thematic review on criminalisation of bribery in asia and the … management, adb/oecd...

ADB/OECD Anti-Corruption Initiative for Asia and the Pacific

Public Management, Governance and Participation Division Asian Development Bank

Anti-Corruption Division Organisation for Economic Co-operation and Development

www.oecd.org/corruption/asiapacific

17th Steering Group Meeting Hanoi, Vietnam, 22 October 2012

StG17-3

Thematic Review on Criminalisation of Bribery in Asia and the Pacific

Implementation of the Recommendations

Table of Contents

Bangladesh ..................................................................................................................................... 3

Bhutan .......................................................................................................................................... 10

Cook Islands ................................................................................................................................. 16

Hong Kong, China ......................................................................................................................... 22

Japan ............................................................................................................................................ 29

Kazakhstan ................................................................................................................................... 36

Korea ............................................................................................................................................ 39

Macao, China ................................................................................................................................ 45

Philippines .................................................................................................................................... 52

Samoa .......................................................................................................................................... 60

Singapore ..................................................................................................................................... 66

Sri Lanka ....................................................................................................................................... 69

Thailand ........................................................................................................................................ 81

Vietnam......................................................................................................................................... 88

Introduction In October 2010, the ADB/OECD Anti-Corruption Initiative for Asia and the Pacific completed its Thematic Review on the Criminalisation of Bribery in Asia and the Pacific. The Review examined the legal and institutional frameworks in Asia-Pacific countries for criminalising bribery against the standards in the United Nations Convention against Corruption (UNCAC) and the OECD Convention on Combating the Bribery of Foreign Public Officials in International Business Transactions (OECD Anti-Bribery Convention). In particular, the Review focused on the criminalisation of the active and passive bribery of domestic (i.e. national) public officials (Articles 15(a) and 15(b) of UNCAC respectively) and the active bribery of foreign public officials (Article 16(1) of UNCAC and Article 1 of the OECD Anti-Bribery Convention). The Review further considered related matters such as the sanctions and liability of legal persons for these offences; jurisdiction to prosecute; investigative tools available; and enforcement of these offences. The Review also made recommendations for improvement to each member of the Initiative. The Review‟s final report is available at: www.oecd.org/site/anti-corruptioninitiative/policyanalysis/ criminalisationofbriberyoffencesundertheuncacinasiaandthepacific.htm.

http://www.oecd.org/site/anti-corruptioninitiative/policyanalysis/%0bcriminalisationofbriberyoffencesundertheuncacinasiaandthepacific.htm

http://www.oecd.org/site/anti-corruptioninitiative/policyanalysis/%0bcriminalisationofbriberyoffencesundertheuncacinasiaandthepacific.htm


– 2 –

When the Review‟s final report was adopted, the Steering Group agreed that:

In line with previous Thematic Reviews, the Initiative will follow up developments in its members on the criminalisation of bribery after the finalisation of this report. […] Two years after this report‟s adoption, members will provide a follow-up report on the implementation of the report‟s recommendations that will be published. It is hoped that this process will encourage follow-up action to the review, including the enactment or amendment of relevant legislation, and the provision of technical assistance to members in need.

In light of this decision, the Steering Group devoted a session in its 17th Steering Group meeting in Hanoi, Vietnam to consider the implementation of the Review‟s recommendations. Prior to this meeting, each Steering Group member was asked to complete a reporting template with information on the steps that they have taken to implement the Review‟s recommendations that were addressed to that member. The reporting templates that have been filed by Steering Group members have been compiled into this document.


Bangladesh – 3 –

Bangladesh Recommendations Relating to the Elements of the Active and Passive Domestic Bribery Offences

Please describe the steps taken since October 2010 to implement the recommendations in the Thematic Review regarding your jurisdiction‟s offences on active and passive bribery of domestic public officials, which may include recommendations regarding the following:

(a) Express language covering the offering, promising or giving of a bribe to a domestic public official, and the soliciting or accepting of a bribe by a domestic public official;

(b) Express language covering the offering, promising or giving of a bribe through an intermediary, and the soliciting or accepting of a bribe through an intermediary;

(c) Express language covering cases where a briber conveys the bribe to a third party beneficiary with the knowledge or agreement of a domestic public official;

(d) Definition of a domestic public official; and

(e) Defence(s) or exception(s), e.g. a defence of small facilitation payments.

Please also provide any legislative amendments in English.

Steps are yet to be taken.

Bribery of Foreign Public Officials

Please describe the steps taken since October 2010 to implement the recommendations in the Thematic Review regarding your jurisdiction‟s offence of bribing a foreign public official (including an official of a public international organization), which may include:

(a) Steps taken to enact or amend an offence of bribing a foreign public official, if one was not in place at the time of the Review. Please provide the text of the offence in English; and

(b) Defences applicable to the offence of bribing a foreign public official, e.g. a defence of small facilitation payments.


Liability of Legal Persons for Bribery Offences

Please describe the steps taken since October 2010 to implement recommendations in the Thematic Review regarding your jurisdiction‟s scheme for imposing liability against legal persons for bribing domestic and foreign public officials.




Recommendations Relating to Sanctions and Jurisdiction

Please describe the steps taken since October 2010 to implement the recommendations in the Thematic Review addressed to your jurisdiction regarding (a) the sanctions (including fines, confiscation, imprisonment, and debarment from contracting with the government authorities) for bribery of domestic and foreign public officials; and (b) jurisdiction over these offences.


Recommendations Relating to Tools for Investigating Bribery

Please describe the steps taken since October 2010 to implement recommendations in the Thematic Review addressed to your jurisdiction regarding the available tools for investigating bribery.


Recommendations Relating to the Enforcement of Bribery Offences

Please describe the steps taken since October 2010 to implement the recommendations in the Thematic Review addressed to your jurisdiction regarding the enforcement of bribery offences.

Anti- corruption Commission is maintaining statistics of bribery offences.



Enforcement Statistics

Please complete the following tables with statistics on the enforcement of relevant bribery offences under the UNCAC and the OECD Anti-Bribery Convention.

2010

Offence Investigations Prosecutions Convictions

Sanctions

Including: (i) fines; (ii) confiscation; (iii) imprisonment or other forms of

loss of liberty; (iv) debarment from government

contracting

Giving, offering or promising a bribe to a domestic public official committed by a natural person

- - -

Giving, offering or promising a bribe to a domestic public official committed by a legal person

- - -

Soliciting or accepting a bribe committed by a domestic public official

22 18 7

(i) fine was up to BDT 10000.00

(ii) no confiscation

(iii) Lower limit 1 year rigorous imprisonment -upper limit 7 years rigorous imprisonment

Giving, offering or promising a bribe to a foreign official (or an official of a public international organization) committed by a natural person

- - -

Giving, offering or promising a bribe to a foreign official (or an official of a public international organization) committed by a legal person

- - -



2011


Sanctions



contracting


- - -


- - -


22 18 7 Cases were under trial during this time period


- - -


- - -



2012


Sanctions



contracting


- - -


- - -


4 13 2

(i) In one case fine was up to BDT 50000.00 plus six month rigorous imprisonment

(ii) In one case fine was up to BDT 10000.00 plus 2 years rigorous imprisonment


- - -


- - -



Recommendations and Conclusions from UNCAC Implementation Reviews

If, since October 2010, your jurisdiction has undergone a review under the UNCAC (including as part of the pilot project) regarding the implementation of UNCAC Chapter III on Criminalization and Law Enforcement, then you are invited to append the conclusions and recommendations from the review(s) to this document. Appending this information is completely voluntary, but will help ensure that the information on your jurisdiction is up-to-date.

