Conference of the States Parties to the United Nations Convention against Corruption

Transcription

1 United Natins CAC/COSP/IRG/I/4/1/Add.60 * Cnference f the States Parties t the United Natins Cnventin against Crruptin Distr.: General 28 July 2017 English Original: Spanish Implementatin Review Grup Resumed eighth sessin Vienna, 7 and 8 Nvember 2017 * Agenda item 2 Review f implementatin f the United Natins Cnventin against Crruptin Cntents Executive summary Nte by the Secretariat Addendum II. Executive summary... 2 Guinea-Bissau... 2 Page * Reissued fr technical reasns n 17 August (E) * *

2 II. Executive summary Guinea-Bissau 1. Intrductin: Overview f the legal and institutinal framewrk f Guinea- Bissau in the cntext f implementatin f the United Natins Cnventin against Crruptin Guinea-Bissau acceded t the Cnventin n 10 September Guinea-Bissau is part f the African Unin, the Ecnmic Cmmunity f West African States (ECOWAS), and the West African Ecnmic and Mnetary Unin (WAEMU). The President f the Republic is the head f State and the Prime Minister is the head f the Gvernment. The Natinal Peple s Assembly (NPA) hlds legislative pwer. Guinea-Bissau has a civil law system; ratified internatinal cnventins are published in the Official Bulletin and have the status f law. The legislatin implementing the Cnventin includes the Criminal Cde (CC), the Criminal Prcedure Cde (CPC), the Unifrm Law n Mney-Laundering (ULML) and Law N. 14/97 n Plitical Functins. Criminal prcedure is based n the accusatry system (art. 42 (5) f the Cnstitutin) and investigatins are led by the Attrney-General s Office. The main institutin tasked with cmbating crruptin is the Supreme Anti- Crruptin Inspectrate. The Natinal Financial Intelligence Prcessing Unit (CENTIF) is respnsible fr cmbating mney-laundering and the financing f terrrism. Reviewing the practical implementatin f the Cnventin prved difficult wing t a lack f case examples and statistics. 2. Chapter III: Criminalizatin and law enfrcement 2.1. Observatins n the implementatin f the articles under review Bribery and trading in influence (arts. 15, 16, 18 and 21) The term public fficial as used in the CC and CPC is nt defined. While the active bribery f fficials is criminalized (art. 248 CC), the ffering f an undue advantage is nt cvered. The authrities cnfirmed that third -party beneficiaries may be persns r entities. The fficial s cnsent r apprval is required fr the indirect cmmissin f the ffence and the fficial must be aware that a benefit is given t a third party. While passive bribery is criminalized (art. 247 CC), benefits fr third parties that are entities are nt cvered, the fficial must be aware f the actins f the intermediary fr the indirect cmmissin f the ffence and the fficial is nt punished when, prir t cmmitting the act, he/she vluntarily repudiates the prmise r ffer r returns the gds. Bribery f freign public fficials and f fficials f public internatinal rganizatins is nt criminalized and nr is bribery in the private sectr. Mney-laundering, cncealment (arts. 23 and 24) Mney-laundering is criminalized (arts. 2 and 3 ULML, based n the WAEMU Unifrm Law). Guinea-Bissau applies an all crimes apprach t mney-laundering. All ffences, including thse cmmitted abrad, are predicate ffences (arts. 1 and 2 ULML). S called self-laundering is criminalized. Cncealment is nt criminalized. 2/12

3 Embezzlement, abuse f functins and illicit enrichment (arts. 17, 19, 20 and 22) Embezzlement and misuse f prperty are criminalized (arts. 249 and 250 CC). Benefits fr entities as third parties are nt cvered and embezzlement is limited t public r private funds r t mvable prperty. Abuse f functins cmmitted by hlders f plitical functins (defined in art. 3 f Law N. 14/97 n Plitical Functins) is criminalized (art. 24 f Law N. 14/97). Undue advantages fr entities as third parties and abuse f functins cmmitted by any ther public fficials are nt criminalized. Illicit enrichment is nt criminalized. Aspects f embezzlement in the private sectr in the case f persns entrusted