Global contacts... 3 World Map... 4 Foreword... 6 Europe, the Middle East and Africa... 7 Czech Republic... 8 France... 9 Germany Italy...

Transcription

1 Ati-Bribery ad Corruptio Review

2 cotets Global cotacts... 3 World Map... 4 Foreword... 6 Europe, the Middle East ad Africa... 7 Czech Republic... 8 Frace... 9 Germay Italy Polad Romaia Russia Saudi Arabia Slovak Republic Spai The Netherlads Turkey Ukraie Uited Arab Emirates Uited Kigdom The Americas Brazil Uited States of America Asia Pacific Australia Hog Kog Idoesia Japa South Korea People s Republic of Chia Sigapore Thailad Worldwide cotact iformatio... 47

3 Ati-Bribery ad Corruptio Review 3 Global cotacts Europe, the Middle East ad Africa Belgium Sébastie Ryeladt Dorothee Vermeire Czech Republic Vlad Petrus Jidrich Arabasz Frace Thomas Baudesso Charles-Heri Boeriger Arthur Millerad Germay Heier Hugger David Pasewaldt Joche Pörtge Italy Atoio Golio Beedetta Veturato Luxembourg Albert Moro Claude Eische Morocco Mustapha Mourahib Polad Marci Ciemiski Pawel Pogorzelski Romaia Daiel Badea Biaca Alecu Russia Timur Aitkulov Olga Semushia Saudi Arabia Graham Lovett Khalid Al-Abdulkareem Slovak Republic Vlad Petrus Miroslava Obdrzalkova Spai Berardo Del Rosal Mauel Sachez-Puelles The Netherlads Jeroe Ouwehad Staa Maric Simoe Peek Turkey Mete Yegi Zeyep Düzgöre Ukraie Jared Grubb Yevhe Deyeko Irya Yelisyeyeva Uited Arab Emirates James Abbott Christopher Youg Uited Kigdom Roger Best Luke Tolaii Patricia Barratt The Americas Brazil Thomas Lemouche Uited States of America David DiBari David Raski Mega Gordo Polly Syder Asia Pacific Australia Diaa Chag Jei Hill Kirste Scott Hog Kog Wedy Wysog Motse Ferrer de Sajose Richard Sharpe Idoesia Lida Widyati Gideo Maullag Japa Michelle Mizutai Masayuki Okamoto South Korea Thomas Walsh Da Park People s Republic of Chia Wedy Wysog Lei Shi Tia Wu Sigapore Nish Shetty Jaice Goh Shoba Chadra Thailad Adrew Matthews Vipavee Kaosala Clifford Chace,

4 4 Ati-Bribery ad Corruptio Review World Map Please click o the coutry ame o the iteractive map below to take you directly to the relevat chapter. CZECH REPUBLIC THE NETHERLANDS UNITED KINGDOM FRANCE GERMANY UNITED STATES OF AMERICA SPAIN ITALY BRAZIL Clifford Chace,

5 Ati-Bribery ad Corruptio Review 5 RUSSIA POLAND SLOVAK REPUBLIC UKRAINE ROMANIA TURKEY HONG KONG PEOPLE S REPUBLIC OF CHINA JAPAN SOUTH KOREA UNITED ARAB EMIRATES SAUDI ARABIA THAILAND INDONESIA SINGAPORE AUSTRALIA Clifford Chace,

6 6 Ati-Bribery ad Corruptio Review Foreword Prosecutios for bribery ad corruptio cotiue to attract media headlies aroud the world ad, i respose, iteratioal compaies cotiue to review what they have to do to address the risks to their busiess, ad to their reputatio. Fudametal to this is stayig o top of relevat legislative developmets ad eforcemet treds i the coutries i which they operate. Some atioal authorities have eve highlighted this iformatio gatherig as a regulatory requiremet for directors ad seior corporate officers. This review looks at recet developmets i some of the jurisdictios aroud the world where we have offices, focusig particularly o chages to legislatio, both recet ad proposed, ad o prosecutios ad eforcemet treds. We ited to produce updates at regular itervals. Patricia Barratt ad David Pasewaldt, Editors Clifford Chace,

7 Europe, the Middle East ad Africa

8 8 Ati-Bribery ad Corruptio Review Czech Republic Chages to legislatio I May 2015, the Govermet s expert group o the issue of corruptio expressed its support for three draft amedmets that had bee prepared by the Czech brach of Trasparecy Iteratioal: (i) a draft amedmet to the Political Parties Act that establishes a authority resposible for the supervisio of the fiacig of political parties; (ii) a draft amedmet to the Electoral Act that prohibits doatios by corporatios to political parties; ad (iii) a draft of a Govermet Decree that provides for better protectio of whistleblowers from amog state clerks. I May 2015, the Govermet approved the draft of a amedmet to the Act o Public Prosecutors that, iter alia, establishes a special Public Prosecutor s Office resposible for sigificat corruptio cases. I recet years, several Miisters of Justice have tried to amed the Act o Public Prosecutors, with o success as yet. Prosecutios I February 2014, a ifluetial Prague-based lobbyist was arrested ad charged with fraud i relatio to the city-ru public trasport compay. I May 2015, the Court retured the case to the prosecutor o the basis of procedural errors. I October 2012, a advisor to a former Prime Miister was charged with fraud i relatio to the govermet s purchase of armoured persoel carriers. The crimial proceedigs are still pedig before the Court. I Jue 2012, a former Defece Miister was charged with the misuse of power. She was stripped of her parliametary immuity later that year. The case is still beig ivestigated; a idictmet is expected to be filed this year. I May 2012, a Member of Parliamet ad Regioal Goveror, as well as several other people, were arrested ad charged with takig bribes. The Member of Parliamet was stripped of his parliametary immuity later that year. I April 2015, two of the other accused were each seteced to seve ad a half years i priso; however, the verdict has ot yet take effect. The crimial proceedigs i relatio to the former Member of Parliamet ad Regioal Goveror are still pedig before the Court. OECD report o ati-bribery published I May 2015, the Orgaisatio for Ecoomic Co-Operatio ad Developmet (OECD) published its latest report o the compliace of the Czech Republic with its obligatios uder the OECD Covetio o Combatig Bribery of Foreig Public Officials i Iteratioal Busiess Trasactios 1. The report states that sice the Czech Republic s Phase 3 Report i March 2013, out of 21 separate recommedatios, it has fully implemeted five, partially implemeted te, ad ot implemeted six. Accordig to the OECD Workig Group, the Czech Republic still eeds to make sigificat progress o certai key recommedatios cocerig its legislative ad istitutioal framework for implemetig the Ati-Bribery Covetio. This icludes implemetig the recommedatio to guaratee greater idepedece of prosecutors so that political cosideratios caot be take ito cosideratio, which has ot bee implemeted yet (as metioed above). The report also poits out that although bribes are expressly o-tax deductible uder the law i the Czech Republic, virtually o further steps have bee take sice Phase 3 to icrease the awareess of the tax authorities ad the private sector that bribes to foreig public officials are ot tax deductible. I additio, traiig has ot bee provided to the tax authorities o how to detect bribe paymets that are disguised as allowable expeses i tax returs. Protectio for whistleblowers is also cosidered iadequate, util the amedmet referred to above is adopted by Parliamet. BACK TO MAP 1 Czech Republic: Follow Up to the Phase 3 Report & Recommedatios May 2015, available at: Clifford Chace,