Challenges and recommendations

A number of concrete steps could be taken in order to facilitate the full implementation of Chapter Ill. In particular, it was recommended that Bangladesh:

Amend section 165 of the PC, dealing with passive bribery. to ensure that the term "any valuable thing" has the same scope of application as "undue advantage", pursuant to article 15 of the Convention;

Ensure that sections 161 and 165 of the PC, which refer to "any other person", cover "another entity" as mentioned in the Convention:

Extend the definition of "public servant" to include foreign public officials and officials of public international organizations;

Consider adopting measures to criminalize active trading in influence, as well as - active and passive bribery in the private sector;

Extend the list of predicate offences set forth in the MLPA to include all the offences established under the Convention;

Consider streamlining the process of income and asset declarations, whereby only one institution would be responsible for this task;

Consider expanding the scope of section 405 of the PC (Criminal breach of trust), to include "any property, private funds or securities or any other thing of value";

Expand the scope of sections 193, 200, 201 and 204 of the PC to criminalize the use of both corrupt means and coercive means, as well as remove from the offence set forth in Section 503 the requirement that there should be an "interest" for that offence to be committed;

Extend the reach of sections 228 and 353 of the PC to cover the use of physical force, threat or intimidation;

Establish the liability of legal persons for participation in all UNCAC-related offences and provide for sanctions beyond pecuniary sanctions;

Refrain from amending the ACC Act 2004 to the extent that this would undermine the investigation of corruption related offences because of immunities granted to its officials;

Consider measures to implement article 30(7)(b) of the Convention ("holding office in an enterprise owned in whole or in part by the State");

Seek to promote the reintegration into society of persons convicted of UNCAC-related offences;

Ensure that confiscation is possible with respect to equipment, instrumentalities used or destined for use to commit an offence;

Consider other appropriate measures to encourage persons involved in the commission of an UNCAC-related offence to provide substantial cooperation to the competent



authorities (i.e. the possibility of mitigating punishment);

Consider entering into agreements or arrangements with other States parties where necessary cooperation between their law enforcement authorities would be beneficial to protecting persons, pursuant to UNCAC articles 32 and 37(5);

In order to simplify the process, allow for bank secrecy to be lifted upon a Court or other order;

Ensure that proceeds of crime transformed into other property shall also be liable to freezing and confiscation measures, and that the same measures can be taken with regards to intermingled proceeds and income or other benefits derived from such proceeds;

Consider legislative measures to allow for the reversal of the burden of the proof in confiscation matters;

Consider establishing the additional grounds for jurisdiction mentioned in article 41 of the Convention;

Consider amending the ACC Act 2004 in order to safeguard the ACC's independence. In particular:

o Review the proposal whereby the ACC would need permission from the Government to take action against offences involving public officials;

o Review the proposal whereby the Secretary of the ACC would be appointed by the Government;

o Ensure that officials exercising functions within the ACC enjoy the necessary independence to perform their duties effectively and without undue pressures, and that such officials be provided with adequate training and sufficient resources; and

Consider adopting a law regulating conflict of interest.


Bhutan – 10 –

Bhutan Recommendations Relating to the Elements of the Active and Passive Domestic Bribery Offences








The Thematic Review on the Criminalization of Bribery in Asia and Pacific was used as a reference material in amending the Anti-Corruption Act of Bhutan 2006 (see chapter 4, chapter 6 and section 165 of Anti-Corruption Act (ACA) 2011). The main basis of the Act has been the UNCAC (The Anti-Corruption Act 2011 is available on our website- www.acc.org.bt).

The ACA 2011 has implemented many of the recommendations in the Thematic Review regarding active and passive bribery of public servant.

a) The offense of active and passive bribery is as the international standards; the active bribery covers “a person who promises, offers or gives an advantage” and passive bribery covers “a person who solicits or accepts an advantage”.

b) A person to be guilty whether or not the advantage promised, offered or given is by the person directly or through intermediaries. And a person to be guilty whether or not the advantage solicited or accepted is by the public servant directly or through intermediaries.

c) Language for third party beneficiary- “Is for the benefit of such public servant who performs, or fails to perform; or for another person or entity”.

d) Definition of domestic Public Official/ Servant- Public servant means a person who is a member, an officer, an employee of a public agency, whether appointed or elected, whether permanent or temporary, whether paid or unpaid and includes a person:

i) Who is a civil servant within the meaning of the Civil Service Act , as amended; or

ii) Receiving salary, allowances, benefits, or emoluments from public funds;

e) If the financial loss as a result of corruption to an individual/society is more than Nu. 36000 (one year‟s minimum wage) it will be referred for prosecution (section XIII of Prosecution Referral Guidelines). Rests are administrative in nature.

http://www.acc.org.bt/


Bhutan – 11 –





a) The amended ACA 2011 clarifies that it is also an offence in Bhutan to bribe officials of foreign governments and public international organizations in the conduct of international business. Active and Passive bribery of foreign public servant states it clear (Section 44 & 45 of ACA 2011); “A person who promises, offers or gives to a foreign public servant an advantage”, and “A foreign public servant who solicits or accepts an advantage in order that the foreign public servant acts or refrains from acting in the exercise of his or her official duties shall be guilty of an offence”.

b) If the financial loss as a result of corruption to an individual/society is more than Nu. 36000 (one year‟s minimum wage) it will be referred for prosecution (section XIII of Prosecution Referral Guidelines). Rests are administrative in nature.



Section 165 of ACA 2011 clarifies: 1) Where a legal person commits an offence under this Act, every a) Chairperson, Chief

Executive, Director or Officer of such legal person shall be deemed to have committed that offence; and b) Every partner of such legal person shall be deemed to have committed that offence.

2) A legal person shall be guilty of an offence, when persons with the highest level managerial authority of such legal person: a) Directly or indirectly, offers, promises or gives a bribe to another person; b) Directs or authorises a lower level person to offer, promise or give a bribe to another

person; or c) Knowingly fails to prevent a subordinate from bribing an official, including through a failure

to supervise him or her due to non implementation of internal controls, ethics and compliance programmes or measures.



Sanctions:


Bhutan – 12 –

a) Sanctions for bribery of domestic and foreign public officials- “An offence under this section shall be a misdemeanor (1-3 years) or value based sentencing, whichever is higher subject to a maximum of the felony of second degree (9-15 years) if the value or the amounts involved in the crime exceed the total amount of minimum wage at the time of the crime for a period of 35 years or more”.

b) Section 40 of ACA 2011 clarifies the debarment. Moreover, a debarment rule has been formulated but yet to adopt; the rule is in draft stage.

c) Confiscation of property is clarified in Section 131 (2) of ACA 2011. Moreover, the property which are subject to confiscation is intermingled with property acquired from legitimate source is liable for confiscation up-to assess value of intermingled proceeds.

Jurisdiction: All entity encompassing the private and public bodies (the whole of the kingdom of Bhutan) and also the extra-territorial.



a) The use of covert investigative techniques such as surveillance, video recording, listening and bugging devices and controlled deliveries are allowed according to Section 8 (Special Investigative technique) of ACA 2011 but only having detailed procedures on the use of special investigative technique. The detailed procedure/guideline to use the techniques is not developed yet.

b) Immunity from prosecuting a person who co-operates in a corruption investigation or prosecution is granted by Section 119 of ACA 2011 (Protection for assisting Commission).

c) Chapter 9 of ACA 2011 covers the aspects of International Co-operation but no specific legislations provision on mutual legal assistance have been developed or enacted.

d) Section 158 of ACA 2011 (Transfer of sentenced persons) allows extradition to or from Bhutan in the absence of treaty after entering into bilateral or multilateral agreement.



Bribery offences are relatively lesser than other corruption offences in Bhutan; the conviction and prosecution of bribery is low because of lesser bribery cases reported.


Bhutan – 13 –



2010


Sanctions



contracting


1 0 0


0 0 0


0 0 0


1 1 0


0 0 0


Bhutan – 14 –

2011


Sanctions



contracting


1 1 1

3 yrs imprisonment

Restitution – Nu. 0.665 million

Termination of service


0 0 0


1 1 1


1 1 2

3 defendents imprisoned between 2 yrs to 7 yrs along with order for restitution of Nu.2.795 million . Cash confiscation – Nu.0.137 million)

3 defendants convicted of 6 months imprisonment with order for restitution of Nu. 0.106 million.


0 0 0


Bhutan – 15 –

2012


Sanctions



contracting


1 1

2 under trial

1 under higher appeal


0 0 0


1 1

2 under trial

1 under higher appeal


0 0 0


0 0 0



The UNCAC Self Assessment Report of Bhutan is available on our website- www.acc.org.bt).

http://www.acc.org.bt/


Cook Islands – 16 –

Cook Islands Recommendations Relating to the Elements of the Active and Passive Domestic Bribery Offences








(a) Section 116 (2) of the Crimes Act 1969 states that, everyone is liable to imprisonment for a term of not exceeding three years who corruptly gives or offers or agrees to give any bribe to any person with intent to influence any official in respect of any act or omission by him in his official capacity. Promise and soliciting are not covered.

