ISBN 978-92-64-02740-4
Corruption: A Glossary of International Standards in Criminal Law
© OECD 2008
69
8. SPECIAL INVESTIGATIVE TECHNIQUES AND BANK SECRECY
CORRUPTION: A GLOSSARY OF INTERNATIONAL STANDARDS IN CRIMINAL LAW – ISBN 978-92-64-02740-4 – © OECD 2008
70
OECD Convention Council of Europe Convention UN Convention Not covered Article 23:
1. Each Party shall adopt such legislative and other measures as may be necessary, including those permitting the use of special investigative techniques, in accordance with national law, to enable it to facilitate the gathering of evidence related to criminal offences established in accordance with Article 2 to 14 of this Convention and to identify, trace, freeze and seize instrumentalities and proceeds of corruption, or property the value of which corresponds to such proceeds, liable to measures set out in accordance with paragraph 3 of Article 19 of this Convention.
2. Each Party shall adopt such legislative and other measures as may be necessary to empower its courts or other competent authorities to order that bank, financial or commercial records be made available or be seized in order to carry out the actions referred to in paragraph 1 of this article.
3. Bank secrecy shall not be an obstacle to measures provided for in paragraphs 1 and 2 of this article.
Article 2:
(f) “Freezing” or “seizure” shall mean temporarily prohibiting the transfer, conversion, disposition or movement of property or temporarily assuming custody or control of property on the basis of an order issued by a court or other competent authority;
(i) “Controlled delivery” shall mean the technique of allowing illicit or suspect consignments to pass out of, through or into the territory of one or more States, with the knowledge and under the supervision of their competent authorities, with a view to the investigation of an offence and the identification of persons involved in the commission of the offence.
Article 31:
2. Each State Party shall take such measures as may be necessary to enable the identification, tracing, freezing or seizure of any [proceeds, property, equipment or other instrumentalities of crime] for the purpose of eventual confiscation.
4. If such proceeds of crime have been transformed or converted, in part or in full, into other property, such property shall be liable to the measures referred to in this article instead of the proceeds.
6. Income or other benefits derived from such proceeds of crime, from property into which such proceeds of crime have been transformed or converted or from property with which such proceeds of crime have been intermingled shall also be liable to the measures referred to in this article, in the same manner and to the same extent as proceeds of crime.
7. For the purpose of this article and article 55 of this Convention, each State Party shall empower its courts or other competent authorities to order that bank, financial or commercial records be made available or seized. A State Party shall not decline to act under the provisions of this paragraph on the ground of bank secrecy.
Article 40: Each State Party shall ensure that, in the case of domestic criminal investigations of offences established in accordance with this Convention, there are appropriate mechanisms available within its domestic legal system to overcome obstacles that may arise out of the application of bank secrecy laws.
Article 50.1: In order to combat corruption effectively, each State Party shall, to the extent permitted by the basic principles of its domestic legal system and in accordance with the conditions prescribed by its domestic law, take such measures as may be necessary, within its means, to allow for the appropriate use by its competent authorities of controlled delivery and, where it deems appropriate, other special investigative techniques, such as electronic or other forms ofsurveillance and undercover operations, within its territory, and to allow for the admissibility in court of evidence derived therefrom.
8. SPECIAL INVESTIGATIVE TECHNIQUES AND BANK SECRECY
CORRUPTION: A GLOSSARY OF INTERNATIONAL STANDARDS IN CRIMINAL LAW – ISBN 978-92-64-02740-4 – © OECD 2008 71 Corruption can be very difficult to detect and investigate. This is partly because corruption is often the result of consensual acts between the parties and is hence secretive by nature. Increasingly, corruption is also committed by sophisticated criminal or business organisations that are difficult to penetrate.
To overcome these difficulties, the Council of Europe and UN Conventions require law enforcement officials to have special investigative techniques that are compatible with the parties’ domestic law. These techniques may include the use of undercover operations that allow a law enforcement agent to infiltrate a criminal organisation to gather evidence. They may also include the use of controlled deliveries, e.g.when an undercover operator delivers a bribe to a corrupt official. When investigating a close-knit group is difficult for an outsider to penetrate or survey, or where physical infiltration is unacceptably risky, law enforcement may need resort to electronic surveillance (e.g.interception of communications, listening devices, hidden cameras etc.).1 Given its intrusiveness, electronic surveillance is generally subject to strict judicial control and numerous statutory safeguards to prevent abuse.
Another feature of corruption crimes is that they often have complex financial aspects. Bribes and the proceeds of corruption are often hidden away or laundered through complicated financial channels and vehicles. To properly investigate such crimes, law enforcement must have full access to bank, financial and commercial records. In particular, banks must not be allowed to invoke bank secrecy laws to frustrate the efforts of law enforcement.2 The relevant legal frameworks should provide a clear, efficient mechanism for law enforcement to obtain search warrants (if necessary) and for piercing bank secrecy. This may include specifying the standard of proof for lifting secrecy, deadlines on courts to decide whether to lift secrecy, and the procedure for appealing judicial decisions.
Once secrecy is overcome, law enforcement may need expertise in information technology and forensic accounting to properly analyse the evidence.
The complex financial aspects of many corruption crimes also give rise to the need for tools to identify, trace, freeze and seize the proceeds and instrumentalities of corruption. These measures are essential for preserving the proceeds of corruption before a court orders confiscation. To avoid jeopardising an on-going investigation, the courts in some countries may prohibit the financial institution where an account is frozen from informing the account-holder of the freezing order. The courts in some jurisdictions may also freeze an account but allow small payments to be made from the account (e.g.for daily bill payments).
Notes
1. See also Explanatory Report, Council of Europe Convention, para. 114.
2. See also Legislative Guide for the Implementation of the UN Convention, paras.
421 and 487-488.
ISBN 978-92-64-02740-4
Corruption: A Glossary of International Standards in Criminal Law
© OECD 2008
73