9 Ati-Bribery ad Corruptio Review 9 Frace Chages to legislatio Frace has recetly icreased the pealties for the offeces of corruptio ad tradig i ifluece. Law dated 6 December 2013 addressig the fight agaist tax fraud ad serious ecoomic ad fiacial crime has give the courts the power to icrease fies to EUR 1 millio, or to double the amout of proceeds derived from the offece, if higher. Natural persos may also icur a priso setece of up to 10 years. Aother law passed o the same date has established a ew fiacial prosecutor (see below). I additio, the laws adopted i December 2013 iclude: (i) provisios to protect whistle blowers ad witesses reportig corruptio; (ii) measures allowig ati-corruptio associatios to joi the crimial prosecutios as civil claimats; ad (iii) measures to stregthe ivestigative capacity (special ivestigative techiques used i the prosecutio of orgaized crime cases, such as the use of udercover agets). A decree dated 25 October 2013 created a Cetral Office for combatig corruptio ad prevetig fiacial ad tax offeces ( Office cetral de lutte cotre la corruptio et les ifractios fiacières et fiscales ), which ow employs about oe hudred highly specialised public officials. Prosecutios Eforcemet activity for corruptio offeces remais limited i Frace, ad o Frech compay has bee successfully covicted i Frace i relatio to foreig bribery. This is despite the fact that Frech compaies have bee pursued outside Frace: for example, i 2013 Total agreed to pay aroud USD 398 millio to U.S. authorities, as part of a settlemet which also ivolved a compliace moitor for three years, i relatio to charges coected with violatios of the Foreig Corrupt Practices Act (FCPA) i Ira. I a recet case, Safra, a Frech compay, ad two of its executives were prosecuted o charges of havig bribed Nigeria public officials i order to secure a supply cotract. The Paris Crimial court (le Tribual correctioel) iitially foud Safra guilty ad imposed a EUR 500,000 fie (while acquittig the executives), o 5 September However, o 7 Jauary 2015, the Paris Court of Appeal declared that the offece of active bribery was isufficietly grouded ad reversed the first istace decisio, exoeratig all the cocered parties. I reactio, Eliae Houlette (the Fiacial Prosecutor, see below) declared, o 18 Jauary 2015, that the rules o the crimial liability of legal persos are o loger appropriate for the way i which large iteratioal corporatios operate. Case law must evolve to address this. 2 Frace has bee recetly criticized by the OECD for the very low umber of prosecutios i this area (see below). New Fiacial Prosecutor Law dated 6 December 2013 created the ew office of Fiacial Prosecutor, ad Mrs Eliae Houlette, was appoited to the post i Jauary Mrs Houlette has bee very active sice her appoitmet ad there has bee sigificat eforcemet activity i relatio to fiacial istitutios (i particular, baks), with several recet prosecutios of major fiacial istitutios for moey lauderig ad tax fraud. I a parallel developmet, judges have demostrated their willigess to impose much higher pealties o compaies tha i the past, whe oe major fiacial istitutio was required to make a paymet of EUR 1.1 billio, before ay judgmet was issued o the merits, which is uprecedeted i Frace. OECD report I her address o 2 December 2014 to the OECD miisterial coferece, Mrs Christiae Taubira, the Frech Miister of Justice, reaffirmed Frace s commitmets to cofrot corruptio. The OECD s report o Frace i October had heavily criticized the fact that oly 33 proceedigs had bee iitiated ad oly five seteces imposed sice Frace siged the OECD Covetio o Combatig Bribery of Foreig Public Officials i Iteratioal Busiess Trasactios i The OECD Workig Group o Bribery called upo Frace to itesify its actios ad to implemet measures i order to combat corruptio of foreig public officials ad bribery, formulatig recommedatios. I a follow-up report published o 19 December 2014, the OECD Workig Group commeded several sigificat reforms implemeted by Frace, but cocluded that Frace eeded to take further steps i order to comply fully with the OECD Covetio. The Workig Group asked Frace to cotiue its actios regardig the 2 Eliae Houlette was reported i Le Mode o 18 Jauary 2015 as sayig: Les règles de resposabilité de la persoe morale e sot plus adaptées au foctioemet des grads groupes. Il faut que la jurisprudece les fasse évoluer. 3 Clifford Chace,