with the use r administratin f third-party interests, services r assets are criminalized (arts. 170 and 171 CC). Obstructin f justice (art. 25) Guinea-Bissau has nt criminalized bstructin f the giving f testimny r prductin f evidence. Only bstructin f the enfrcement f a final judgment is criminalized (art. 229 CC). The making f threats against a judge by a persn vested with plitical, public, military r plice authrity in rder t prevent the free exercise f the judge s duties is criminalized (art. 228 CC). The use f vilence r serius threats against public fficials, military agents r plice frces t hinder the exercise f their functins r frce them t act against their duties is als punishable (art. 238 CC). Threats made by ther persns against judges, the use f physical frce and threats against fficials nt listed in article 238 CC, and the use f intimidatin t interfere with the exercise f fficial duties f a judge r a justice r law enfrcement fficial, are nt cvered. Liability f legal persns (art. 26) The criminal liability f enterprises and legal persns gverned by private law fr ffences cmmitted with the aim f achieving their wn ends in the implementatin f decisins taken by their bdies has been established (art. 11 (1) CC). The directrs f the bdies f an enterprise, r any persn acting n behalf f a third party, shall be individually liable fr any acts perpetrated as representatives f the entity, when acting in their wn interests r abusing their psitin (art. 11 (2) CC). Criminal liability f legal persns fr mney-laundering (arts. 38 t 42 ULML) and civil and administrative liability (interpreted t include the liability f legal persns) have als been established (art. 84 CC and art. 483 f the Civil Cde). Fines are tripled fr ffences cmmitted by enterprises (art. 54 CC) and enterprises may als be disslved and their assets cnfiscated (art. 55 CC). Participatin and attempt (art. 27) Participatin (arts. 14 t 19 CC and art. 3 ULML) and attempt (art. 28 CC and art. 3 ULML) are criminalized. Preparatin with a view t cmmit ffences relating t crruptin is nt criminalized. Prsecutin, adjudicatin and sanctins; cperatin with law enfrcement authrities (arts. 30 and 37) Sanctins fr ffences relating t crruptin range frm fines t imprisnment fr up t 12 years and take int accunt aggravating and mitigating circumstances (art. 74 (1) CPC). Immunities and jurisdictinal privileges f the President (art. 72 f the Cnstitutin), f the members f the NPA and f the members f the Gvernment (art. 82 f the Cnstitutin) and the prcedures t lift such immunities are regulated by articles 32 t 35 f Law N. 14/97. CAC/COSP/IRG/I/4/1/Add.60 3/12

4 The Attrney-General s Office makes decisins n prsecutin (art. 48 (h) CPC). There are n guidelines n prsecutin. Pretrial detentin is pssible and there are alternatives t such detentin (arts. 152 t 167 CPC and art. 74 ULML). Cnditinal release is pssible but des nt take int accunt the gravity f the ffence (arts. 305 t 307 CPC). Only members f the NPA accused f crruptin can be suspended (by the NPA itself, art. 34 f Law N. 14/97). Neither the reassignment nr the remval f accused fficials is pssible. When their service is terminated, fficials are prhibited frm exercising public functins fr three years (art. 13 f Law N. 9/97). This des nt include hlding ffice in an enterprise wned in whle r in part by the State. The Disciplinary Statute fr Central, Reginal and Lcal Administratin Officials and Agents (Law N. 9/97) sets ut the disciplinary system. It is clarified in article 7, N. 2 that disciplinary and criminal prceedings are independent. N measures have been taken t prmte the scial reintegratin f ffenders. The Curt may rder a special reductin f a penalty when there are mitigating circumstances that significantly attenuate the illegality f the act r the guilt f the agent (art. 71 CC). The authrities cnfirmed that this mitigatin culd be applied t ffenders wh cperate with the authrities. Article 44 ULML als prvides fr reducing the punishment f such ffenders. Guinea-Bissau cannt grant immunity