What are the biggest challenges enforcement agencies/regulators face when investigating and prosecuting cases of bribery and corruption in your jurisdiction?
Bribery & Corruption (2nd edition)
The biggest challenges facing the enforcement agencies in investigating and prosecuting cases of bribery and corruption, mostly come from the difficulties in evidence collection and consolidation, which is aggravated by the developments of economy and technology. The characteristics of the bribery related cases include the concealment of the misconducts per se, and the collusion among the involved parties. Dynamic business models in different industries and the adoption of high-end technologies require a better understanding and in-depth knowledge from the enforcement authorities in investigation and prosecution. For example, instead of going directly through the bribery offering party, improper payments in the form of bitcoin could be transferred to the bribery taking party through a non-related third party based in other countries, and in the name of the legitimate business purpose. Under the circumstances where physical evidence is not solid, the alignment among the involved parties in non-cooperation with the authorities will increase the difficulty in further conviction. Additionally, if the cases involve extra-territorial factors such as foreign entities, then cooperation from the authorities in other jurisdictions will be needed, for which the process is usually time-consuming, whilst the investigation itself is time-sensitive.
One major challenge for French authorities derives from the imbalance between the resources devoted by large companies involved in bribery cases to their criminal defence, on the one hand, and the resources allocated by the government to prosecute those cases, on the other hand.
In addition, French authorities must guarantee the right to a fair trial to both natural and legal persons, even if they have conflicting interests, and even though they are not given the same procedural avenues, since natural persons cannot enter a DPA or NPA style agreement under French law (see 18.).
In that respect, another challenge lies in the assimilation, by French judicial authorities, of negotiated proceedings and settlements, which are not part of the French legal tradition, particularly with respect to criminal matters, but which can prove a mutually beneficial tool for both judicial authorities and defendants.
It is a general problem that the public prosecutor’s offices are often poorly equipped. Their personnel capacities are often not sufficient to manage extensive cases of bribery and corruption. Enforcement agencies need specialized knowledge to uncover and recognize the generally well-hidden structures of complicated corruption and bribery cases. As a consequence, major difficulties arise for enforcement agencies while investigating, gathering evidence and prosecuting.
Compliance with international agreements and incorporation of related provisions in Greek Law made available a sufficient toolbox to enforcement agencies to enable effective action against bribery and corruption. Due to the fact that same changes have been ongoing for a number of years in many fields (tax, compliance, law) there is lack of co-ordination and central monitoring of these efforts. This is especially true when it comes to defining the jurisdiction of various enforcement agencies within different or parallel procedures.
There is need to focus on certain areas of interest (depending on the indications or information available on possible misconduct) so that enforcement agencies do not exercise overlapping powers on the same subject- matter.
The legal-framework is now up-to-date with instruments to fight corruption effectively but it lacks specific provisions in respect to entities who may be involved in acts of corruption and would make use of leniency or settlement provisions in order to terminate legal procedures. Such provisions exist, to some extent, for individuals but do not exist for entities.
One of the key challenges facing enforcement agencies/regulators relates to the resourcing and expertise available to them. An absence or limitation of resources means that many State regulators face a consequent lack of sufficient experience or manpower to allow the regulator comprehensively investigate alleged offences. In the bribery and corruption space, this is perhaps best evidenced from the lack of prosecutions historically in the area.
Certain regulators have outsourced functions in order to avail of relevant expertise and it may be that this trend must continue in the near terms whilst regulators and other State bodies build up their internal expertise and resources.
Perhaps the biggest challenges that enforcement agencies/regulators face when investigating and prosecuting cases of bribery and corruption in Italian jurisdiction are those related to the limited traceability of money flows, as a consequence of an historical preference in some areas of Italy for the use of cash payments instead of other (more easily traceable) payment methods. Of course, this characteristic has led to the formation of large quantities of money of unknown origin that can be used as a bribe. On top of that, the proceedings related to bribery and corruption crimes share the same problems which affect all the other criminal proceedings (such as the regulation of the statute of limitations, which elapses sooner than in other Countries, causing many trials to end without any conviction, even in presence of strong evidence of guiltiness).
As mentioned above (see question 16), an internal report on the Central Anti-Corruption Service (Centrale Dienst ter Bestrijding van Corruptie/Office Central pour la Répression de la Corruption) shows that the lack of resources is the biggest challenge as there has been a serious shortage of staff and resources for a number of years. As a result, only few cases regarding corruption are being investigated and prosecuted.
Under Japanese law, prosecutors are required to prove that both a giver and a taker (i.e., a public official) offered and received a bribe while recognising that the purpose is to gain and receive advantageous treatment in connection with the receiver’s authority. In addition, as bribery is committed secretly, there would be no explicit evidence to establish the intent of the giver and the taker. As such, one of the biggest challenges that prosecutors and police officers are facing is the difficulty in collecting strong evidence to prove the intent of the bribe-giver and the bribe-taker. In addition, investigations of bribery cases of foreign public officials generally face additional difficulties in collecting relevant evidence because the crime scenes are abroad.
Political interference. Most of the culprits have connections in high offices and eventually investigations and or cases collapse along the way. Investigation officers are known to sabotage the entire process of investigation which trickles down to a unsuccessful prosecution when they fail and or refuse to complete investigation, produce investigation reports or even appear as witnesses in court. Judicial officers may also compromise the prosecution of cases when they take bribes to render favourable decisions.