10 10 Ati-Bribery ad Corruptio Review prosecutio of corruptio of foreig public officials. Accordig to the 2014 report, 24 ew proceedigs were iitiated sice October The Frech Miistry of Justice said that measures already iitiated had proved a success as the umber of ivestigatios iitiated regardig corruptio had icreased by 75% i two years 4. Guidelies to stregthe the fight agaist corruptio i busiess trasactios O 14 April 2015, the Cetral Corruptio Prevetio Departmet (Service cetral de prevetio de la corruptio), a iter-miisterial service attached to the Miistry of Justice, released guidelies to stregthe the fight agaist corruptio i busiess trasactios. These guidelies, which are ot bidig, revolve aroud six mai priciples such as the implemetatio of a ati-corruptio compliace program, a sactios policy ad the preparatio of a operatioal risk mappig. BACK TO MAP 4 Press release published by the Miistry of Justice o 2 December Clifford Chace,

11 Ati-Bribery ad Corruptio Review 11 Germay Chages to legislatio There were recet chages i Germa crimial ati-corruptio legislatio ad there are a umber of further curret draft laws i this regard. Expasio of the crimial offece of bribig delegates As from 1 September 2014, sectio 108e Germa Crimial Code (Strafgesetzbuch) has bee ameded to make bribery of (ad by) Germa delegates a crimial offece, puishable with imprisomet of up to five years or a pecuiary fie. Uder the previous legislatio, givig bribes to Germa delegates ad members of the Europea Parliamet was, i priciple, oly subject to crimial liability i coectio with buyig or sellig votes. This gap i Germa ati-corruptio legislatio had bee idetified, i particular, by the Germa Federal Court of Justice (Budesgerichtshof) i the so-called Wuppertal corruptio scadal 5. I that case, the court held that muicipal delegates were ot public officials for the purposes of Germa crimial aticorruptio offeces uder sectios 331 et seqq. Germa Crimial Code, uless etrusted with admiistrative tasks goig beyod their madate. Furthermore, the ew law provides for the iclusio of the offece of bribery of (ad by) delegates (sectio 108e Germa Crimial Code [as ameded]) o the list of predicate offeces for moey lauderig (sectio 261 Germa Crimial Code). 6 Draft law for further stregtheig of Germa crimial ati-corruptio law There is also a curret draft law o fightig corruptio, which would expad the scope of the commercial bribery offece to acts beyod competitio, iclude this offece o the list of predicate offeces for moey lauderig (sectio 261 Germa Crimial Code) ad exted the jurisdictioal reach of Germa courts i respect of bribery of public officials: Uder the curret legislatio, crimial liability for takig ad givig bribes i commercial practice (Bestechlichkeit ud Bestechug im geschäftliche Verkehr) (sectio 299 Germa Crimial Code) requires (i accordace with the competitio model [Wettbewerbsmodell]) that the offeder (as receiver ) demads, allows himself to be promised or accepts, or that he (as door ) offers, promises or grats a beefit for himself or a third perso i a busiess trasactio i retur for a ufair advatage i competitio. I the future, accordig to the draft law, the crimial offece will also cover (accordig to the employer model [Geschäftsherremodell]) beefits give to a employee or a aget of a compay o the basis of a agreemet of wrogdoig (Urechtsvereibarug) i a busiess trasactio i retur for a breach of duty to this compay. I accordace with the explaatory otes to the Act, relevat duties to compaies ca arise from law or cotract. However, a actual breach of duty will ot be required (i the same way as o actual ufair advatage i competitio is required uder the curret versio of sectio 299 Germa Crimial Code). The draft law also proposes that the crimial offece of takig ad givig bribes i commercial practice be icluded as a predicate offece for moey lauderig (sectio 261 Germa Crimial Code), whe committed o a commercial basis (gewerbsmäßig) or as a member of a gag (bademäßig). The draft law would also amed the Germa Crimial Code provisios o corruptio for the iclusio of Europea public officials ( Europäische Amtsträger ) i additio to public officials ( Amtsträger ) (i the curret text). A defiitio of the term Europea public official will also be icluded. These chages ited to trasfer to the Germa Crimial Code the relevat provisios of the EU Ati-Corruptio Act (Europäisches Bestechugsgesetz, or EUBestG) regardig the equivalece of public officials of other member states of the Europea Uio ad public officials uder Germa law. However, the proposed chages go beyod the EUBestG as they would ot oly apply to the qualified crimial offeces of gratig ad acceptig bribes (sectios 332 ad 334 Germa Crimial Code), but also to the basic crimial offeces of gratig ad acceptig (illegal) beefits (sectios 331 ad 333 Germa Crimial Code). These basic crimial offeces oly require that a beefit be grated to or accepted by a public official without approval by the authority. The qualified offeces require, i additio, that the beefit be grated or accepted o the basis of a expressed or implied agreemet of wrogdoig (Urechtsvereibarug) that the public official, i retur, performed, or will i the future perform, a official act ad thereby violated, or will violate, his official duties. 5 I its judgemet dated 9 May 2006, file referece 5 StR 453/15. 6 For further details, please refer to our cliet briefig: Clifford Chace,