(b) Offer, promise or giving of a bribe through an intermediary, and the soliciting or accepting of a bribe through an intermediary is not covered under the Cook Islands law.

(c) Bribe to a third party beneficiary with the knowledge or agreement of a domestic public official is not covered under the Cook Islands law.

(d) An “Official” is defined under section 110 of the Crimes Act 1969, means any person in the service of Her Majesty in right of New Zealand in the Cook Islands (whether that service is honorary or not, and whether it is within or outside the Cook Islands), or any member or employee of any Island Council.

(e) No defence is provided under the Crimes Act.

Note: The Crimes Act 1969 is currently being reviewed and a proposal to include the above requirements which are not covered under the existing sections to be submitted to the Solicitor General of the Crown Law Office.







(a) There is no specific section in the Crimes Act relating to bribery offences against a foreign public official or public international organisation, but section 116 (1) applies to any bribe of any official outside of the Cook Islands.

(b) There is no defence provided.



Liability of legal persons for bribery offences are not captured under the Crimes Act 1969.

The Crimes Act is currently being reviewed and a proposal to include the above requirement will be submitted to the Solicitor General of the Crown Law Office.



There has been no review or steps undertaken since October 2010 regarding sanctions and jurisdiction over bribery offences.

The Crimes Act is currently being reviewed and a proposal to include the above requirement will be submitted to the Solicitor General of the Crown Law Office.





The Police is the primary agency to investigate bribery offences under the Crimes Act and are equipped with the necessary resources and tools for investigating bribery.



There was one investigation in 2011 which was a drug related investigation but the charge of bribery was withdrawn due to insufficient evidence.





2010


Sanctions



contracting


Nil Nil Nil Nil


Nil Nil Nil Nil


Nil Nil Nil Nil


Nil Nil Nil Nil


Nil Nil Nil Nil



2011


Sanctions



contracting


1 Nil Nil Nil


Nil Nil Nil Nil


Nil Nil Nil Nil


Nil Nil Nil Nil


Nil Nil Nil Nil



2012


Sanctions



contracting


Nil Nil Nil Nil


Nil Nil Nil Nil


Nil Nil Nil Nil


Nil Nil Nil Nil


Nil Nil Nil Nil




Hong Kong, China – 22 –

Hong Kong, China Recommendations Relating to the Elements of the Active and Passive Domestic Bribery Offences














For Hong Kong, China, the maximum fine of bribery offences applicable to legal persons is



identical to those applicable to natural persons. We will consider adjusting the maximum fine as and when necessary.







Since October 2010, Hong Kong China has bought into operation Mutual Legal Assistance in Criminal Matters Agreements with Finland (9.2.2012), India (11.6.2011), Israel (6.1.2011), South Africa (2.12.2011), and Sri Lanka (19.2.2011). We have continued to actively negotiate for new Agreements with other jurisdictions during the same period.





2010

Offence Investigations1 Prosecutions

3 Convictions

4

Sanctions6

Including: (i) fines; (ii) confiscation; (iii) imprisonment or other forms

of loss of liberty; (iv) debarment from government

contracting


764

2

19 3 custodial sentence: 2 suspended sentence: 1 forfeiture: 1


0 0 0


18 11

custodial sentence: 5 community service order: 3 fine: 2 restitution: 6 compensation: 1

575 44

5

custodial sentence: 25 suspended sentence: 3 community service order: 15 fine: 5 restitution: 2 compensation: 1


3

0 0 0


0 0 0



2011


3 Convictions

4

Sanctions6



contracting


697

2

3 16 custodial sentence: 4 suspended sentence: 11 fine: 1


0 0 0


11 6

custodial sentence: 4 suspended sentence: 1 community service order: 1 restitution: 3

565 37

5

custodial sentence: 25 suspended sentence: 1 community service order: 9 fine: 2 restitution: 7 compensation: 1 confiscation: 1


4

0 0 0


0 0 0



2012 (January to August)


3 Convictions

4

Sanctions6



contracting


5912

5 2 custodial sentence: 1 community service order: 1


0 0 0


1 5 custodial sentence: 4 community service order: 1 restitution: 1

225 27

5

custodial sentence: 6 suspended sentence: 4 community service order: 14 fine: 4 restitution: 1 compensation: 6


0

0 0 0


0 0 0

Note: 1. The investigation figures relate to pursuable corruption reports. 2. The investigation figures relate to offences of “giving, offering or promising a bribe to a domestic public official

committed by a natural/legal person” and “soliciting or accepting a bribe committed by a domestic public official”. 3. Prosecution figures relate to the year in which an individual was charged. This may differ from the year in which the

investigation commenced. Prosecution figures are person based. Hence, if a person was charged with multiple offences, it is counted once only. The figures also include inchoate offences.

4. Conviction figures are person-based and relate to the year in which the result was determined. It may differ from the year of prosecution.

5. In addition to investigating bribery offences, the Independent Commission Against Corruption (ICAC) is empowered under Section 10(2) of the ICAC Ordinance, Cap. 204, to investigate offences connected with or facilitated by a suspected offence under the Prevention of Bribery Ordinance Cap. 201. These figures relate to prosecutions/convictions in relation to other offences revealed during corruption investigations of public officials.

6. Multiple penalties may be imposed concurrently against the same offender, e.g. custodial sentence plus forfeiture.


Japan – 29 –

Japan Recommendations Relating to the Elements of the Active and Passive Domestic Bribery Offences








Penal provision for foreign bribery in the Unfair Competition Prevention Act (UCPA) was replaced from Article 21(2)(vi) to Article 21(2)(vii), enforced in December 1, 2011.


Japan – 30 –





The Ministry of Economy, Trade and Industry (METI) has revised the METI Guidelines to Prevent Bribery of Foreign Public Officials in September 2010 and stated that as long as the prerequisite, “to obtain or retain improper business advantage in the conduct of international business,” is fulfilled in specific individual cases, it can constitute the offence of bribery of foreign public officials under the Unfair Competition Prevention Law, regardless of whether it is small facilitation payment or not.

Then, with the guideline, the METI has improved understanding of the foreign bribery offence among people.

In addition, METI improved the website in order to increase visibility of information about bribery of foreign public officials.

Besides, Japan would like to reiterate that the UCPA provides a sufficient legal framework for implementing the OECD Anti-Bribery Convention since the UCPA and the Convention have similar objectives, and that offences in the Penal Code are not accorded higher priority than those outside.



Japan would like to stress that a legal person would be punished not only when the natural person who bribed a foreign official is sanctioned after judgment but also when the natural person is even on trial before judgment.


Japan – 31 –



Based on the Financial Instruments and Exchange Law, an internal control reporting system has been introduced to listed companies from FY 2008. Under this system, the assessment of managers concerned with the effectiveness of internal controls over financial reporting, as well as the auditing of the managers‟ assessment by certified public accountants, etc., are required in order to ensure the reliability of financial reporting. In 2010 the Financial Services Agency (FSA) reviewed standards and standards enforcement of internal control and the revised standards have been applied to the assessment and auditing of internal controls from the fiscal year following April 2011.



On May, 2011, the Minister of Justice issued consultation on the ways to establish substantive and procedural criminal laws, asking the Legislative Council to review investigations and court proceedings that excessively rely on examination and statements, with an aim of establishing a new criminal justice system suited to the times. In response, on June, 2011, the Legislative Council decided to establish the Special Subcommittee on a Criminal Justice System for a New Era.

The Special Subcommittee is currently examining and discussing new investigative tools such as expansion of the use of wire-tapping, grants of immunity and the other tools to collect the statement.

Based on the report compiled by a study group chaired by the Chairman of the National Public Safety Commission and comprising members selected from outside experts in February 2012, NPA formulated the "Program to Advance Investigation Methods and Interrogations" in March of the same year. According to this program, the NPA is also considering new investigative tools, including those mentioned in the recommendation.


Japan – 32 –



Japan continues the efforts to strengthen the framework for investigating foreign bribery cases.

