European Cross-Border Bribery Taskforce Conference - Breaking the Chains of Corruption

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1 European Cross-Border Bribery Taskforce Conference - Breaking the Chains of Corruption 25-26June 2015 Paris Boštjan Lamešič, Assistant to Slovenian National Representative to EUROJUST, District Prosecutor

2 Timeline In 2008 Finnish, Austrian, and Slovenian competent authorities begin investigating suspicions of the Finnish company having bribed Slovenian officials in return for winning the army s vehicle procurement contract; Formal investigation requests brought against two people; Two people indicted; Indictees declared guilty by first-instance court; High court upholds first-instance court s ruling Charges brought against five people for receipt of consideration in return for unlawful intermediation (Art. 269 of the Criminal Code) and making consideration in return for unlawful intermediation (Art. 269a)

3 Charge 4 accused for commiting criminal offence under Article 269: Whoever accepts an award, gift or any other favour or promise or offer for such a favour for himself or any third person, in order to use his rank or influence to intervene so that a certain official act be or not be performed, shall be sentenced to imprisonment for not more than three years. 1 accused for commiting criminal offence under 269a: Whoever promises, offers or gives an award, gift or any other favour to another person for himself or any third person, in order to use his rank or influence to intervene so that a certain official act be or not be performed, shall be sentenced to imprisonment for not more than three years.

4 Charge Promise of an award: promise evidence that the promise was given/received were found in FI, AT and SI ( s, presentations, (un)classified meeting records, personal notes, testimony's; money was divided in FI, AT and SI; money flow to AT) an award - description of why the reward was promised and what was the reward (EUR); the defendants were not in title to it; in order to use - criminal offence is committed when the perpetrator receives the promise and it doesnt matter whether he/she actually intervenes; influence - is bound by social position or official duties of the perpetrator and this influence. This influence can be misused in case if the perpetrator is superior to the public official and even if he/she is not superior.

5 Charge official duties - procurement of equipment for army is regulated by law in a procedure where official persons have their powers and responsibilities. Defense arguments: Unknown place, unknown time and unknown way/mode : unknown place : Place: where the meetings took place (correspondence, meeting notes and records); Time and place are not the elements of criminal offence unknown time : Time: ; unknown communication way : promise was received was described with the timeline of events (cause consequence).

6 Trial Trial begins: 51 hearings; 34 witnesses 11 examined by video link; documents (600 classified) First-instance judgement; High Court judgement; Supreme Court judgement; Constitutional Court judgement.

7 Evidence-Gathering Efforts to complete 278 million EUR worth deal began as early as September 2004 (contract signed on !): Finding intermediaries and the right companies (local partners with political support) in both Finland and Slovenia; distribution of commission payments; Correspondence, (classified) meeting notes and records million EUR transferred to Austrian bank; Lack of paper trail (Austrian Anti-Money Laundering Office and Austrian Interpol become involved).

8 Evidence-Gathering Impossible to prove that public tender was irregular or rigged: Different stages of procedure and participants (military personnel; changes to staff only two or three remained throughout); Criteria model (Commission members objectively added criteria points together; members rotated regularly; etc.); All documents in order; Witnesses either remember nothing or were not formally in charge; In Slovenia: promotion; deployment on mission; or retirement; in Finland all witnesses laid off; Revolving door ; Most information obtained from former Ministry of defense staff or employees of competing firm; Surprises possible.

9 Evidence-Gathering Emphasis on transfer of funds from Finland to Austria and from Austria to Slovenia, and proving fictitious transaction in Austria and Slovenia: Poor or non-existent transaction documentation; Inappropriate content of contract (back-dated contracts; wrong scope of contracts; forged invoices; bank accounts belonging to private individuals; copy-pasted contracts; minor items in contracts that did not fit into the transaction); Payments of multiple millions of euros for reading papers and searching online; Arguments of the defence unacceptable.