12 12 Ati-Bribery ad Corruptio Review Fially, the draft law provides for a equivalece arragemet for foreig ad iteratioal public officials uder a ew sectio 335a Germa Crimial Code. Accordig to this ew provisio, certai public officials of foreig states ad iteratioal orgaisatios would be treated as public officials uder Germa law for crimial offeces committed i public offices, if the offece cocers a future official act. The plaed chages aim at trasferrig the curret equivalece arragemets of the Iteratioal Ati-Corruptio Act (Iteratioales Bestechugsgesetz, or ItBestG) ito the Germa Crimial Code. However, these proposed ew regulatios exceed the ItBestG as well, i that they would apply ot oly to the crimial offece of gratig bribes, but also to the crimial offece of acceptig bribes. 7 Draft law o fightig corruptio i the healthcare sector I early 2015, both the Germa Miistry of Justice ad the federal state of Bavaria preseted draft laws o fightig corruptio i the healthcare sector, particularly aimig at the implemetatio of a ew crimial offece of takig ad givig bribes i the healthcare sector (Bestechlichkeit ud Bestechug im Gesudheitswese) i sectio 299a Germa Crimial Code. The backgroud to these draft laws is a decisio of the Germa Federal Court of Justice (Budesgerichtshof) dated 29 March , i which the court had foud that cotract doctors i private practice (iedergelassee Vertragsärzte) were either public officials or agets (for the purposes of sectio 299 Germa Crimial Code). Accordig to this case law, illegal beefits grated to cotract doctors i private practice i order to ifluece their behaviour are curretly ot prohibited uder sectio 299 Germa Crimial Code (bribery i commercial practice), or as gratig (illegal) beefits or bribes (sectios 331 et seqq. Germa Crimial Code) uder Germa crimial ati-corruptio law. The relevat draft laws aim at elimiatig this disparity. The explaatory otes emphasise the risks of improper collusio betwee, amogst others, cotract doctors i private practice ad pharmaceutical compaies arisig from the fact that medical professioals are, with some exceptios, the exclusive providers of medical treatmet ad various medical products are oly available to the customer o a medical prescriptio. New law amedig the Act goverig Federal Miisters ad the Act goverig the legal status of Parliametary State Secretaries O 2, the Germa Federal Parliamet (Budestag) passed a ew law amedig the Act goverig Federal Miisters (Budesmiistergesetz) ad the Act goverig the Legal Status of Parliametary State Secretaries (Gesetzes über die Rechtsverhältisse der Parlametarische Staatssekretäre), the so-called Waitig Period Act (Karezzeitgesetz). This requires curret ad former Federal Miisters ad Parliametary State Secretaries to otify the Federal Govermet i writig if they ited to take up employmet outside the public sector, ad eable the Federal Govermet to prohibit such employmet withi a period of up to 18 moths from leavig public office if there are grouds for believig that such employmet could have a egative effect o the public iterest. A egative effect o the public iterest will be assumed if the iteded employmet (i) relates to matters or areas i which the former Federal Miister or Parliametary State Secretary was active durig his madate, or (ii) may harm public cofidece i the itegrity of the Federal Govermet. The ew law follows recet moves by top-rakig politicias to the private sector, which were criticised by oppositio politicias ad by Trasparecy Iteratioal (TI). TI had called for a waitig period of three years where there was a coectio betwee the preset or former activities ad the iteded future activities. A Germa prosecutio authority had iitiated crimial ivestigatio proceedigs agaist oe idividual o charges of acceptig ad gratig (illegal) beefits, but these ivestigatio proceedigs were recetly discotiued (see below). Draft law o protectio of whistleblowers There is also a curret draft law to promote trasparecy ad the protectio agaist discrimiatio of whistleblowers (Whistleblower-Schutzgesetz). This proposes chages to Germa labour law ad civil service law, providig various privileges to whistleblowers. Specifically, employees would have the right to report violatios of legal obligatios i coectio with the employer s busiess activities to exteral authorities or, uder certai coditios, to the public, ad would be protected agaist beig pealised for doig so. I certai circumstaces whistleblowers would also have immuity from prosecutio i respect of various offeces of the Germa Crimial Code (disclosure of 7 For further details, please refer to our cliet briefig: 8 File referece: GrS St 57/202. Clifford Chace,

13 Ati-Bribery ad Corruptio Review 13 state secrets [sectio 97], breach of official secrets ad special duties of cofidetiality [sectio 353] ad abuse of trust i the foreig service [sectio 353a]). Call for a atio-wide cetral corruptio registry Both the Germa coferece of the Miisters of Justice (Justizmiisterkoferez) ad the Germa coferece of the Miisters of Ecoomics (Wirtschaftsmiisterkoferez) recetly requested the Germa Federal Govermet to establish a atio-wide cetral corruptio registry to fight corrupt ad illegal busiess practices ad to facilitate fair competitio. Compaies that had egaged i corrupt activities would be listed o this register ad could be excluded from public procuremet cotracts. Uder curret law, such opublic registries oly exist i ie of Germay s 16 Federal States (Budesläder), icludig Hesse, North Rhie-Westphalia, Bavaria, Berli ad Hamburg. Such registries are the subject of some cotroversy, partly because compaies may be listed for offeces other tha corruptio, ad also because a fial covictio may ot be required for listig. A umber of registries iclude compaies as soo as ivestigatio proceedigs are commeced or eve where ivestigatio proceedigs have eded without a covictio, which has bee criticized by some as beig cotrary to the presumptio of iocece. Prosecutios Several ivestigatio ad court proceedigs have caught the attetio of the media. I August 2014, Formula 1 Maagig Director Berie Ecclestoe agreed to pay USD 100 millio i order to discotiue court proceedigs before the Muich Regioal Court relatig to alleged gratig bribes (Bestechug) (ad other charges) i coectio with the sale of Bayerische Ladesbak s Formula 1 ivestmet to a fiace ivestor i Accordig to the prosecutio, Berie Ecclestoe allegedly paid USD 45 millio to a ivestmet baker of Bayerische Ladesbak, Gerhard Gribkowsky, who was seteced to imprisomet of eight ad a half years for acceptig bribes (Bestechlichkeit) i separate court proceedigs i 2012, followig a comprehesive cofessio. With the discotiuace paymet of USD 100 millio, the amout of which is uprecedeted i Germa crimial procedure, Berie Ecclestoe beefited from sectio 153a Germa Crimial Procedure Code. This provisio allows for the discotiuace of crimial ivestigatio or court proceedigs if, amogst others, such discotiuace paymet is suitable to elimiate the public iterest i crimial prosecutio ad if the degree of guilt does ot preset a obstacle, while the presumptio of iocece remais. I February 2015, the Berli prosecutio authority discotiued ivestigatio proceedigs agaist a former Parliametary State Secretary ad the CEO of a major Germa car maufacturig compay i coectio with allegatios of gratig ad acceptig (illegal) beefits (sectios 331 ad 333 Germa Crimial Code) due to a lack of suspicio. The prosecutio authority had coducted its relevat ivestigatio proceedigs as from November 2013 after the former Parliametary State Secretary had take up a ew positio as the head of exteral affairs with the car maufacturer. I December 2014, the Neuruppi prosecutio authority commeced a ivestigatio ito alleged corruptio offeces i coectio with the costructio of the ew Berli city airport. I May 2015, the prosecutio authority aouced that it was ivestigatig four maagers of a Dutch costructio compay. A airport maager has bee take ito pre-trial custody after havig reportedly cofessed to receivig a cash paymet of EUR 150,000 i retur for approvig the paymet of ivoices by the Dutch costructio compay amoutig to EUR 65 millio without further verificatio. Eforcemet treds As a geeral tred, corruptio ivestigatio proceedigs o loger focus maily o idustrial compaies (as i the last decade) but exted also to the fiacial sector. There have bee several ivestigatio proceedigs by Germa prosecutio authorities ito baks ad fiacial istitutios coductig busiess i Germay, particularly regardig alleged gratig of (illegal) beefits to Germa public officials i the form of gifts ad hospitality. Germa legislatio is quite strict i this regard, ad Germa prosecutio authorities ad courts also apply strict stadards whe applyig this regime. This is particularly true whe it comes to value thresholds for gifts ad etertaimet grated to public officials, which are low compared to iteratioal stadards. BACK TO MAP Clifford Chace,