Ministry of Justice (MOJ) held a conference in February 2012 and called upon all the Chief Prosecutors of district prosecutors‟ offices to manage the investigation of foreign bribery cases appropriately through effective cooperation with police and other relevant agencies. And in June 2012, directive was issued by the Director-General of the Criminal Affairs Bureau of MOJ to the Prosecutor-General, Superintending Prosecutors and Chief Prosecutors stating that prosecutors are strongly encouraged to closely cooperate with other relevant investigative agencies such as the National Police Agency (NPA), the National Tax Agency (NTA) and the Securities and Exchange Surveillance Commission (SESC).

The amendment was made to the regulations of the duties of each prosecutor responsible for economic and financial crimes to expressly include the detection, investigation and prosecution of foreign bribery cases within the scope of their duties in June 2012. MOJ informed it to NPA, NTA and SESC by an official notification in order to raise the awareness of the change and to ensure that these authorities can smoothly consult with the prosecutor.


Japan – 33 –



2010


Sanctions



contracting


N／A

６０persons


N／A

６０

persons

(ⅲ)６０

Persons


N／A ５３persons


N／A ０persons ０persons ０persons


N／A N／A N／A N／A


Japan – 34 –

2011


Sanctions



contracting


N／A

５３persons


N／A

４５persons

(ⅲ)４５persons


N／A

４７persons


N／A ０persons ０persons ０persons




Japan – 35 –

2012


Sanctions



contracting


N／A

N／A

N／A

N／A


N／A

N／A

N／A

N／A


N／A

N／A

N／A

N／A








Kazakhstan – 36 –

Kazakhstan Recommendations Relating to the Elements of the Active and Passive Domestic Bribery Offences








No step has been taken since October 2010. However, a working group has been set up in the General Prosecutors Office to draft recommendations on the new redaction of the Criminal Law and Criminal Procedure Law










Since introduction of this liability, no facts of bringing to criminal liability foreign public officials or officials of public international organizations have taken place in Kazakhstan.

2012


Sanctions



contracting


364 268 245




At the moment Kazakhstan is under review regarding the implementation of UNCAC by experts from Pakistan and Qatar.


Korea – 39 –

Korea Recommendations Relating to the Elements of the Active and Passive Domestic Bribery Offences








(c) A bribe that is transmitted directly to a third party

The Korean government is of the view that even without a separate and express provision, direct transmission of bribe to a third party is adequately covered by the Act on Combating Bribery of Foreign Public Officials in International Business Transactions (FBPA). Where a bribe is transmitted directly to a third party, it is interpreted to be covered by the current provision as long as there is an offer to give a bribe to a foreign public official. On the other hand, if the alleged bribe was given to a third party without any contact or communication with a foreign public official, there is no basis to characterize whatever was given to the third party as a “bribe.”

(d) Definition of a domestic public official

The Anti-Corruption and Civil Rights Commission (ACRC) announced a bill on the prohibition of illegal solicitations and the prevention of conflicts of interest of public officials on 22 August 2012. The new bill is aimed at addressing the areas that are not fully covered by the current laws including the Criminal Act, which requires the proof of relationship between bribery and the duties of a public official who has accepted a bribe, i.e. quid pro quo. The bill prohibits a “public official” from accepting, soliciting or promising a bribe, convenience or entertainment from any person regardless of relationship to his or her official duties or intention of the bribery. Under the bill, the term “public official” is defined as a person regarded as a public official according to the relevant laws including the State Public Officials Act and the Local Public Officials Act, and an employee of a public service organization or a public company. The ACRC plans to submit the bill to the National Assembly by the end of 2012.

(e) Defence about the payment or gift is offered as a social courtesy

Article 20 of the Criminal Act is a general defence that negates the culpability of the act even if the act constitutes an offence. Whether a payment or a gift can be characterized as “bribe” is not a question to be reviewed by applying Article 20, and there has been no case where a court found that a payment or a gift constitutes a “bribe” yet allowed it as a social custom. The law enforcement authorities would examine whether a payment or a gift is in fact “bribe” without regard


Korea – 40 –

to Article 20 as a viable defence.










Korea – 41 –






Korea – 42 –



2010


Sanctions



contracting







Korea – 43 –

2011


Sanctions



contracting







Korea – 44 –

2012


Sanctions



contracting









Philippines – 45 –

Macao, China Recommendations Relating to the Elements of the Active and Passive Domestic Bribery Offences








The recommendations to Macao, China were:

Macao, China„s bribery offences in the Penal Code already meet many requirements found in international standards, e.g. express coverage of bribery through intermediaries and bribes provided to third party beneficiaries, and a broad definition of public officials. Nevertheless, Macao, China could consider addressing the following issues:

(a) Bribery in order that an official uses his/her position outside his/her authorised competence;

(b) Clarification that the definition of a bribe is not affected by factors such as the value of the bribe, the perceptions of local custom towards bribery, the tolerance by local authorities, or the alleged necessity of the bribe;

(c) The appropriateness of the various defences to bribery, including (i) bribery committed so that a close relative avoids criminal sanctions, and (ii) the defences of effective regret.

All the concerned recommendations would require legislative amendments. Since October 2010 no such amendments have been made to the pertaining Law.

However, a working group has been set up in the Commission Against Corruption, to draft recommendations on amendments to the existing Law.








To bring its criminal into line with international standards, Macao, China should enact an offence to criminalise the bribery of officials of foreign governments and public international organisations in the conduct of international business. In particular, Macao, China should criminalise the bribery of public officials of P.R. China and Hong Kong, China.

The concerned recommendation requires a legislative enactment. Since October 2010 the drafting of the pertaining Bill has been made and it has entered the legislative procedure stage.




Macao, China cannot impose liability against legal persons for bribery. There is no legal or constitutional impediment to doing so, and corporate liability is available for offences such as money laundering. Macao, China could therefore consider establishing corporate liability for all bribery offences, and ensure that legal persons are subject to effective, proportionate and dissuasive sanctions for bribery.

The concerned recommendation would require legislative amendments. Since October 2010 no such amendments have been made to the pertaining Law.

However, a working group has been set up in the Commission Against Corruption, to study the possibility and need for a amendment to the existing Law.






As with other jurisdictions, Macao, China has jurisdiction to prosecute bribery that takes place wholly or partly in its territory. However, Macao, China may wish to address the following issues:

(a) Clarification of the meaning of “victim” under the passive nationality jurisdiction principle; and

(b) Active nationality jurisdiction to prosecute natural and legal persons for bribery.

The maximum available punishment for the Penal Code bribery offences are largely in line with international standards. The only exception is active bribery to perform licit acts, which is punishable by imprisonment of up to 6 months or a maximum fine of MOP 600 000 (approx. EUR 60 000 or USD 77 000). While this crime is arguably less serious than other bribery offences, it can nonetheless apply to situations of significant gravity, e.g. paying high-level officials a bribe of millions of dollars in order that a construction permit or investment authorisation is issued for a multi-million dollar project.

Macao, China could consider addressing the following issues:

(a) The sufficiency of the maximum sanctions available for active bribery to perform licit acts;

(b) The availability of administrative sanctions for bribery, e.g. debarment from public procurement, disqualification from public subsidies or financial support;

(c) Whether confiscation is sufficiently used in cases of active and passive bribery; and

(d) Statistics on the severity of sanctions for bribery

Most the concerned recommendations would require legislative amendments. Since October 2010 no such amendments have been made to the pertaining Law.

However, a working group has been set up in the Commission Against Corruption, to draft recommendations on amendments to the existing Law.

Regarding statistics, a recent amendment to the Organic Law of the Commission Against Corruption (Law no. 10/2000 as amended by Law no. 4/2012), stipulates that “11(7) A copy of the accusation, of the indictment and of the court final decision shall be sent to the Commission Against Corruption, for those crimes that fall within its scope of activity.” This will enable the compilation of such statistics from now on.