frm prsecutin t ffenders wh cperate with the authrities and has nt taken measures t prtect such persns. N arrangements r agreements in this regard have been entered int at the internatinal level. Prtectin f witnesses and reprting persns (arts. 32 and 33) Witness prtectin measures have nt been established. At the time f the cuntry visit, a draft bill n witness prtectin had been submitted t the NPA. Measures t prtect reprting persns have nt been taken. Freezing, seizing and cnfiscatin; bank secrecy (arts. 31 and 40) The cnfiscatin f the prceeds f crime is regulated by law (art. 83 CC; with respect t mney-laundering, arts. 41 and 42 ULML). Prperty, equipment r ther instrumentalities used r intended fr use in the cmmissin f mney-laundering ffences may be cnfiscated (art. 41 (10) and art. 42 (2) ULML). With respect t ther ffences, such prperty, equipment r ther instrumentalities may nly be cnfiscated in certain circumstances (art. 82 (1) CC). Plice agents may seize and freeze assets in the case f ffences cmmitted in flagrante delict r when there is a strng suspicin that a persn is hiding bjects assciated with a crime r is preparing t evade justice (art. 58 CPC). In ther cases, the freezing and seizure f assets assciated with the ffence r f assets that culd be used as evidence must be authrized by the Attrney-General s Office (art. 141(1) CPC). In the case f mney-laundering, the investigating judge may rder precautinary measures (art. 36 ULML). Seized assets are managed by appinted depsitaries (art. 141 (2) CPC). The management f cnfiscated prperty is nt regulated. Cnfiscatin f prceeds that have been transfrmed r cnverted int ther prperty, and f incme and ther benefits derived frm prceeds f crime r f prperty int which such prceeds were transfrmed r cnverted, is pssible (art. 83 CC and art. 45 ULML). Prceeds f crime intermingled with prperty acquired frm legitimate surces a nd incme r ther benefits derived frm such prceeds are liable t cnfiscatin, up t 4/12

5 the assessed value f the intermingled prceeds, nly in mney-laundering cases (art. 45 ULML). Bank and financial recrds may be cnfiscated by means f a curt rder in cases f mney-laundering (art. 33 (2) ULML). Guinea-Bissau des nt require that an ffender demnstrate the lawful rigin f prperty liable t cnfiscatin. The rights f bna fide third parties are prtected (art. 142 CPC and art. 45 ULML). Bank secrecy cannt be invked in mney-laundering cases (art. 34 ULML). While there are n prcedures established t lift bank secrecy in cases ther than mney-laundering, the authrities cnfirmed that in practice, such lifting was pssible thrugh a curt rder (art Cnstitutin). Statute f limitatins; criminal recrd (arts. 29 and 41) Criminal liability fr crruptin ffences expires within 3 t 15 years after the cmmissin f the ffence (arts. 87 and 88 CC). Evasin f justice by an ffender des nt cnstitute grunds fr suspending the limitatins perid fr prsecutin (art. 93 CC). Previus cnvictins and recidivism may be taken int accunt when sentencing (arts. 67, 68 and 69 CC). In practice, this infrmatin is nt available wing t difficulties encuntered in recrd-keeping. Jurisdictin (art. 42) Guinea-Bissau has established its jurisdictin ver ffences cmmitted in its territry (art. 5 CC and art. 46 ULML) and abard vessels r airplanes (art. 6 CC), ver sme ffences (ther than crruptin ffences) cmmitted against the State (art. 7 CC) and ver ffences cmmitted by r against a natinal, if the perpetratr is lcated in Guinea-Bissau (art. 7 CC). In the latter case, if the perpetratr has n habitual residence in Guinea-Bissau, criminal law applies nly under certain circumstances. Guinea-Bissau has nt established its jurisdictin ver ffences cmmitted abrad by stateless persns wh have their habitual residence in Guinea-Bissau, r ver acts f preparatin carried ut abrad fr the purpse f cmmitting crimes assciated with mney-laundering and cannt crdinate actins with ther States. Cnsequences f acts f crruptin; cmpensatin fr damage (arts. 34 and 35) Cmpensatin fr damage caused by an ffence