14 14 Ati-Bribery ad Corruptio Review Italy Chages to Legislatio The Prime Miister, Matteo Rezi, is reported to be persoally supportig reforms to ati-corruptio laws that would icrease the pealties for corruptio ad exted the period withi which corruptio charges could be brought. Legislative proposals approved by the Italia Seate o 1 April 2015 would, if passed, icrease the setece for corruptio of a public official from four to te years, to six to 12 years. The ba o tederig for public cotracts would also icrease from three to five years. The proposals would mea that charges for corruptio could be brought withi 15 years, ad it will o loger be possible to obtai a plea bargai for corruptio offeces. The short period of limitatio for corruptio offeces had bee criticised by the OECD as iadequate ad of particular cocer 9. The proposals also iclude measures to tighte rules agaist false accoutig ad moey lauderig, to eable prosecutors to cofiscate assets where the defedat caot show a legal origi, ad to provide icetives for whistleblowers i terms of reductio of applicable pealties. The legislatio will ow pass to Italy s Chamber of Deputies. Prosecutios Political corruptio has domiated headlies i Italy sice May 2014, whe seve maagers ad ex-members of parliamet were arrested for alleged attempts to ifluece public teders coected with Mila s Expo 2015 trade fair. The Cabiet has sice appoited a special commissioer to oversee all govermet cotracts relatig to the Mila Expo of The Prosecutio Service has stepped up eforcemet actio geerally, ad further prosecutios are aticipated followig implemetatio of the reform measures. The Fiacial Guard 2014 report The Fiacial Guard, a Italia law eforcemet agecy uder the authority of the Miister of Ecoomy ad Fiace, published its 2014 aual report o 8 April 2015, sayig they have reported 3,700 people for crimes agaist public admiistratio. Accordig to the report, oe out of every three public cotracts had irregularities, ad out of the USD 5 billio worth of public cotracts last year, about USD 1.62 billio was lost i cases of fraud. BACK TO MAP 9 The OECD s Follow up to Phase 3 Report ad Recommedatios, May 2014, available at: Clifford Chace,

15 Ati-Bribery ad Corruptio Review 15 Polad Chages to legislatio O 1, a substatial amedmet to the Polish Code of Crimial Procedure will come ito force (the Amedmet). The Amedmet is iteded to remodel crimial proceedigs i the directio of a more adversarial trial system, as well as to shorte proceedigs ad to reduce the burde imposed o judges. Of particular importace are the chages to the rules regardig the admissibility of evidece, particularly i respect of documetatio commissioed by the parties to the proceedigs. The Amedmet will mea that the iitiative i the coduct of evidetiary proceedigs will rest with the parties, ad the court will o loger be obliged to seek evidece. The parties to crimial proceedigs will be allowed to submit private documets (i.e. statemets, letters, otes or expert evidece commissioed by the parties), to be admitted as evidece by the court. The Amedmet also itroduces a clear prohibitio o the admissio of evidece gathered illegally (so-called fruit of the poisoous tree ). The admissibility of expert evidece commissioed by a party to the proceedigs is curretly uclear. I fact, the reports of such experts are ot formally recogized as evidece i ay curret legislatio cocerig crimial proceedigs. Similarly, such expert reports are ot cosidered as evidece i Polish civil proceedigs. The Amedmet expressly permits the admissibility of expert opiios commissioed by the parties to the crimial proceedigs. The aim of this chage is to trasfer a sigificat portio of the burde of coductig the evidetiary proceedigs from the court to the parties themselves. However, the chage may also hypothetically lead to a battle of experts, i which the parties will submit cotradictory expert evidece, which i tur may make the crimial proceedigs more expesive. The resposibility for assessig ay expert evidece will remai with the court. Prosecutios Polish eforcemet authorities have recetly show more iterest i the eforcemet of corporate crimial liability, ad it seems probable that the reforms to the Corporate Liability Act will result i it beig applied more frequetly i future. I recet press releases the Cetral Ati-Corruptio Bureau (the Polish ati-corruptio authority) said that i light of curret teder corruptio ivestigatios they wat to make use of provisios i the Corporate Liability Act o pealties ad a ba o takig part i public teders. To this ed, the Cetral Ati- Corruptio Bureau is ow workig together with the Public Prosecutor s Geeral Office o improvig eforcemet of the Corporate Liability Act. I April 2014 police authorities cofirmed that 13 people had bee charged i coectio with allegatios that doctors were bribed to promote a GlaxoSmithKlie drug datig from 2010 to Several idividual executives employed by Novartis pleaded guilty i October 2014 to charges that they had give a bribe (i the form of a trip worth more tha USD 1,000) i exchage for supportig the sale of a particular drug. I October 2014, Polish prosecutors said they had charged five people i relatio to cotracts give to Alstom Kosal for the delivery of subway cars ad tramways i Warsaw. Ehaced cooperatio by Polish ati-corruptio authorities with foreig eforcemet authorities Polish ati-corruptio authorities have started to co-operate much more frequetly with foreig eforcemet authorities, specifically U.S. agecies (i particular, the U.S. Federal Bureau of Ivestigatio, the U.S. Departmet of Justice ad the U.S. Securities Exchage Commissio). This cooperatio betwee eforcemet authorities represets a totally ew level of cooperatio i crimial matters. O the oe had, Polish authorities are providig U.S. agecies with fidigs ad documets from ivestigatios coducted i Polad ad with legal assistace o crimial matters. There are cases i which, based o Polish ivestigatios limited i scope, the U.S. authorities have started coductig substatially broader ivestigatios. O the other had it is more ad more commo for U.S. eforcemet agecies to provide Polish authorities with support icludig materials ad evidece from U.S. ivestigatios, based o which the Polish authorities start or expad ivestigatios i Polad. There is also a rapid growth of compliace culture i Polad. There are multiple compliace evets ad cofereces each moth. The Warsaw Stock Exchage promotes compliace i its best practices for listed compaies. BACK TO MAP Clifford Chace,

