The following bodies are in charge of enforcing anti-corruption laws in Australia: the Australian Federal Police (AFP) as the lead investigator for any alleged breaches of Commonwealth legislation; the CDPP, in his capacity as an independent statutory prosecutor (who only prosecutes, not investigates); and In terms of state laws, each Australian state and territory’s state police forces, as well as, where applicable, a state director of public prosecutions. AUSTRAC, the financial transaction reporting agency that enforces Australia’s anti-money laundering and counter-terrorism financing laws, works closely with the AFP, the Australian Criminal Intelligence Commission (ACIC) (formerly the Australian Crime Commission) and the Australian Securities and Investment Commission as the corporate regulator. The powers of the AFP and each state’s and territory’s police are the normal broad powers of police authority to investigate and charge potential criminal offenses. The ACIC’s powers are broad and covert, and they must be employed within the bounds of the law. The AFP hosts the Fraud and Anti-Corruption Centre (FACC), which oversees bribery and corruption referrals and investigations. The FACC brings together officials from ten government institutions to present a coordinated response to major and complicated fraud and corruption. Each referral is reviewed by the FACC’s Foreign Bribery Panel of Experts before proceeding to an inquiry. The FACC also works with the Criminal Assets Confiscation Taskforce, which is in charge of confiscating assets seized as a result of fraud and corruption. Belgium is a country in Europe. Corruption offenses are investigated and prosecuted by local public prosecutors. In addition, the Federal Prosecutor’s Office has a magistrate who is in charge of dealing with cross-district cases and large-scale corruption investigations. The public prosecutor is aided in corruption investigations by the Central Office for the Repression of Corruption, a special division of the federal police forces. This office, which has specific skills and instruments to investigate corruption, is part of the Federal Judicial Police’s Central Directorate for Combating Serious and Organized Crime.
Regulatory enforcement: The AFA is a national agency with strong administrative powers that is led by a magistrate and is supervised jointly by the Ministries of Finance and Justice. The AFA also contains an Enforcement Committee, which has the authority to apply severe sanctions if the Sapin II Act is not followed. The AFA has the following powers in particular: Inspections: The AFA may inspect corporate and public sector entities (off-site and on-site) to assess the adequacy of their anti-corruption compliance programs. In order to accomplish this, the AFA has the authority, if considered essential for the inspection, to: assemble all relevant data and documents; and Any person can be interviewed. Issue warnings: The AFA’s director may issue a warning to the inspected entity’s representatives in the form of a letter in which the entity is invited to implement the recommendations contained in the final inspection report in order to comply with its legal obligations within a specified timeframe. Notify the public prosecutor: The AFA may notify the competent public prosecutor if it becomes aware of facts that are likely to qualify as criminal offenses. If the AFA believes that an entity has failed to develop an appropriate anti-corruption compliance program, the director of that entity may alert the AFA Enforcement Committee. Criminal prosecution: The public prosecutor has the authority to prosecute those who commit acts of corruption. Public prosecutors are accompanied by professionals from other investigation services, such as the judicial police and, in particular, the Central Office for the Fight Against Corruption and Financial and Tax Offenses, through the course of an investigation (OCFLCIFF). Prosecutors may even contact investigative magistrates for thorough investigations if necessary. Acts of corruption may be prosecuted by a public prosecutor from one of the three types of prosecution offices: The Financial Prosecution Office (PNF) is a government agency that prosecutes financial crimes. prosecutors’ offices in each territory; and Interregional specialized courts’ prosecution offices (JIRS). The public prosecutor has a number of powers, including the ability to perform on-site searches, confiscate objects, question witnesses, and hear suspects. The public prosecutor may also authorize police personnel to utilize specific investigation processes similar to those employed in the fight against organized crime in cases of corruption. Infiltration, pseudonymous investigations, telephone conversation interception, and the use of International Mobile Subscriber Identity Catchers are some of the more intrusive investigative approaches. Furthermore, the Sapin II Act allows public prosecutors to propose that a company under investigation for corruption or related offenses enter into a settlement agreement (‘Convention Judiciaire d’Intérêt Public’ – CJIP), similar to the deferred prosecution agreements used in the United States and the United Kingdom. Because the settlement agreement is not considered a conviction, it is not recorded in the Criminal Record Bulletin No. 1. The settlement agreement, however, is available on the AFA’s website. Corruption offenses must be brought to the attention of the criminal justice system. The 32nd Chamber of the Paris Court of First Instance has exclusive jurisdiction over certain cases at first instance when the prosecution is handled by the PNF. Various sanctions, such as fines and prison sentences, as well as additional punishments, may be imposed by criminal courts. The Sapin II Act added a new penalty for any legal entity found guilty of corruption or influence peddling. Criminal courts may impose a ‘compliance program penalty’ (‘Peine de Programme de Mise en Conformité’) on such entities, compelling them to comply with the obligation to adopt an anti-corruption compliance program for up to five years, under the supervision of the AFA. This penalty can be imposed on all commercial and public legal entities, regardless of their size, form, field of business, or whether they are registered in France or abroad.
