) Controlled delivery and/or simulated active/passive bribery;(c) Undercover operations.

C. Identifying and Tracing Crime Proceeds
As offences of corruption are predominantly driven by the desire to accumulate wealth illegally, identifying
proceeds of crimes becomes a primary issue. Therefore, the Group discussed bank secrecy and its implications
for investigation of corruption offences.
It was mentioned that in some countries a search warrant is needed to access bank records and accountstatements, whereas in Thailand the police are authorized to access bank accounts of suspects withouta court order. However, the real issue lies in the fact that the offenders deposit their proceeds in foreignbanks. Therefore, there is dire need for international co-operation.
The Group proceeded to discuss access to information which is compiled by various government agencies.
It was stated that in all countries public officials are obliged to disclose their income and property on a regularbasis. This data should be used to gather clues of corruption, particularly if there are evident discrepancies
between the registered income and the person’s affluent lifestyle. However, the issue of administrative
capacity to verify these declarations was raised. For example, in Sri Lanka there is no designated authority toperform this task. In Japan, it is the executive officers who supervise the declarations of their staff and in caseof suspicion, they may refer the case to the internal or external inspection authority.
Apart from the obligation to disclose income and property, it was mentioned that investigative authorities
may request information to be provided by a government agency. This is commonly done in Japan, and the201

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relevant authorities have been co-operative to date.
Ensuring the secrecy of investigation was also singled out as a matter of concern. It was mentioned thatgathering evidence of corruption is significantly difficult, and this task is made even more tedious in an
event where information leaks, giving the offender enough time to hide or destroy evidence. Therefore, theGroup agreed that the secrecy of investigation needs to be safeguarded at all costs. This could be achievedby involving as few investigators as possible, who should be selected from amongst senior staff. It goes
without saying that during the course of investigations information should not be disclosed or publicized.
On the issue of information collated by the financial intelligence units (FIUs), it was pointed out thatthe reports on suspicious transactions may be indispensable in corruption investigations. It was noted that
there is a need for strengthened inter-agency co-operation, as well as for a proper analysis of information
provided by the FIUs. In Palestine and Japan, information coming from FIUs is regularly checked in order todetect corruption related offences. For example, in Japan the special investigative departments establishedin Tokyo, Nagoya and Osaka District Public Prosecutors Offices have designated units which analyse thereports provided by the FIUs.
However, attention needs to be paid to the operations of bank staff that are not necessarily mindful of theneed to detect suspicious transactions and to identify customers. Therefore, FIUs should play a significant
role in the training of bank officers on due diligence. To that end, guidelines on detecting and reporting
suspicious transactions should be produced by the FIUs and regularly updated. There needs to be a suitable
and swift communication channel between the banks and the FIUs, as well as interaction between the FIUs
and investigative authorities. With respect to the information collected by the FIUs, it could be beneficial toapply a risk-based approach in analysing these data. For those entities that choose not to comply with antimoney laundering provisions, administrative and/or monetary sanctions should be imposed.
Summary of recommendations:
1.

Bank secrecy must not be used to conceal the identity of customers who are suspected to havecommitted an offence of corruption;

2.

With respect to disclosure of officials’ assets and other wealth, it was proposed:(a)	to empower the institutions tasked with collecting declarations of income and property andto provide adequate human resources and technical capacities;(b) to scrutinize these data in cases of suspicions of corruption;(c)	to conduct random checks of the accuracy of information provided by high ranking officials;
and(d) to conduct risk-based checks of declarations of income and property;

3.

At the early stages of the investigation, the number of officers should be limited and there should
be a strict confidentiality policy. Information leaks need to be resolved immediately with appropriate
measures;

4.

The reports on suspicious transactions provided by the FIUs should be carefully analysed so as togather clues of corruption and/or collect evidence. It would be beneficial to set up departments orunits within investigative authorities which would be tasked with regular checks of the information
provided by the FIUs. A risk-based approach is recommended.