The basic tools for investigating bribery are available in Macao, China, as are special investigative techniques such as interception of communications and undercover operations. To enhance the ability of law enforcement to investigate bribery, Macao, China could consider addressing the following matters in the context of bribery investigations:

(a) A simplified procedure for obtaining documents from financial institutions, e.g. through a summons or production order;

(b) A simplified and prompt procedure to freeze bank and other financial accounts;

(c) Authorising a person to give or offer a bribe (i.e. a controlled a delivery) in the course of an investigation;

(d) Ability to seek the surrender of fugitive offenders (extradition) and MLA for an offence of active bribery to perform licit acts;

(e) Availability of plea bargaining in bribery cases; and

(f) Providing more detailed guidance on when immunity from prosecution may be granted to an offender who co-operates with the authorities in an investigation or prosecution.

Most the concerned recommendations would require legislative amendments. Since October 2010 no such amendments have been made to the pertaining Law.

The Commission Against Corruption conducts regular training to its investigative staff on all legal aspects of the criminal procedure, including non-punishment cases.



One of the concerned recommendations would require legislative amendments. Since October 2010 no such amendments have been made to the pertaining Law.

The recent amendment of the Commission‟s Organic Law will be followed by the enactment of a new Organization and Operations Administrative Regulation, providing for a stronger structure and increased investigative staff.





2010


Sanctions



contracting


7 1



4


1




2011


Sanctions



contracting


12


2


11





2012


Sanctions



contracting


4



4







Philippines Recommendations Relating to the Elements of the Active and Passive Domestic Bribery Offences








In page 428 of the Thematic Review final report, the following recommendations were made: (a) Streamlining the bribery offences in different statutes so as to eliminate inconsistent

definitions and overlapping applications;

A Criminal Code Committee (CCC) was created on April 20, 2011 by virtue of Department of Justice (DOJ) Circular No. 019, series of 2011, to “undertake the review of the Revised Penal Code, as amended, and all existing criminal statutes.” It is the objective of the CCC to consolidate and harmonize penal laws, some of which are Act No. 3815, Republic Act (R.A.) No. 9485, R.A. No. 3019, R.A. No 6713, Executive Order No. 292 and Presidential Decree No. 46, all of which have provision/s on “active” and/or “passive” bribery. (http://www.doj.gov.ph/criminal-code-committee.html)

(b) For the active bribery offence, the coverage of offering to bribe through the offence of attempt

and the requirement of proving an acceptance;

(c) For the passive bribery offence, the requirement of proving an agreement between the briber and the official;

(d) For bribery through an intermediary, express coverage in all RPC bribery offences; and the

effect of requiring proof of an agreement on such cases; and the coverage of bribery through intermediaries who are unwitting tools and do not play an active role;

(e) Express coverage of bribery in which an advantage is provided to a third part beneficiary;

(f) Express coverage of bribery of officials who perform legislative or judicial functions, persons

who perform a public function for a public agency or public enterprise, and persons who provide a public service;

At present, items (b) to (f) are already covered in various legislative measures enacted prior to October 2010 hence there is no need for further implementation. However, in



certain instances the coverage is not explicit or express; this may be addressed by the CCC.

(g) Whether a bribe is affected by the value of the advantage, its results, perceptions of local

custom, the tolerance of such payments by local authorities, or the alleged necessity of the payment in order to obtain or retain business or other improper advantage; as well as the defence of small facilitation payments.

The abovementioned circumstances do not tend to mitigate, aggravate or justify bribery. No steps have been taken to incorporate any of these circumstances in existing penal laws.





In page 429 of the Thematic Review final report, the following recommendation was made: To bring its criminal (laws) into line with international standards, the Philippines should enact an offence to criminalise the bribery of officials of foreign governments and public international organisations in the conduct of international business.

The Philippines has not taken any step since October 2010 to implement the above-mentioned recommendations. (pp. 09-11 UNCAC Philippine Master Self-Assessment as of February 2012)

Technical Assistance Needs: The following forms of assistance, if available, may enable the Philippines to criminalise bribery of officials of foreign governments and public international organisations in the conduct of international business, viz: (a) summary of best practices from compliant countries; (b) model law; (c) legislative advice and drafting; and (d) lessons learned from challenges and how to meet them.



In page 429 of the Thematic Review final report, the following recommendation was made: The Philippines should consider establishing criminal liability against legal persons for bribery as required under international standards.

A Criminal Code Committee (CCC) was created on April 20, 2011 by virtue of Department of Justice (DOJ) Circular No. 019, series of 2011, to “undertake the review of the Revised Penal Code, as amended, and all existing criminal statutes.” According to a recent update, one of the key features of the New Criminal Code, particularly Book I, is the



inclusion of criminal liability of corporations. (Powerpoint Presentation of CCC Updates from DOJ)



In pages 429 and 430 of the Thematic Review final report, the following recommendations were made: With the exception of a mere offer/solicitation of a bribe, the maximum punishment for the RPC bribery offences are generally effective, proportionate and dissuasive under international standards. Further issues that could be addressed include: (a) Whether sanctions for a mere offer/solicitation of a bribe is effective, proportionate and

dissuasive;

A Criminal Code Committee (CCC) was created on April 20, 2011 by virtue of Department of Justice (DOJ) Circular No. 019, series of 2011, to “undertake the review of the Revised Penal Code, as amended, and all existing criminal statutes.” It is the objective of the CCC to consolidate and harmonize penal laws, which include, among others, Act No. 3815, Republic Act (R.A.) No. 9485, R.A. No. 3019, R.A. No 6713, Executive Order No. 292 and Presidential Decree No. 46, all of which have provision/s on “active” and/or “passive” bribery.

Aside from the consolidation and harmonization of penal laws, the CCC will also undertake the review of the corresponding sanctions to ensure that the same are effective, proportionate and dissuasive. (http://www.doj.gov.ph/criminal-code-committee.html)

(b) Confiscation of the proceeds of bribery;

(c) Imposing a fine equivalent in value when confiscation is not possible;

(d) Additional administrative sanctions for bribery, such as disbarment from public procurement;

At present, items (b) to (d) are already covered in various legislative measures enacted prior to October 2010 hence there is no need for further implementation. (http://www.lawphil.net/statutes/acts/act_3815_1930.html, among others)

(e) Maintaining statistics on the actual sanctions imposed in bribery cases; and

The Philippines has not taken any step since October 2010 to implement the above-mentioned recommendation.

(f) Whether sanctions imposed in practice are effective, proportionate and dissuasive.

See answer to item (a)

As to the matter of jurisdiction, existing penal laws have a territorial and extra-territorial application. (http://www.lawphil.net/statutes/acts/act_3815_1930.html, among others)





In page 430 of the Thematic Review final report, the following recommendations were made: The basic tools for investigating bribery are available in the Philippines, as are some covert investigative techniques. To enhance the ability of law enforcement to investigate bribery, the following matters could be addressed in the context of bribery investigations: (a) Simplified procedure for obtaining information and records from banks and financial

institutions, including before a case is filed in court;

Republic Act No. 10167 was enacted on June 18, 2012 to further strengthen the anti-money laundering law. This amendment includes a provision for a simpler procedure for inquiring into bank deposits. (http://www.amlc.gov.ph)

(b) Ability of all law enforcement agencies involved in bribery investigations to obtain information

from the tax authorities, including but not limited to tax returns;

Section 71 of the Tax Code already allows the inspection of income tax returns (ITRs) "upon the order of the President of Philippines, under rules and regulations to be presribed by the Secretary of Finance, upon recommendation of the Commissioner."

Further, Executive Order No. 251 (November 25, 2003) requires the Bureau of Internal Revenue to furnish the Office of the Ombudsman with ITRs filed

(c) Availability of additional covert investigative techniques in bribery investigations, e.g.

wiretapping, listening and bugging devices;

Law enforcement authorities usually resort to entrapment operations. Wiretapping and the use of listening and bugging devices are violative of R.A. No. 4200 (Anti-Wiretapping Law). The use of the same may be allowed through a court order, but not in cases involving the investigation of bribery offences. (http://www.lawphil.net/statutes/repacts/ra1965/ra_4200_1965.html)

(d) Freezing of bank and other accounts in bribery investigations;

Republic Act No. 10167 was enacted on June 18, 2012 to further strengthen the anti-money laundering law. This amendment includes a provision for freezing of monetary instrument or property. (http://www.amlc.gov.ph)

(e) The ability to seek extradition and MLA in bribery cases, including from countries with which

the Philippines do not have treaty relations;

The Philippines provides mutual legal assistance in criminal matters to other states using as bases, among others, the provisions of existing bilateral and regional Mutual Legal Assistance Treaties (MLATs) as well as the “mini-MLATs” contained in the various UN Conventions in which the Philippines is a state party. Mutual legal assistance may also be provided pursuant to Republic Act No. 9160 (Anti-Money Laundering Act of 2001), as



amended by R.A. No. 9194.