is bligatry (art. 84 CC), and civil actin may be pursued in rder t btain such cmpensatin (art. 483 Civil Cde and art. 99 (2) f Law N. 2/2012). Specialized authrities and inter-agency crdinatin (arts. 36, 38 and 39) There is n specialized bdy established t cunter crruptin thrugh law enfrcement that fulfils the requirements f article 36 f the Cnventin. The specialized anti-crruptin unit f the judicial plice lacks independence, training and resurces and CENTIF has received very few reprts regarding suspicius transactins. All public fficials are required t reprt crimes f which they becme aware in the exercise r by virtue f their functins (art. 177 (2) CPC). Plice fficers are required t reprt the cmmissin f any ffence (art. 177 (1) CPC). Article 231 CC prvides fr sanctins against any persn wh, being aware f the cmmissin f an ffence in the cntext f public service and f the bligatin t reprt it, fails t d s. While there is n general bligatin fr public fficials t prvide all necessary infrmatin t the investigating and prsecuting authrities, article 6 f the CPC bliges all public authrities t cperate with the curts f justice upn request. CAC/COSP/IRG/I/4/1/Add.60 5/12

6 Suspicius transactins must be reprted t CENTIF (arts. 14 and 26 ULML). The authrities indicated that fewer than 10 suspicius transactin reprts had been received, and that there had been n cnvictins fr mney-laundering. There is a telephne htline fr reprting crime and annymus reprts are accepted Successes and gd practices If cnvicted, the President is remved frm ffice and re-electin is nt pssible (art. 72, para. 3 Cnstitutin) Challenges in implementatin It is recmmended that Guinea-Bissau: Define the term public fficial in accrdance with article 2 f the Cnventin (art. 2 (a)) Cntinue effrts t establish a natinal system f crime statistics disaggregated by ffence, status f the prceeding and utcme Criminalize the ffering f an undue advantage and remve the requirement fr the fficial t give cnsent r apprval fr the indirect cmmissin f the ffence and t be aware f the benefit given t a third party (art. 15 (a)). Als criminalize any undue advantage granted t third parties that are entities, and remve the additinal requirement fr the need t be aware f the actins f the intermediary (art. 15 (b)) Criminalize active bribery and cnsider criminalizing passive bribery f freign public fficials and fficials f public internatinal rganizatins (art. 16) Criminalize benefits prvided t entities as third parties that are derived frm embezzlement and misuse f prperty and extend the scpe f the embezzlement ffence t cver any prperty, public r private funds r any ther thing f value entrusted t the public fficial (art. 17) Cnsider criminalizing active and passive trading in influence, illicit enrichment and active and passive bribery in the private sectr (arts. 18, 20 and 21) Cnsider criminalizing undue advantages prvided t entities as third parties, extending the scpe f the ffence t cver abuse f functins cmmitted by public fficials wh are nt hlders f plitical ffice (art. 19) Cnsider criminalizing embezzlement in the private sectr, including persns wh direct r wrk fr a private sectr entity, making sure that there are n additinal requirements that are nt cntained in the Cnventin (art. 22) Cnsider criminalizing cncealment (art. 24) Criminalize the use f physical frce, threats r intimidatin r the prmise, ffering r giving f an undue advantage t induce false testimny r t interfere in the giving f testimny r the prductin f evidence (art. 25 (a)) Criminalize threats made by any persn against judges, the use f physical frce and threats against fficials nt listed in article 238 CC, and the use f intimidatin t interfere with the exercise f fficial duties by a justice r l aw enfrcement under the Cnventin (art. 25 (b)) Remve the additinal elements cntained in ffences cmmitted with the aim f achieving their wn ends in the implementatin f decisins taken by their bdies (art. 26 (1)) Assess the sanctins fr legal persns with a view t increasing thse sanctins if they are nt fund t be sufficiently effective and dissuasive (art. 26 (3)) Criminalize the preparatin f a crruptin-related ffence (art. 27 (3)) 6/12