16 16 Ati-Bribery ad Corruptio Review Romaia Chages to legislatio A bill has bee proposed which would amed the Code of Crimial Procedure so that the suspects of o-violet crimes such as abuse of office, ifluece peddlig or bribery caot be take ito pre-trial detetio. The bill has received a egative opiio from the Govermet, but the Huma Rights Committee has issued a positive opiio. Chages are also proposed to the Crimial Code i coectio with bribery ad corruptio offeces. The chages would mea that a perso must cooperate with the prosecutors i relatio to bribery ad ifluece peddlig charges withi six moths i order to avoid crimial liability. There is o time limitatio i the curret legislatio. Prosecutios The Natioal Ati-corruptio Directorate (DNA), which focuses o high ad medium level corruptio, ad the body which is resposible for combatig orgaised crime ad terrorism (Direcția de Ivestigare a Ifracțiuilor de Crimialitate Orgaizată și Terorism București, or DIICOT) have both published recet reports highlightig the sigificat icrease i the umber of crimial cases ivolvig high rakig officials, miisters, politicias ad ifluetial busiessma (from sectors such as IT, the media, costructio ad real estate). A umber of judges ad prosecutors icludig some from the High Court of Cassatio ad Justice (the highest court i Romaia) have also bee ivestigated ad/or set to trial. DNA reported they have set to trial 12 digitaries, 330 civil servats, 35 magistrate (judges ad prosecutors) i 2014, ad that there had bee a umber of covictios of very seior figures, icludig Romaia s former Prime Miister, Adria Nastase, as well as two govermet Miisters, four Deputies ad oe Seator. Ideed, the Chief prosecutor of DIICOT was also set to trial o corruptio charges earlier this year. Parliametary immuity criticised I a recet meetig of the Europea Parliamet s Committee o Budgetary Cotrol, Romaia s ati-corruptio efforts were described as impressive, but Europea Committee Secretary-Geeral Catherie Day stressed the eed to cotiue efforts i order to cosolidate the results obtaied so far, particularly i combatig corruptio at lower levels. At the hearig (atteded by DNA Chief Prosecutor Laura Codruta Kovesi ad Justice Miister Robert Cazaciuc) it was suggested that Romaia Members or Parliamet have bee blockig crimial prosecutios of state officials ad that this practice must be coutered by implemetig the Veice Commissio s recommedatios o Parliametary immuity. The view that Parliamet is blockig some crimial ivestigatios is shared by some i Romaia. This may be the result of cofusio arisig as a result of the rulig o a pre-trial detetio agaist officials. Nevertheless, give the very public ature of the criticisms, it is likely that the curret approach to parliametary immuity will be revised. Furthermore, it has bee suggested that Romaia s fight agaist corruptio has bee so itese that, as a uiteded cosequece, it is affectig foreig ivestmets as officials seek to avoid approvig projects i case they become the ext target of the ivestigators. The private busiess eviromet has also bee affected as some of the most successful ad ifluetial busiessme from various local idustries (such as costructio, IT ad the media) are either ivestigated or covicted for corruptio related offeces. DNA s recet ethusiasm was criticised by the former presidet, Traia Băsescu, who said that overly close cooperatio betwee the High Court ad the DNA will destroy public trust i the impartiality of the judicial system. A former miister close to the former presidet s political party has bee held i pre-trial detetio for almost six moths, o charges of corruptio offeces icludig bribery, abuse of ifluece ad moey lauderig. BACK TO MAP Clifford Chace,