For non-treaty based requests for legal assistance, assistance may be granted on the basis of reciprocity provided that the request for assistance does not involve coercive action. Moreover, the request must contain a Reciprocity Undertaking or an assurance from the requesting state that a similar request for assistance by the Philippines will likewise be granted. (pp. 301-302 UNCAC Philippine Master Self-Assessment as of February 2012)

(f) Providing immunity to officials who take bribes in return for their assistance in an investigation

or prosecution;

Under existing laws, a person who participated in the commission of a crime may be discharged by the Department of Justice or Sandiganbayan to become a State witness, provided certain guidelines are fulfilled. Hence, the above recommendation need not be implemented further. (http://www.doj.gov.ph/witness-protection,-security-and-benefit-program.html)

(g) Availability of guidelines on plea bargaining.

There is a pending bill in the Philippine Senate, i.e. Senate Bill No. 3148, filed on March 12, 2012 that seeks to provide rules on plea bargaining agreement in criminal cases, provide penalties for violation thereof, and for other purposes. It is currently on second reading. If passed, it shall be called the Plea Bargaining Act of 2012. (http://www.senate.gov.ph/lis/bill_res.aspx?congress=15&q=SBN-3148)



In page 430 of the Thematic Review final report, the following recommendation was made: The available statistics show that the Ombudsman receives a large number of complaints annually, many of which result in prosecutions. To properly assess the effectiveness of the enforcement of bribery offences, the Philippines could consider maintaining more detailed statistics on the investigation, prosecution, conviction and sanctions for bribery offences, including cases handled outside the Ombudsman‟s office.





2010


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2011


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2012


Sanctions



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A self-assessment checklist was completed and submitted by the Philippine experts in February 2012. Based on this checklist, a review was conducted by governmental experts from Bangladesh and Egypt, and a draft country report was returned in June 2012. Subsequently, a country visit was conducted in Manila in August 2012. At present, the final country report is being prepared.


Samoa – 60 –

Samoa Recommendations Relating to the Elements of the Active and Passive Domestic Bribery Offences








The revised Crimes Ordinance Bill 2011 which shall repeal the Crimes Ordinance 1961 will be tabled in Parliament for its third and final reading by the end of this year, 2012.

Part XI of the proposed Bill stipulates provisions for bribe and corruption against the administration of justice with specific reference to judicial corruption; bribery of judicial officer; corruption and bribery of Minister; member of Parliament and law enforcement officer.

Domestic public official means any (a) member or officer of the executive, judiciary, or legislature (b) any person employed by Government or any member or employee of any local authority, agency or public body; and (c) a person, while acting in the service of or purporting to act in the service of Samoan government; public agency; public enterprise or public organisation.





Response:

The revised Crime Ordinance Bill 2011 which shall repeal the Crimes Ordinance 1961 will be tabled in Parliament for its third and final reading by the end of this year, 2012.

Sections 143 to 146 of the proposed Bill incorporate stipulated provisions that shall govern bribery of foreign public official as an offence.


Samoa – 61 –

Foreign public official has been defined to include: (a) a member or officer of the executive, judiciary, or legislature of a foreign country; (b) a person who is employed by a foreign government, foreign public agency, foreign public enterprise, or public international organisation; and (c) a person, while acting in the service of or purporting to act in the service of a foreign government, foreign public agency, foreign public enterprise, or public international organisation.

The proposed Bill further stipulates specific mention in relation to other form of foreign bodies or entities, such as foreign public agency; foreign public enterprise and public international organisation. Section 144 states that a person is liable for a term of not exceeding 7 years who corruptly gives or offers or agrees to give a bribe to a person with intent to influence a foreign public official in respect of any act or omission by that official in his or her official capacity, whether or not the act or omission is within the scope of the official‟s authority, in order to: (a) obtain or retain business; or (b) obtain any improper advantage in the conduct of business. Nevertheless, this particular section does not apply if: (a) the act that is alleged to constitute the offence was committed for the sole or primary purpose of ensuring or expediting the performance by a foreign public official of a routine government action; and (b) the value of the benefit is small.

Section 145 covers bribery outside Samoa of a foreign official and subject to a corrupt act for use of official information. A person commits an offence punishable for a term of not exceeding 7 years who does outside Samoa any act that would, if done in Samoa, constitute an offence against Section 144 as detailed above. This Section applies to a person who is; (a) a citizen of Samoa (b) ordinary resident in Samoa; (c) a body corporate incorporated in Samoa; or (d) a corporation sole incorporated in Samoa.



Please refer above response.


Samoa – 62 –



Refer above response.

The proposed Crimes Bill 2011 stipulates exceptions for acts lawful in country of foreign public official. Sections (144) and (145) mentioned above do not apply if the act that is alleged to constitute an offence under either of those sections:

a) Was done outside Samoa; and

b) Was not at the time of its commission, an offence under the laws of the foreign country in which the principal office of the person, organisation or other body for whom the foreign public official is employed or otherwise provides services is situated.

If the person is charged with an offence under sections (144) and (145), it is presumed, unless the person charged puts the matter at issue, that the act was an offence under the laws of the foreign country referred to in (b) above.



A variety of sources of information can trigger a corruption investigation.

In the case of Samoa, audit findings and reports by the Chief Auditor of Government; information from the Samoa Financial Intelligence Unit (SFIU) and Transnational Crime Unit (TCU) are effective mechanism already in place. Articles in mass media have helped trigger investigations too. Also, valuable information can be provided by banks and other non bank financial institutions, especially in the form of information sent to SFIU.

Mutual legal requests which can be facilitated under the Mutual Legal Assistance Act 2007 provides a proper legal framework for Samoa to exchange or share information in relation to an investigation or prosecution with foreign jurisdictions. In addition Samoa FIU has signed several Memorandum of Understanding with key domestic law enforcement agencies including counterparts in foreign jurisdictions.



The revised Crimes Bill 2011 incorporates specific provisions in relation to enforcement bribery offences. The Bill is expected to be endorsed by Parliament by the end of the current year.


Samoa – 63 –



2010


Sanctions



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Samoa – 64 –

2011


Sanctions



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Samoa – 65 –

2012


Sanctions



contracting









Singapore – 66 –

Singapore Recommendations Relating to the Elements of the Active and Passive Domestic Bribery Offences
























2010

Investigations (Number of

Investigations)

Prosecutions (Number of

persons charged in

court)

Convictions (Number of

persons convicted in

court)

Sanctions



contracting

206 194 181 Data not available



2011


Investigations)


persons charged in

court)



court)

Sanctions



contracting


2012


Investigations)


persons charged in

court)



court)

Sanctions



contracting





Sri Lanka – 69 –

Sri Lanka Recommendations Relating to the Elements of the Active and Passive Domestic Bribery Offences








(a) Offering , Promising or giving of a bribe to a domestic Public official is describe in the section 14(a), 16(a), 17(a), 19(a), 20(a), 22 (a) & (b) of the Bribery Act. Soliciting or accepting of a Bribe by a domestic public official is define in sections 14(b), 16(b), 17(b), 19(b) & (c), 22 (c)&(d) of the Bribery Act.

(b) It was specifically define in section 89 (a) & (b) of the Bribery Act

(c) It was specifically define in section 89 (a) & (b) of the Bribery Act

(d) Definition of a Domestic Public Official is stated in section 90 of the Bribery Act as “ Public Servant”

(e) Exceptions were mentioned in section 14,15, 19 & 21 of the Bribery act.

Refer :- www.ciaboc.gov.lk





(a) Not considered up to date.

(b) Not applicable.





Not under consideration

In Sri Lanka Liability of Legal Persons will be limited to civil & administrative areas ( Common law principles)



No steps has been taken since October 2010.



In addition to the units already established with regard to the Bribery, Corruption and the acquisition of wealth; steps has been taken to establish a new investigation unit.