7 Extend the limitatins perid fr crruptin-related ffences r prvide fr the suspensin f the statute f limitatins fr prsecutin in the case f evasin f justice (art. 29) Assess whether establishing guidelines n prsecutin wuld help maximize the effectiveness f law enfrcement measures (art. 30 (3)) Take int accunt the gravity f the ffence when cnsidering parle (art. 30 (5)) Cnsider establishing prcedures thrugh which an accused public fficial may be dismissed, suspended (als in cases invlving fficials ther than members f the NPA) r reassigned (art. 30 (6)) Cnsider establishing prcedures fr the disqualificatin f all persns cnvicted f crruptin-related ffences frm hlding public ffice, and frm hlding ffice in an enterprise wned in whle r in part by the State (art. 30 (7)) Endeavur t further prmte the scial reintegratin f ffenders (art. 30 (10) ) Prvide fr the cnfiscatin f instrumentalities used in r destined fr use in ffences ther than mney-laundering, in all cases (art. 31 (b)) Regulate the administratin f cnfiscated prperty (art. 31 (3)) Allw fr the cnfiscatin f prceeds f crime that have been intermingled with prperty acquired frm legitimate surces, and f incme r ther benefits derived frm such intermingled prceeds f crime utside the scpe f applicatin f the ULML, up t the assessed value f the intermingled prceeds (art. 31 (5) and (6)) Allw fr the cnfiscatin f bank, financial and cmmercial recrds in cases ther than thse relating t mney-laundering (art. 31 (7)) Cnsider the pssibility f requiring that an ffender demnstrate the lawful rigin f alleged prceeds f crime r ther prperty liable t cnfiscatin (art. 31 (8)) Adpt measures t prvide effective prtectin in accrdance with the Cnventin fr witnesses and experts, their relatives and ther persns clse t them, apply such measures t victims wh are witnesses, cnsider entering int agreements fr the internatinal relcatin f witnesses and enable the views and cncerns f victims t be presented during criminal prceedings (art. 32) Cnsider establishing measures t prtect reprting persns (art. 33) Establish a specialized bdy t cmbat crruptin thrugh law enfrcement and ensure that the bdy is granted the necessary independence, resurces and training (art. 36) Cnsider granting immunity frm prsecutin t cperating ffenders and prvide fr the prtectin f such persns; Guinea-Bissau may als cnsider cncluding agreements regarding the prtectin f cperating ffenders at the internatinal level (art. 37 (3), (4) and (5)) Strengthen cperatin between public fficials and the investigative and judicial authrities, including by requiring fficials t prvide infrmatin t such authrities upn request (art. 38 (b)) Encurage further cperatin between natinal authrities and the private sectr, especially with regard t the reprting f suspicius transactins (art. 39 (1)) Clarify in its legislatin the prcedure fr lifting bank secrecy (art. 40) Clarify in its legislatin the use f previus cnvictins abrad and cntinue t imprve the recrd-keeping system (art. 41) CAC/COSP/IRG/I/4/1/Add.60 7/12

8 Establish its jurisdictin ver: Offences cmmitted abrad by stateless persns wh have their habitual residence in Guinea-Bissau Preparatry acts cmmitted abrad with a view t the cmmissin f a mney-laundering ffence in Guinea-Bissau Offences cmmitted by r against a natinal if the perpetratr is nt present in Guinea-Bissau All ffences cmmitted against the State (art. 42 (2) (a) t (d)) All ffences cmmitted by a natinal present in its territry if extraditin is denied slely n the grunds f natinality, with n additinal requirements All ffences cmmitted by a freign natinal present in its territry when extraditin is denied, with n additinal requirements (art. 42 (3) and (4)) Cnsult with ther States t crdinate actins (art. 42 (5)) Technical assistance needs identified t imprve implementatin f the Cnventin The fllwing frms f technical assistance wuld be required: Legislative drafting supprt (arts , 24, 37, 38 and 42) On-site assistance by an expert (arts. 18, 38 and 39) Summary f gd practices and lessns learned (arts. 30 and 42) Capacity-building fr: Authrities respnsible fr witness prtectin (art. 32) The private sectr, particularly financial institutins (art. 39) Investigative and judicial authrities (art. 42) Mdel laws (arts. 33, 34 and 36). 