17 Ati-Bribery ad Corruptio Review 17 Russia Chages to legislatio With effect from 1 Jauary 2015, Federal law No. 273-FZ O prevetig corruptio (the Ati-Corruptio Law) was ameded to prohibit specified idividuals, icludig federal ad regioal govermetal officials, officials of the Russia Cetral Bak ad officers of public corporatios ad other state-owed orgaisatios, from opeig or maitaiig foreig bak accouts, keepig cash or valuables i foreig baks or owig foreig fiacial istrumets. The prohibitio does ot apply to govermetal officials statioed abroad. I March 2015, a draft law o the crimial liability of legal etities was submitted to the Russia State Duma. The draft law cotemplates (for the first time) the impositio of crimial liability o compaies ad orgaisatios (icludig both Russia ad iteratioal compaies ad orgaisatios) for, iter alia, bribery-related offeces. This would be a ew developmet because historically, oly atural persos ca be subject to crimial liability uder Russia law, while legal etities are istead subject to admiistrative liability. Uder the draft law, pealties for bribery-related offeces could iclude fies, the deprivatio of liceces, quotas, prefereces or privileges, the deprivatio of the right to egage i certai activities, a ba o ay activities withi the Russia Federatio ad/or compulsory liquidatio. I February 2015 a draft law o the protectio of persos reportig corruptio offeces was also aouced by the Miistry of Labour ad Social Protectio of the Russia Federatio. At the time of writig, the draft law is uder the process of review by a idepedet ati-corruptio expert ad has ot yet bee submitted to the Russia State Duma. The draft law is aimed at protectig persos who report corruptio offeces ad ecouragig them to come forward by protectig their cofidetiality, protectig them from ay uauthorised dismissal, providig them with moetary remueratio ad/or protectig their relatives. I April 2014 the Presidet siged a decree O the Natioal Ati-Corruptio Pla for (the Decree). The Decree requires state authorities to adopt aticorruptio plas, take measures to esure compliace with the Ati-Corruptio Law, provide for restrictios o receivig gifts, develop guidelies o how officials should disclose their assets ad icome ad review all ati-corruptio measures o a ogoig basis. The Decree also requires the Geeral Prosecutor s Office to take measures to improve the detectio of bribery by legal etities (Article of the Code of Admiistrative Offeces) ad provides for the Govermet to submit proposals o extedig the list of legal etities that sets out those legal etities whose beeficial owers must be publicly disclosed. I compliace with the Decree, state bodies have adopted ati-corruptio plas. Specifically, o 31 July 2014, the Federal Ati-moopoly Service of the Russia Federatio ordered its officials to report i future ay gifts received i coectio with certai protocol evets, busiess trips ad other official evets. I additio, o 4 July 2014, a ati-corruptio pla was adopted by the Federal Tax Service. Prosecutios Accordig to publicly available iformatio, 4,845 idividuals pleaded guilty i 2014 to givig a bribe ad 1,760 idividuals were covicted for receivig a bribe. The iitiatio of admiistrative proceedigs agaist legal etities for bribery-related offeces remais limited i Russia. I geeral, the Russia courts ted to impose admiistrative liability for bribery oly o small ad medium-sized etities. We are ot aware of ay admiistrative cases i which large corporatios were ivolved. Ati-Corruptio Coucil At a meetig of the Presidium of the Ati-Corruptio Coucil o 24 April 2015, the Geeral Prosecutor, Yuri Chaika, preseted a report statig, amog other thigs, that the amout of moey that has bee volutarily repaid by those ivolved i bribery offeces i 2014 amouted to RUB 2.5 billio (curretly approximately EUR 43 millio or USD 47 millio), whereas RUB 23.5 billio (curretly approximately EUR 410 millio or USD 450 millio) remais to be collected. The Miister of Justice, Alexader Koovalov, also declared that icreasig ati-corruptio educatio amog citizes is oe of the mai objectives of the Natioal Ati-Corruptio Pla for 2014 to BACK TO MAP Clifford Chace,

18 18 Ati-Bribery ad Corruptio Review Saudi Arabia Prosecutios I December 2014, Alstom agreed to plead guilty ad pay a USD 772 millio pealty followig a ivestigatio by the U.S. Justice Departmet ito Alstom s alleged bribery scheme i Saudi Arabia, Egypt, Taiwa, Bahamas ad Idoesia. Bloomberg reported that Alstom wo several billios of dollars worth of busiess i Saudi Arabia by makig at least USD 49 millio i illegal paymets i part through middleme. Alstom has allegedly bribed half a doze cosultats a decade ago accordig to prosecutors. It was also reported that Alstom collected details o officials of Saudi Electricity Compay (SEC) ad idetified decisiomakers ad prepared a actio pla with commets o officials ( hoest reputatio, kow to deal, etc.). A further charge is that Alstom allegedly paid USD 4 millio i bribes to a executive at SEC ad a close relative i order to secure the official s support for teders. Alstom also reportedly made USD 2.2 millio i doatios to a US-based Islamic educatio foudatio associated with the Saudi official. I relatio to the floodig of a certai eighbourhood of Jeddah i 2009 where residetial buildigs had bee permitted to be built through bribery, a former mayor ad several busiessme were seteced to jail (ad to pay fies) for bribig the mayor. The former mayor was seteced to eight years i jail ad to pay a fie of SAR 1 millio (curretly approximately EUR 243,000 or USD 267,000) for acceptig a bribe. The busiessme, two of whom were foreigers (oe from Jorda ad oe from Syria) received seteces ragig from oe to five years i jail ad fies from SAR 1 millio (curretly approximately EUR 243,000 or USD 267,000) to SAR 100,000 (curretly approximately EUR 24,300 or USD 26,700). BACK TO MAP Clifford Chace,