FCPA investigations are inherently international in scope because they involve wrongdoing outside the United States. Any successful government investigation requires coordination with foreign government counterparts to, for example, obtain evidence abroad. In the absence of coordination and cooperation, US government investigations are more difficult and take more time to pursue. Where US law enforcement has a close relationship with a foreign counterpart, information about a violator can be quickly and easily exchanged without awaiting results from formal, lengthy channels established by mutual legal assistance treaties. As a result of such relationships, US and foreign authorities have been able quickly to share investigative leads and documents, as well as jointly pursue global resolutions.
The hurdles and barriers related with gathering sufficient evidence to build strong and successful cases; in Mexico, most of the cases that are dismissed or not prosecuted by the MP are due to loopholes and formality mistakes during prosecution procedures.
In addition to the foregoing, the biggest challenge is to overcome the elevated levels of corruption within the prosecuting and judicial authorities, as well as the lack of protection of the prosecutor and judicial authorities against political retaliation.
Lack of expertise, resources and legal uncertainties. Entering into a settlement agreement creates an expectation of a clean slate. However, uncertainty looms over agreements as the Brazilian Clean Company Act provides that jurisdiction to several entities to enforce its provisions.
The principal challenges will be resource and expertise. The criminal standard of proof (beyond a reasonable doubt) is high and so successful prosecutions will invariably require significant investigative resource to succeed. Prosecutorial guidelines also require that prosecutors only initiate criminal proceedings where the evidence adduced provides a reasonable prospect of a conviction or where prosecution is required in the public interest. This means that only cases that have a high prospect of success will tend to be thoroughly investigated and prosecuted.
The biggest challenge that enforcement agencies face is the lack of available resources.
One of the main challenges faced by the authorities responsible for the investigation of corruption has been in the latest period the excessive publicity of some of the causes, which represent a form of pressure exerted upon them, quite often being accredited in the media, to this end, different politically affiliated persons.
CPIB has highlighted that one of the biggest challenges that it faces is that corruption is hard to detect – with perpetrators going to great lengths to conceal the corrupt transactions and proceeds. CPIB also highlighted that, for corruption, both the giver and receiver of bribes are offenders who would avoid telling the truth to shield themselves from criminal prosecution.
Furthermore, evidence gathering in cross-border transactions would also typically pose a challenge for enforcement agencies.
Generally, Swiss law enforcement agencies suffer from the same limited resources as many of their colleagues abroad, leading to a need to select the key cases carefully in order to prosecute them successfully.
In international cases in particular, Swiss prosecutors frequently struggle with obtaining the necessary evidence from abroad to prosecute Swiss businesses and the responsible management, despite considerable efforts to obtain access to evidence by means of mutual legal assistance. This applies mutatis mutandis to the prosecution of money laundering offences, where the assets in question stem from corrupt foreign business activities. On the other hand, the recent efforts to coordinate the Swiss prosecution with the activities of foreign authorities has shown certain results, and it is therefore expected that this approach is pursued further.
In domestic cases in particular, it seems that bribery in the private sector is not prosecuted to the full extent possible, mainly due to a lack of access of the authorities to the information required for a successful prosecution, as well as a noticeable lack of interest in such prosecution on the side of the affected private sector.
There have been reported difficulties over the SFO's retention and recruitment of senior staff. The SFO has also yet to establish the free flow of experienced legal professionals into and out of the organisation which, for example, has helped to make the US Department of Justice so successful. This high turnover of staff, combined with the complexity of the cases, has been a material cause of delay within the SFO. Recently, the SFO has dropped a number of investigations (including two very high-profile investigations) in order to ease the organisation's backlog of cases.
Moreover, the SFO has been criticised over its apparent inability to progress from a DPA with companies to the prosecution of the individuals responsible for the offences committed. This is the case despite details of individuals' illegal behaviour being published in the DPA.
The SFO has faced challenges in the past regarding the funding of large "blockbuster" cases, although, as noted above, recent moves have been made to a more flexible budget structure which should reduce this challenge in the future.
Finally, there is a relative lack of enforcement precedent under the UK Bribery Act compared to, say, the FCPA. The body of case law is small and this can make it difficult for both the SFO and the investigated party to know where the boundaries lie.
Before the inclusion of remedial agreements in the Criminal Code, organisations and individuals had very little incentives to self-report. This placed a great burden on the agency responsible for investigation and prosecution to collect sufficient evidence to advance prosecutions. These agreements however are a new tool that allow prosecutorial authorities to stay any proceedings related to an offence, if the organization complies with the terms of the agreement. The aim is to reduce the burden of conducting an independent investigation and encourage compliance with the CFPOA.
Cases of bribery and corruption in Portugal are investigated and prosecuted well, although, in some cases, there are difficulties in finding means of action to carry out with sophisticated matters, methods and intervenient.
We consider that though communications and judicial assistance are getting better every year, the truth is that Portuguese authorities still struggle to gather evidence, particularly when the cases involve several jurisdictions.
In Argentina, anticorruption enforcement was historically weak, partly because of the enforcement authorities’ lack of appropriate legal resources/tools and capabilities. A new anticorruption framework has strengthened enforcement authorities capacities, giving place to investigations and enforcement actions which are unprecedented in effectiveness (e.g. more than 30 leniency agreements in the Notebooks scandal case), reach (both public officials and prominent business people indicted, some of them suffering preventative detention) and time frame (e.g. a complex investigation in the notebooks scandal was sent to oral trial in less than a year, when average duration of prior corruption investigations was around 12 years). Current challenges relate to the need to apply the new legal tools in respect of constitutional rights and defendants’ procedural guarantees, avoiding an extortive use of preventative detention, and achieving legitimacy against allegations of politically-biased investigations.
The biggest challenges are investigation process itself. Unfortunately, our institutions are not in position to start an investigation of a corruption case and lead that process until a situation where the infringer is punished.