3. Chapter IV: Internatinal cperatin 3.1. Observatins n the implementatin f the articles under review Extraditin; transfer f sentenced persns; transfer f criminal prceedings (arts. 44, 45 and 47) Guinea-Bissau has n specific legislatin regarding extraditin, but has cncluded a judicial cperatin agreement with Prtugal (PJCA) and a judicial cnventin with Senegal (SJC). Guinea-Bissau is party t the extraditin cnventin f the cmmunity f Prtuguese-speaking cuntries (CPLP EC), the Judicial Cperatin Agreement between Angla, Cab Verde, Guinea-Bissau, Mzambique and Sa Tme and Principe (JCA A) and the ECOWAS Cnventin n Extraditin (ECOWAS CE). The ULML cntains prvisins relevant t mney-laundering cases. The extraditin f natinals and extraditin fr plitical reasns are nt permitted (arts. 43 and 44 f the Cnstitutin). The term plitical reasns is nt defined. Natinals wh are nt extradited are tried in the natinal curts (art. 5 (1) CPLP EC; art. 10 (2) ECOWAS CE; art. 30 (2) JCA A; art. 47 (3) PJCA; and art. 22 (2) SJC). The Curt f Appeal decides whether extraditin shuld be granted (art. 40 (f) f the Amended Organic Law n Tribunals (AOLT)). Extraditin is cntingent upn the existence f a treaty and is subject t dual criminality; extraditable ffences are thse punishable by a minimum sentence f imprisnment in bth the requesting and the requested State f at least tw years (art. 3 (1) ECOWAS CE, art. 29 (1) JCA A and art. 23 (a) SJC), f mre than ne year 8/12

9 (art. 46 (2) (a) PJCA), r f a maximum duratin f n less than ne year (art. 2 (1) CPLP EC). Nt all crruptin-related ffences satisfy these requirements. Offences that d nt satisfy these requirements d nt fall under the treaties. The authrities cnfirmed that crruptin related-ffences are nt cnsidered plitical ffences. Guinea-Bissau cnsiders the Cnventin t be the legal basis fr extraditin, but has nt infrmed the Secretary-General theref. Extraditin fr related ffences is pssible (art. 3 (2) ECOWAS CE, art. 2 (3) CPLP EC, art. 46 (3) PJCA and art. 29 (2) JCA A). Simplified extraditin prcedures exist (art. 19 CPLP EC, fr mney-laundering and art. 72 ULML). Guinea-Bissau may detain persns sught fr extraditin (art. 40 (f) AOLT; art. 160 CPC; art. 74 ULML; art. 21 CPLP EC; arts. 30 and 31 SJC; art. 35 JCA A; and arts. 62 and 94 PJCA). Freign judgments may be enfrced if the extraditin f natinals fr this purpse is refused and the sentence has been reviewed and upheld by the Supreme Curt f Justice (art. 328 CPC; art. 68 PJCA; art. 20 SJC; and art. 67 ULML). On the basis f reciprcity, freigners enjy the same rights (except fr plitical rights) as citizens f Guinea-Bissau (art. 28 f the Cnstitutin). Extraditin may be refused if Guinea-Bissau has substantial grunds fr believing that a request fr extraditin was made n discriminatry grunds (art. 4 (2) ECOWAS CE; art. 71 (1) (c) PJCA; and arts. 24 and 28 f the Cnstitutin). Cnstitutinal prtectin frm discriminatin is based n neither natinality nr ethnic rigin. Extraditin may nt be refused n the sle grund that the ffence is als cnsidered t invlve fiscal matters. Extraditin may be refused if it is requested fr an ffence cncerning custms, taxes, duties r exchange rates (art. 71 (1) (b) PJCA). The authrities cnfirmed that, in practice, cnsultatins with the requesting State are carried ut befre an extraditin request is refused. Guinea-Bissau cannt transfer sentenced persns. The transfer f criminal prceedings is pssible in mney-laundering cases (art. 47 ULML) and in applicatin f the ECOWAS Cnventin n Mutual Assistance in Criminal Matters (ECOWAS MLA, art. 21). Mutual legal assistance (art. 46) Mutual legal assistance (MLA) is based n bilateral and multilateral