19 Ati-Bribery ad Corruptio Review 19 Slovak Republic Chages to legislatio O 11 March 2015, the Slovak Govermet submitted a draft bill amedig the Slovak Crimial Code to the Slovak Parliamet. The bill addresses, amog other thigs, shortcomigs idetified i the OECD report (see below). It also broades the defiitio of a foreig public official, regardless of whether such perso is actig withi or outside of her/his authorised competece, ad seeks to simplify the legal regulatio of sactios for crimial offeces of corruptio i the cases of foreig public officials. The proposed effective date is set as 1 August At the ed of 2013, the Slovak Miistry of Justice published a bill o the crimial liability of legal etities. The bill, curretly at the level of the Slovak Govermet i the legislative process, aims to itroduce direct crimial liability of legal etities for a limited umber of specified crimial offeces (icludig corruptio offeces). The proposed effective date is set as 1 ; however, it is highly ulikely that the bill will eter ito force at that date. It is proposed that legal etities would icur crimial liability uder similar circumstaces to those uder the existig cocept of quasi-crimial liability. The bill does ot provide for ay specific defeces i coectio with the crimial liability of legal etities. The sactios would iclude fies, the cofiscatio of assets or property, beig debarred from public procuremet (for up to te years), ad a ba o ecoomic activities (for up to te years or for a idefiite period of time). Fially, as from 1 Jauary 2015, legislatio o measures coected with the reportig of ati-social behaviour (the Slovak Whistleblower Protectio Act) has become effective. The Slovak Whistleblower Protectio Act aims to fiacially motivate idividuals to report ay ati-social behaviour (icludig crimial offeces of corruptio) they come across i coectio with their employmet, positio or office. These idividuals will be protected from the potetial egative cosequeces of makig a report i good faith (e.g. termiatio of their employmet cotract without the prior coset of the local labour authorities) ad will, i certai circumstaces, also be rewarded by the Slovak Miistry of Justice, with a sum of up to approximately EUR 19,000. OECD report o ati-bribery published I November 2014, the Orgaisatio for Ecoomic Co-Operatio ad Developmet (OECD) published its latest report o the compliace of the Slovak Republic with its obligatios uder the OECD Covetio o Combatig Bribery of Foreig Public Officials i Iteratioal Busiess Trasactios 10. The OECD Workig Group foud that the Slovak Republic has implemeted the majority of Phase 3 recommedatios made i the OECD s last report o the Slovak Republic i Jue Fully implemeted recommedatios iclude those that address traiig ad awareess eeds for judges, police, prosecutors ad tax ispectors; a icrease of the use of proactive steps for detectig foreig bribery cases by usig various sources icludig mutual legal assistace (MLA) requests by the Slovak Republic; ad takig specific steps to effectively respod to MLA requests from other coutries. The OECD also welcomed iteral ad exteral ati-moey lauderig traiig, as well as materials prepared by both the Natioal Ati-Corruptio Uit ad the Fiacial Itelligece Uit. A ew methodology of detectio ad ivestigatio of corruptio ad related crimial offeces has bee applied by the Natioal Ati-Corruptio Uit from 1 Jauary However, accordig to the 2014 report several key recommedatios remai uimplemeted, icludig a broader defiitio of a foreig public official ad a foreig bribery offece, ad the itroductio of full-fledged crimial liability of legal etities. As metioed above, some of these recommedatios have bee addressed i the course of 2015, i particular by a amedmet to the Slovak Crimial Code which was submitted to the Slovak Parliamet i March 2015 followig more tha oe year of legislative proceedigs. Similarly, a draft Bill o the liability of legal etities is also i the legislative process. The 2014 report also oted the eed for whistleblower protectio which has already bee addressed by the ew Slovak Whistleblower Protectio Act effective as of 1 Jauary 2015 (please see above). BACK TO MAP 10 Slovak Republic: Follow Up to the Phase 3 Report & Recommedatios November 2014, available at: Writte-Follow-up-Report-EN.pdf. Clifford Chace,

20 20 Ati-Bribery ad Corruptio Review Spai Chages to legislatio O 1, Orgaic Law 1/2015, amedig the Peal Code, will come ito force, itroducig a hugely sigificat chage to the cocept of corporate crimial liability i Spaish law. Amog the ew developmets aouced i the Preamble is a techical improvemet i the regulatio of the crimial liability of legal persos desiged to properly determie the cotet of due cotrol, the breach of which provides a basis for crimial liability. This brief aoucemet fails to give a idea of the magitude of the legislative chage that this text, whe eacted as a law, will represet i the sphere of the crimial liability of legal persos. The amedmet goes far beyod properly determiig due cotrol, for example, itroducig express grouds for exemptio from crimial liability for legal persos based o demostratig that the corporatio possesses ad effectively implemets a crime prevetio or compliace programme. Uder the ew law, legal persos will be crimially liable for: (A) offeces committed i their ame or o their behalf, for their direct or idirect beefit, by their legal represetatives or ay persos actig idividually or as members of a body of the legal perso, who are authorised to take decisios o behalf of the legal perso ad hold powers of orgaisatio ad cotrol withi it; ad (B) offeces committed, i the performace of corporate activities ad o behalf ad for the direct or idirect beefit of the same, by persos who, while subject to the authority of the atural persos metioed i the foregoig paragraph, were able to commit the acts due to a serious breach by the former of the duty of cotrol of their activities i view of the particular circumstaces of the case. There is o doubt that the most importat reform is the itroductio, for the first time, of express grouds for exemptio from crimial liability for legal persos based o the demostratio that the corporatio possesses ad effectively implemets a crime prevetio or compliace programme. I the case of offeces metioed i (A) above, the corporate etity will be exempt from crimial liability if it ca show that: prior to the commissio of the offece, the maagemet body adopted ad effectively eforced orgaisatio ad maagemet models that iclude suitable moitorig ad cotrol measures to prevet such offeces (compliace programmes); supervisio of the fuctioig ad fulfilmet of the prevetio model implemeted has bee etrusted to a body of the legal perso with idepedet powers of iitiative ad cotrol (appoitmet of a compliace officer or of a collegiate compliace body), although i compaies which are smaller (i.e., those authorised to file abridged profit ad loss accouts) this fuctio may be performed by the maagemet body; ad there has ot bee a omissio or deficiet performace of the fuctios of moitorig ad cotrol o the part of the compliace body. If these circumstaces ca oly be partially prove, this may be take ito accout for the purposes of mitigatig the pealty. The compliace programme must: (i) idetify the circumstaces i which offeces may be committed; (ii) establish protocols or procedures to address the risks idetified; (iii) have appropriate fiacial cotrols to prevet the commissio of offeces; (iv) impose a obligatio to report possible risks ad breaches to the body resposible for overseeig the fuctioig of the compliace program; (v) establish a discipliary system that duly pealises breaches of the programme; ad (vi) iclude regular review of the programme, ad revisios to respod to either sigificat breaches of its provisios, or to chages i the orgaisatio, the cotrol structure or i the activities performed. I the case of offeces referred to i (B), a corporate etity will be exempt from crimial liability if, prior to the commissio of the offece, it adopted ad effectively eforced a system of orgaisatio, maagemet ad cotrol appropriate for the prevetio of offeces of the kid committed, i lie with the requiremets set out above. This approach is directly ispired by Italia Legislative Decree 231/2011, of 8 Jue, ad is also broadly similar to the guidelies cotaied i The Bribery Act 2010 Guidace about procedures which relevat commercial orgaizatios ca put ito place to prevet persos associated with them from bribig, published by the UK Miistry of Justice i March 2011 (which cotais the famous six priciples). Clifford Chace,