D. Seizure, Freezing and Confiscation
Having in mind that corruption offences are inherently profit-driven, there was consensus across thetable that it is vital to identify the proceeds of corruption. That is where measures such as seizure, freezing
and confiscation come into play. However, it is contested whether investigative authorities and prosecution
services pay significant attention to detecting proceeds of crime. It is agreed that financial investigations
require advanced skills in, for example, forensic accounting, and that due to electronic money transfers it ispainstakingly difficult to follow the money trail.
The Group discussed both the possibility of criminal confiscation as well as the avenue of civil forfeiture.
It was concluded that both procedures present different challenges. The traditional rules of evidence
imply that, in criminal proceedings, the prosecution bears the onus of proof and the standard is beyond a202

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reasonable doubt. The rules of evidence vary if the procedure is that of civil forfeiture.
In most countries, confiscation is allowed only following a conviction in a court of law (Sri Lanka,
Palestine, Japan and Montenegro). As such, it is considered a part of the sentencing procedure. The onusof proof lies with the prosecution and the standard is beyond a reasonable doubt. In Sri Lanka and Nepal
the burden of proof is shifted to the offender, but only with regard to the property suspected to have beenacquired illegally.
However, it was indicated that in Thailand and Papua New Guinea civil forfeiture is introduced, and that
it is being used to forfeit to the state the property suspected to originate from a criminal offence. In such
instances, the standard of proof is on the balance of probabilities which basically means that the state must
make it probable that the property comes from an illegal source and it is up to the defendant to rebut theseassumptions by means of documentary evidence.
Summary of recommendations:1.

The competent authorities in respective countries should be empowered by law to seize, freeze andconfiscate illegal proceeds;

2.

Introduction of civil forfeiture should be considered as a way forward for those jurisdictions whichstill rely on criminal confiscation;

3.

Training programmes for investigators and prosecutors should be conducted, so as to promote awider use of financial investigations and change their mindsets, generally inclined to conducting
traditional investigations;

4.

Forensic accounting needs to be utilized as a method of following the money trail;5.

It is worth considering shifting the burden of proof from the prosecution to the offender, in respect ofthe property which is suspected to originate from illegal sources;

6.

Finally, inter-agency co-operation should be strengthened.

E. International Co-operation
Bearing in mind the transnational nature of corruption, all members of the Group agreed that international
co-operation is of paramount importance. In most countries, the types of assistance provided under Article 46of the UNCAC are already in place. Direct communication among law-enforcement agencies and INTERPOL
in exchanging information and requesting assistance is often utilized. However, it was pointed out by several
participants that, in order to secure admissible evidence, authorities need to rely on formal avenues ofproviding assistance through mutual legal assistance. It was emphasized that the procedure is lengthy andcomplex; and that in some instances informal communication might take place before the formal procedure isinitiated. This approach is recommended so as to facilitate the preparation of the request and prevent delays inrequesting mutual legal assistance; it is all the more necessary in those cases where the requested state must
pay high attention to the request or act in an urgent manner.
The Group noted that preparation of a formal request for mutual legal assistance can be rather complicated,particularly as regards the format of the request and incorporating documents needed to substantiate therequest. Moreover, central authorities responsible for mutual legal assistance need to be easily accessible.
Specific issues relating to the provision of mutual legal assistance were discussed at length. The summaryof recommendations is as follows:1.

Ratification and implementation of the UNCAC should be ardently promoted, as the Convention
provides for a broad platform for international co-operation in combating corruption. Additionally,national legislation should allow provision of mutual legal assistance and extradition;

2.

Apart from international co-operation through mutual legal assistance and extradition provided in the
UNCAC and respective national legislation, fostering direct communication between internationalcounterparts should be considered through, for example, establishing a network of anticorruption
practitioners;

3.

The UNCAC should be ratified so as to prevent the situation in which the requirement of dual criminality
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4.

The use of the writer tool designed by the UNODC should be encouraged as it facilitates the preparationof the formal request for mutual legal assistance;

5.

Freezing, as an interim measure taken to secure future confiscation, needs to be facilitated by meansof swift international co-operation. Asset recovery, as provided by the UNCAC, needs to be enforced
so as to enable repatriation of assets;

6.

Communication and co-operation through INTERPOL and national law-enforcement agencies should
be enhanced, while at the same time mutual trust needs to be built so as to provide for more fruitful
co-operation.

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