instruments (art. 329 CPC), such as the ECOWAS MLA, and the agreements with Angla, Cab Verde, Mzambique, Prtugal, and Sa Tme and Principe. The Cnventin may be used as a legal basis fr mutual legal assistance. Sme agreements require dual criminality fr the prvisin f mutual legal assistance, while thers cnsider the lack f such assistance t be grunds fr refusal (art. 24 JCA A and art. 33 (1) PJCA). Mutual legal assistance may be prvided fr ffences cmmitted by legal persns. Guinea-Bissau may prvide any frm f assistance that wuld be permitted in dmestic prceedings. In practice, Guinea-Bissau may share infrmatin spntaneusly with ther States. A curt rder is required t lift bank secrecy fr mutual legal assistance (art f the Cnstitutin) in cases ther than thse related t mney-laundering (art. 53 ULML). The temprary transfer f detainees is pssible if prvided fr in a treaty (art. 97 PJCA and art. 13 ECOWAS MLA) r in mney-laundering cases (art. 60 ULML). CAC/COSP/IRG/I/4/1/Add.60 9/12

10 Guinea-Bissau des nt have a central authrity fr mutual legal assistance; requests fr such assistance are received thrugh the Internatinal Criminal Plice Organizatin (INTERPOL). The authrities cnfirmed that requests may be received in English, French and Prtuguese. The Secretary-General has nt been ntified f the languages acceptable fr making mutual legal assistance requests. Oral requests are nt accepted. Certain treaties cntain prvisins stipulating the cntents f mutual legal assistance requests (art. 36 PJCA; art. 9 SJC; and art. 5 (1) ECOWAS MLA), and the ULML (art. 54) des s fr mney-laundering cases. Sme treaties als allw the requested State t request additinal infrmatin (art. 36 (5) PJCA and art. 5 (3) ECOWAS MLA). Evidence btained thrugh the hearing f witnesses via videcnference wuld be admissible (art. 113 CPC) but such hearings are impssible in practice wing t infrastructural challenges. In practice, Guinea-Bissau is able t cmply with the principles f specialty and cnfidentiality. Thse principles are als regulated by the ECOWAS MLA (arts. 8 and 9), and article 56 ULML prvides fr the cnfidentiality f mutual legal assistance requests. The grunds fr refusing mutual legal assistance are regulated in certain treaties (art. 55 ULML; art. 34 PJCA; art. 4 ECOWAS MLA; and art. 3 (1) and (2) JCA A). The requirement t cmmunicate thse grunds is als regulated in sme treaties (art. 4 (5) ECOWAS MLA and art. 41 PJCA) and in article 55 ULML. Article 4 (2) ECOWAS MLA establishes that mutual legal assistance cannt be refused n the sle grund that the request is als cnsidered t invlve fiscal matters. In practice and n the basis f the ECOWAS MLA (art. 4 (3) and (4)), the executin f a request can be pstpned if it interferes with an nging investigatin, prsecutin r judicial prceeding. The safe cnduct f persns transferred fr the purpses f mutual legal assistance is regulated in article 59 ULML, article 15 ECOWAS MLA and article 4 SJC. Guinea-Bissau bears the rdinary csts f executing incming mutual legal assistance requests (art. 34 ECOWAS MLA), with the exceptin f the csts f experts and interpreters (arts. 8 and 43 PJCA) r f witnesses (art. 4 (1) JCA A). Law enfrcement cperatin; jint investigatins; special investigative techniques (arts. 48, 49 and 50) The law enfrcement authrities cperate thrugh INTERPOL, the Intergvernmental Actin Grup against Mney Laundering in West Africa (GIABA), ECOWAS, the West African Plice Chiefs Cmmittee and ther rganizatins. Guinea-Bissau cnsiders the Cnventin t be the legal basis fr law enfrcement cperatin. The judicial plice has a memrandum f understanding with Prtugal that facilitates the psting f liaisn fficers. The ULML cntains a prvisin regarding direct internatinal cperatin f judicial r plice authrities (art. 57). CENTIF des nt participate in the Egmnt Grup. Guinea-Bissau lacks the capacity t cperate in matters invlving crruptin-related ffences cmmitted thrugh the use f mdern technlgy. The authrities cnfirmed that jint investigatins may be undertaken by agreement n a case-by-case basis. Special investigative techniques can be used in relatin t cases invlving cntrlled substances, but nt in cases invlving crruptin Successes and gd practices Guinea-Bissau has shared infrmatin spntaneusly with ther States. 10/12