10 Evidence-Gathering (independently / through JIT) Evidence collected both independently in Finland, Austria, and Slovenia and through JIT: Evidentiary actions: home searches; interrogations/examinations; bank account checks; communications intercepts; special evidence-gathering actions; The JIT is created pursuant to an agreement between two or more EU member states and/or third parties/countries for a particular purpose (pursuit of criminal investigation) and for a limited period of time. Where investigation undertaken by an EU member states requires complex and demanding investigative activities by other EU member states; Where the circumstances of the case necessitate co-ordinated and harmonised action by the EU member states involved; At as early a stage in the procedure as possible; In the event both serious and less serious criminal offences; Severity of criminal offence less important than its cross-border nature

11 Joint Investigation Team JIT Joint Investigation Team (JIT) Agreement singed between Finland and Slovenia; Austria joins on ; Eurojust joins in December Statutory framework: 2000 Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (Art. 13!); Structure and actions of JIT: Members/Team/Team Leader; Team members must have clear data and guidelines about: Hierarchy; Differences in legislation; Evidence-gathering methods to ensure admissibility. Not all members need necessarily to be in same location (regular meetings; continuous exchange and phone conversation); Each member state undertakes actions in its territory, but may act outside its territory if so agreed (house searches and interrogations, review of seized documents - language proficiency!);

12 JIT JIT co-operation with other Slovenian authorities: Court of Audit; Anti-Corruption Commission; Ministry of Defense. Benefits of JIT: Each country operates in line with its own laws (!); Direct exchange of information and direct requests for investigative actions between team members No letters of request (quicker and cheaper). Team members can be present during home searches and examination of witnesses and suspects; Informal exchange of specific knowledge; Co-ordination between investigating authorities of different countries; Joint decision-making as to what should be done and when; Cooperation and assistance between authorities continued even when the JIT expired; Eurojust participation: co-ordinating meetings, equipment, funding.

13 Problems with JITs? Question of (unnecessary costs of) translating documents: Translation of documents received and sent; Lengthy translation times may delay answers; Unnecessary translation costs (same document must be translated twice); Support Centre with the Slovenian Prosecutor General s Office. Exclusion and admissibility of evidence? Example: Drug trafficking case and admissibility of evidence.

14 Exclusion of Evidence Five-part defence argument: Interrogation of suspects in Finland: Suspects not fully aware of their rights (to remain silent); Manner, duration, and frequency of interrogation; Home searches in Finland: No court warrant; mandatory two witnesses not present. European Court for Human Rights decisions: Harju:FI and Heino:FI (subsequent court control) Evidence gathered in Slovenia based on Finnish evidence ( Fruit of the Poisoned Tree doctrine) must be excluded; Evidence gathered in Austria must be excluded; JIT members would have to adhere to Slovenian law.

15 Exclusion of Evidence: Suspect Examinations in Finland Prosecutor s arguments: Suspects are Finnish nationals; offence was perpetrated in Finland; evidence was gathered for Finnish proceedings under Finnish law; evidence was gathered before JIT was established; Finnish law does not mandate that the right to remain silent must be given to the suspect. Finnish minutes of interrogation state: suspect status; right to witnesses to be present during hearing; criminal offence; right to inspect and sign minutes; right to legal representation. European Convention on Human Rights: Saunders v. UK (1996); I.J.L. and others v. UK (2000); Magee v. UK (2000); Funke v. France (1993); Jalloh v. Germany (2006): no psychological or physical compulsion used (suspect was free to remain silent) Total of 15 interrogations over two years lasting 8 to 10 hours; rest periods, meals provided; suspect consented.

16 Exclusion of Evidence: Home Searches in Finland Prosecutor s arguments: Suspects are Finnish nationals; offence was perpetrated in Finland; evidence was gathered for Finnish proceedings under Finnish law; evidence was gathered before JIT was established; Standards of evidence in Finland (same as in Slovenia) Finnish law (and ECHR) does not mandate the presence of two witnesses at house search; this is merely Slovenian procedural provision and it is not a human right; Harju:FI and Heino:FI cannot apply to this example; Two sources of evidence: home search and seizure of objects (lower standard of evidence; voluntary nature); Slovenian Constitution and Code of Criminal Procedure valid only in Slovenia.

17 Exclusion of Evidence: Slovenian and Austrian Evidence Prosecutor s arguments: everything was done according to FI and AT law. If Finnish evidence is not illegal, neither is evidence gathered in Slovenia; Procedural actions undertaken by Austrian prosecutor were subsequently subject to control by Austrian court; JIT complied with international and national legislation. Each state represented on JIT complied with its national legislation.

18 Impactof the mediaand politics no evidence, unknown place, unknown time, unknown way, politicaly constructed! RKED NOT PROTECTIVELY MAR

19 THE END? Slovenian Constitutional Court judgement; annuled the first instant judgement and returned the case to the court of first instance for retrial and new decision AT Supreme Court affirmed/upholded the judgement of the court of first instance (conviction); FI Higher Court decision?

20 THANK YOU FOR YOUR ATTENTION! (0)