2010

Offence Investigations Prosecutions Convictions Sanctions

Fines Confiscation Imprisonment or other forms of loss of liberty

Debarment from Government Contracting

Giving, offering or Promising a bribe to a domestic public official committed by a natural person

641 Records not available.

Vide section 29(a) of the Bribery Act No.11 of 1954 the convicted person shall become incapable for a period of seven years from the date of such conviction or finding of being registered as an elector or of voting at any election under the Ceylon (Parliamentary Elections) Order in Council, 1946, or for a period of five years under the Local Authorities Elections Ordinance, or of being elected or appointed as a member of Parliament or as a member of a local authority, and, if at that date he has been elected or appointed as a Member of Parliament or member of local authority, his election or appointment shall be vacated from that date.

Vide section 29(b) of the Bribery Act No.11 of 1954 the convicted person shall be disqualified for all time from being employed a a s Public servant and from being elected or appointed to a scheduled institution or to the governing body of a scheduled institution.



2010





67 18 Records not available.



Giving, offering or Promising a bribe to a domestic public official committed by a legal person

-



2010





-


-



2011





1217 Records not available.





2011









-



2011





-


-



2012





1042 1 0 Records not available.





2012









- -



2012





- -


- -


Thailand – 81 –

Thailand Recommendations Relating to the Elements of the Active and Passive Domestic Bribery Offences








Recommendation to Thailand: (a) Express language covering additional modes of committing bribery, such as third party beneficiaries (for active bribery), and bribery through intermediaries;

(No step taken)

(b) A definition of ―public official that expressly includes all persons who provide a public service, or who exercise a public function, including for a public agency, or for a state-controlled enterprise in which the state owns less than 50% of the shares;

(No step taken)

(c) A direct offence of active bribery of officials of state-owned enterprises;

(No step taken)

(d) Bribery in order that an official acts or omits to act in relation to the performance of official duties, including any use of the public official‟s position or office, and acts or omissions outside the official‟s competence. This encompasses bribery (including making facilitation payments) in order that an official performs his/her duty or exercises his/her discretion in favour of the briber.

(No step taken)

(e) Whether a bribe is affected by the value of the advantage, its results, perceptions of local custom, the tolerance of such payments by local authorities, or the alleged necessity of the payment in order to obtain or retain business or other improper advantage.

(No step taken)

Legislative Amendment

The New Organic Act on Counter Corruption was promulgated in April 2011. The section 123 concerns an illegitimate benefit acquired by official who acts or omits to act not in relation to the performance of his duties.

The new Organic Act on Counter Corruption (No. 2) B.E. 2554 (2011) Section 123. Any state official who performs or refrains from performing any act in the circumstance likely to cause others to believe that he or


Thailand – 82 –

she holds a particular position or has a particular duty despite not holding such position or not having such duty, for acquiring illegitimate benefits for himself or herself or for others shall be liable to imprisonment for a

term of one to ten years or to a fine of two thousand to twenty thousand Baht or to both.





Recommendation to Thailand: To bring its criminal bribery offences into line with international standards, Thailand should enact an offence to criminalise the bribery of officials of foreign governments and public international organisations in the conduct of international business.

Thailand‟s effort on amending and enacting an offence of foreign bribery has been started since 2008. The long process of on the amendment of Foreign Bribery law in Thailand and the change of Governments does slow down the process. However, Ministry of Justice proposed to the Cabinet the new draft amendment Penal Code in April 2012 to include the definition of “foreign public official” and “International organization

official”, and to include the offences of foreign bribery.



Recommendation to Thailand: The Thai legal system recognizes criminal liability of legal persons, but it is not entirely clear whether such liability can be imposed for bribery. Even if such liability is possible, it is unclear when liability would arise, e.g. whether and how a crime committed by a natural person is attributed to a legal person. Procedural issues create further uncertainty. To ensure compliance with international standards, Thailand could consider amending its legislation to expressly address these issues, and to ensure its system for imposing corporate liability takes one of two approaches:

(a) The level of authority of the person whose conduct triggers the liability of the legal person is flexible and reflects the wide variety of decision-making systems in legal persons.

(b) Alternatively, liability is triggered when a person with the highest level managerial authority (i) offers, promises or gives a bribe to an official; (ii) directs or authorises a lower level person to offer, promise or give a bribe to an official; or (iii) fails to prevent a lower level person from bribing an official, including through a failure to supervise him/her through a failure to implement adequate internal controls, ethics and compliance programmes or measures.

(No step taken)


Thailand – 83 –



Recommendation to Thailand on Jurisdiction for Prosecuting Bribery: Thailand has jurisdiction to prosecute bribery that takes place wholly or partly in its territory, or when the consequences of an offence are felt there. To strengthen its jurisdictional base for prosecuting bribery, Thailand could consider addressing the following issues:

(a) Nationality jurisdiction to prosecute bribery cases; and

(b) Extending extraterritorial jurisdiction in CC Section 9 to passive bribery of officials of SOEs.

(No step taken)

However, the new draft amendment Penal Code which Ministry of Justice proposed to the Cabinet in April 2012 provides in draft section 7 (1/2) that “any person commits a bribery as stipulated in section 143, 144, 149 and 150 outside Thailand shall be punished in Thailand”

Recommendation to Thailand on Sanctions for Bribery: Bribery is punishable in Thailand by death, imprisonment, confiscation and/or fines, though the maximum available fines are low. If corporate liability is available, then the maximum available fines are wholly inadequate. Furthermore, the adequacy of the sanctions imposed in practice is unclear, since the Thai authorities were unable to provide the necessary statistics. Thailand could therefore consider addressing the following issues:

(a) Increasing the maximum fines available;

(b) Confiscation of indirect proceeds of bribery under the Criminal Code;

(c) Availability of a fine in lieu of confiscation (i.e. value confiscation);

(d) Availability of administrative sanctions, such as blacklisting and debarment from seeking public procurement contracts; and

(e) Maintaining statistics on the actual sanctions (including confiscation) imposed in bribery cases.

(No step taken)



Recommendation to Thailand: Some basic tools for investigating bribery are available in Thailand. To enhance the ability of law enforcement to investigate bribery, the following matters could be addressed in the context of bribery investigations:

(a) Availability of additional special investigative techniques in bribery investigations, e.g. undercover operations, controlled deliveries, wiretapping, secret surveillance, and listening and bugging devices;

(b) Freezing of bank and other accounts; and

(c) Plea bargaining, and offering immunity or reduced sentences in return for an offender„s assistance in an investigation or prosecution.

The Organic Act on Counter Corruption (No. 2) B.E. 2554 (2011) encompasses comprehensive revisions and additions add more “enforcement teeth” to the NACC‟s anti-corruption mandate. A new mechanism has


Thailand – 84 –

been inserted to improve working operability. The tools for investigating bribery and corruption cases under this new act are as follows:

1. Access to information. The new Organic Act provides the NACC and its Inquiry Sub-Commissions with greater authority to access all types of important information for our inquiry purposes. In the case where the NACC found that some types of information are inaccessible, it may file a motion requesting an order from the court to access such information

2. Effective protection for witnesses of corruption. The new NACC Organic Act allows the NACC to provide special measures to protect a person who makes an allegation or a witness who provides information on corruption offences, illicit enrichment or other information deemed useful by the Commission.

3. „Non-prosecution or cooperative agreements‟. Moreover, the new NACC Organic Act also gives the Commission the discretion to enter into „non-prosecution or cooperative agreements‟ with an alleged culprit or a person who might have been involved in a corruption offence with state officials. In exchange, he or she will take on the role of a cooperative witness in identifying and providing incriminating evidence leading to the prosecution of the real mastermind behind the corruption offence.

The new Organic Act on Counter Corruption (No. 2) B.E. 2554 (2011)

Section 25/1. In the interest of countering corruption, the N.C.C. Commission may notify any agencies or financial institution to allow a member or member of an inquiry sub-committee to gain access to data relating to the alleged culprit or any person against whom there is enough evidence to show that he or she was involved in the alleged matter for the benefit of the Fact Inquiry or for the benefit of deliberations carried out by the N.C.C. Commission or inquiry subcommittee. Rules, procedures, and conditions for a request by a member or member of an inquiry sub-committee to access data held by an agency or financial institution under paragraph one shall be in accordance with the regulation prescribed by the N.C.C. Commission and shall be subject to the law, rule, or by law governing the protection of information of such agencies. With regard to data held by an agency or financial institution which cannot be accessed by a member or member of an inquiry sub-committee, the N.C.C. Commission shall file a petition in the court having competent jurisdiction for an order to allow the access.