11 3.3. Challenges in implementatin It is recmmended that Guinea-Bissau: Assess whether it wuld be beneficial t adpt cmprehensive legislatin regarding extraditin and mutual legal assistance, ensuring that it cntains all elements set ut in the Cnventin (arts. 44 and 46) Ensure that extraditin may be granted fr all crruptin-related ffences, including by revising the applicable minimum perids f imprisnment (art. 44 (1)) Grant extraditin in the absence f dual criminality (art. 44 (2)) Cnsider all crruptin ffences t be included in extraditin treaties, endeavur t include such ffences as extraditable ffences in future treaties and define the term plitical reasns (art. 44 (4)) Infrm the Secretary-General that it cnsiders the Cnventin a legal basis fr extraditin (art. 44 (6) (a)) Endeavur t expedite extraditin prcedures and t simplify evidentiary requirements utside the scpe f applicatin f the ULML and the CPLP EC (art. 44 (9)) Ensure the fair treatment f persns sught fr extraditin withut impsing the cnditin f reciprcity (art. 44 (14)) Allw the refusal f extraditin requests if there are substantial grunds fr believing that they have been made with the intentin t prsecute r punish a persn n accunt f that persn s natinality r ethnic rigin (art. 44 (15)) Ensure that extraditin is nt refused n the sle grund that the ffence is als cnsidered t invlve fiscal matters (art. 44 (16)) Cnsider entering int agreements t facilitate the transfer f sentenced persns (art. 45) Prvide assistance that des nt invlve cercive actin in the absence f dual criminality; Guinea-Bissau culd als prvide brader assistance in such cases (art. 46 (9)) Facilitate the temprary transfer f detainees in cases utside the scpe f the bilateral treaty with Prtugal, the ECOWAS MLA and the ULML (art. 46 (10) t (12)) Designate a central authrity and ntify the Secretary-General f that designatin and f the languages acceptable fr making mutual legal assistance requests; Guinea-Bissau may wish t accept ral mutual legal assistance requests in urgent circumstances (art. 46 (13) and (14)) Allw fr hearings via videcnference (art. 46 (18)) Outside f the scpe f the applicable treaties and the ULML, adpt prvisins t establish: The cntents f mutual legal assistance requests, the grunds fr refusing such requests and the requirement t justify refusal (art. 46 (15), (21) and (23) That mutual legal assistance may nt be refused slely n the basis that it is cnsidered t invlve fiscal matters (art. 46 (22)) The safe cnduct f witnesses and transferred persns (art. 46 (27)) Bear the rdinary csts f executing a request, including fees fr experts and interpreters and witness expenses, unless therwise agreed (art. 46 (28)) 11/12

12 Cnsider transferring criminal prceedings t anther State, where apprpriate, in cases f ffences ther than mney-laundering r utside the scpe f applicatin f ECOWAS MLA (art. 47) Endeavur t cperate in matters invlving ffences cmmitted thrugh the use f mdern technlgy (art. 48 (3)) Allw fr the use f special investigative techniques, and fr the admissibility f evidence derived therefrm, fr crruptin-related ffences (art. 50 (1)) Cnclude agreements fr the use f such techniques at the internatinal level and, in the absence f such agreements, make decisins n a case-by-case basis, including methds such as intercepting and allwing the gds r funds t cntinue intact r be remved r replaced (art. 50 (2) t (4)) Technical assistance needs identified t imprve implementatin f the Cnventin The fllwing frms f technical assistance wuld be required: Assistance in drafting legislatin (arts. 44, 45 and 46) On-site assistance by an expert (art. 50) Capacity-building fr: Investigative and judicial authrities fr cperatin in criminal matters (arts. 47 and 49) The management f databases and infrmatin-sharing systems (art. 48). 12/12