Section 103/2. In the case where the N.C.C. Commission finds it appropriate in a case to provide protection measures for the person making the allegation, injured person, petitioner, alleger, person giving testimony or person providing a clue or trace pertaining to the corruption, unusual wealth or other information that is beneficial to proceedings under this Organic Act, the N.C.C. Commission shall notify the relevant agencies to provide protection measures for such person. Such person shall be deemed as a witness entitled to protection under the law on witness protection. In this event, the N.C.C. Commission shall also submit an opinion on whether to apply general measures or special measures for such person under such law.

In the case of a loss of life, body, health, reputation, property or other rights of a person under paragraph one, or the husband, wife, ascendant, descendant or other persons having a close relationship with such person due to an intentionally committed criminal offence as a consequence of proceedings or testimony or the provision of clues or information to the N.C.C. Commission, such person shall have the right to file an application to the responsible agency to request for compensation as necessary and appropriate under the law on witness protection.

Section 103/6. Where a person or alleged culprit involved in the commission of an offence by a state official that is an alleged culprit in another case gives testimony or provides a clue or information which constitutes an essential substance in the evidence relied upon in the decision on the prima facie case against such other state official, and the N.C.C. Commission finds it appropriate, such person may be protected as a witness and not be subject to legal proceedings. The aforesaid shall be in accordance with the rules, procedures and conditions prescribed by publication of the N.C.C. Commission.


Thailand – 85 –



Recommendation to Thailand: There is some anecdotal evidence that the NACC receives a large number of complaints annually, many of which result in prosecutions. Thailand could consider maintaining detailed statistics on the investigation, prosecution, conviction and sanctions for bribery offences. Such detailed statistics would be necessary to assess the effectiveness of Thailand„s enforcement regime.

(No step taken)



2010


Sanctions



contracting







Thailand – 86 –

2011


Sanctions



contracting







Thailand – 87 –

2012


Sanctions



contracting









Vietnam – 88 –

Vietnam Recommendations Relating to the Elements of the Active and Passive Domestic Bribery Offences








Vietnam is reviewing 11 years of implementation of the Penal Code 1999, including contents related to corruption, bribery. This step creates the foundation to modify, supplement the Penal Code 1999. The review is expected to be completed by the third quarter of 2013. The Code revision will be carried out after that.

Early in 2012, Vietnam also reviewed 5 years of implementing the Law on Anti-Corruption 2005. The result of this review will be the basis for the amendments and supplements to this Law. The National Assembly is expected to consider and approve the new anti-corruption law to replace Law on Anti-Corruption 2005 in November 2012.






Relating to amending the provisions on corruption and bribery in the Penal Code 1999, in the coming time, Vietnam will review and propose solutions to modify the provisions, including provisions on bribery of national officials; bribery of foreign officials or officials of public international organizations; embezzlement, misappropriation or other diversion of property by a


Vietnam – 89 –

public official.



Vietnam is reviewing 11 years of the Penal Code 1999 implementation, including contents related to corruption, bribery. This step creates the foundation to modify, supplement the Penal Code 1999. The review is expected to be completed by the third quarter of 2013. The Code revision will be carried out after that.

Relating to amending the provisions on corruption and bribery in the Penal Code 1999, in the coming time, Vietnam will review and propose solutions to modify the provisions, including provisions on legal persons‟ liability for bribery offences.




Relating to amending the provisions on corruption and bribery in the Penal Code 1999, in the coming time, Vietnam will review and propose solutions to modify the provisions, including provisions on sanctions and jurisdiction.



The review and improvement of the Criminal Procedure Code have been included in law development plan of 2013. In this process, Vietnam will study the recommendations of the thematic review.


Vietnam – 90 –



Vietnam is making great efforts to develop a database on anti-corruption. At the present moment the Government Inspectorate has compilation of data on trial of offence of accepting bribes for the years of 2010 to 2012. The data in 2012 is furnished with more details on the level of sanctions.



2010


Sanctions



contracting




- -

14 cases with 34 persons

convicted

-


- - - -


- - - -


Vietnam – 91 –

2011


Sanctions



contracting


- - - -


- - - -


- -

20 cases with 69 person

convicted

-


- - - -


- - - -


Vietnam – 92 –

2012


Sanctions



contracting


- - - -


- - - -


- -

12 cases with 43 persons convicted

- Suspended sentence: 5

- sentence of 3 years and less than 3 years' imprisonment: 15

- sentence of more than 3 years to 7 years' imprisonment: 8



- life imprisonment sentence or death sentence: 1


- - - -


- - - -


Vietnam – 93 –


If, since October 2010, your jurisdiction has undergone a review under the UNCAC (including as

part of the pilot project) regarding the implementation of UNCAC Chapter III on Criminalization and

Law Enforcement, then you are invited to append the conclusions and recommendations from the

review(s) to this document. Appending this information is completely voluntary, but will help ensure

that the information on your jurisdiction is up-to-date.

Vietnam was selected to be reviewed in the first review cycle in 2011. However, the Government

Inspectorate of Vietnam has actively coordinated with the ministries and central agencies to

prepare for the review process from the end of 2010. Vietnam established the working group and

Action plan UNCAC review of implementation. At the same time, on 07 April 2010, the Prime

Minister signed Decision No. 445/QD-TTg to issue the Vietnam Plan to implement the Convention.

The first review cycle focuses on Chapter III (Criminalization and Law Enforcement) and Chapter

IV (International Cooperation), including 35 articles, 180 specific questions. Among those, 145

questions are on the level of compliance, 35 questions on the need for technical support a part

from five questions on general information relating to the ratification process, the legal system, the

position of the Convention in the legal system as well as the advantages and challenges in the

implementation of the Convention). In 145 questions about the level of compliance (corresponding

to the 145 requirements of the Convention), 96 obligatory requirements to apply, regulate or

implement; 28 obligatory requirements to be considered for application, implementation or

adoption and 21 optional requirements to be considered for implementation or application. The

questions of the level of compliance are classified according to three levels, as follows: (i) Option

1: promulgated and fully implemented; (ii) Option 2: promulgated and implemented, but not fully;

(iii) Option 3: not promulgated and not fully implemented; (iv) option 4: there is no information.

Self-assessment results showed that Vietnam has promulgated, followed and fully implemented

102 among 145 requirements of the Convention; promulgated, followed and implemented but not

fully 29 among 145 requirements of the Convention. Vietnam has not issued and not yet fully

implemented the requirements of 14 requirements of the Convention. The choice of option 2 to 29

requirement and option 3 for 14 requirements reflects the actual situation of the legal system,

consistent with the reserved contents and declaration of Vietnam when ratifying the Convention. In

general, Vietnam has completely met almost all the requirements of the Convention within the

content of the first review cycle. However, Vietnam also practically identified the specific contents

which are not suitable and the difficulties and challenges in fully and comprehensively meeting the

requirements of the Convention, especially the requirements to complete criminal laws, criminal

procedure laws and mutual legal assistance.

Evaluation results of the group of international experts (including experts from the Italy, Lebanon,

with the support of the CoSP Secretariat) also made comments similar to the results of Vietnam

self–assessment report. Of the assessment process (according to the Resolution of the

Conference of the States Parties to the Convention), Vietnam has fully complied with the

requirements set out and was one of the first countries to complete the assessment process in the

second year. With regards to the results of implementation assessment, the experts basically

agree with the options of Vietnam. On that basis, the experts analyze and compare the level in

meeting the requirements of the Convention in the aspects of laws, enforcement practices, as well

as identifying specific technical assistance needs. The experts have adjusted the level of

compliance (from option 1 to option 2) for 8 requirements of the Convention and make more

specific recommendations, particularly with criminalizing a group of corrupt acts; strengthening

coordination mechanisms between the functional agencies to prevent and combat corruption;


Vietnam – 94 –

taking measures to promote international cooperation in preventing and combating corruption.

thematic review on criminalisation of bribery in asia and the … management, adb/oecd...

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