The execution of anti-corruption legislation is the responsibility of law enforcement and the courts. Dedicated public prosecutor’s offices for white collar crime have been established in all German states, with special departments set up to combat corruption. There are also specialized public prosecutor’s offices for corruption offenses in various states. The public prosecutor’s office is required to intervene if corruption is suspected at the onset. Section 299 of the Penal Code provides an exception in this regard. Corruption in commercial transactions requires a formal criminal complaint because this clause governs a relevant offence on complaint. The public prosecutor’s office will press charges if the suspicion of corruption is substantiated. If the culpable offense is confirmed, the court will sentence the offender to a fine or imprisonment. However, the public prosecutor’s office may waive the prosecution under certain circumstances (see Sections 153 and following of the Code of Criminal Procedure), and the public prosecutor’s office may order the defendant to pay a fine if the defendant is suspended under Section 153a(1) of the Code of Criminal Procedure. Sections 73 and following of the Penal Code allows for the confiscation of the proceeds of the offence to guarantee that they are not worthwhile for criminals. The court has ordered the confiscation of the property. Companies in Germany can only be fined under Section 30 of the Act on Administrative Offenses because there is no corporate criminal law. Prosecution is the responsibility of the public prosecutor’s office (see Section 131(3) of the Act on Administrative Offenses). Only a fine can be levied on legal entities, of course. The secondary sanction of confiscation, which is recognized from criminal law (Sections 22 and subsequent of the Act on Administrative Offenses), may be ordered instead or in addition. Ireland is a country in Europe. The major organization entrusted with investigating bribery and corruption in Ireland is the Garda National Economic Crime Bureau. The Office of the Director of Public Prosecutions is in charge of prosecuting any such bribery and corruption offenses. The Office of the Director of Corporate Enforcement (ODCE) also monitors and prosecutes corporate law infractions; however, this is about to change. The Irish government is presently considering the Companies (Corporate Enforcement Authority) Bill 2018. If the law is passed, the ODCE will be replaced by the Corporate Enforcement Authority, which will be a separate statutory entity. The authority will play a bigger role in anti-bribery and anti-corruption enforcement, as well as in the investigation of corruption cases.
In Switzerland, the federal framework creates a divide between cantonal and federal enforcement authorities. The Office of the Attorney General (OAG, www.bundesanwaltschaft.ch/mpc/en/home.html) enforces the following federal laws: felony offenses (Articles 23 lit a and j of the Swiss Criminal Procedure Code (SCPC)); and felony offenses (Articles 23 lit a and j of the Swiss Criminal Procedure Code (SCPC)). situations in which the crimes were perpetrated to a large part overseas or in two or more cantons. Cantonal prosecutors are in charge of other inquiries. The place where a specific crime was committed decides which cantonal prosecutor’s office has jurisdiction, according to the general norm laid forth in Article 31 of the SCPC. It is also conceivable for the OAG to delegate authority to a cantonal prosecutor’s office. The SCPC specifies the prosecutorial powers of the Swiss authorities. Prosecutors may use coercive tactics such as holding defendants in custody or monitoring bank accounts. If no exceptions to the rule apply, such as the right to keep silent (nemo tenetur) or another privilege, such as professional secrecy, the individual or corporation is required to participate by disclosing papers and/or information. Failure to comply is punishable under Article 292 of the SCC, which entails a fine and possible procedural penalties for the perpetrator. Prosecutors will investigate the facts and file charges against the suspect. The Swiss Financial Market Supervisory Authority (FINMA, www.finma.ch/en/) – that is, the Swiss regulator of financial institutions – is in charge of the regulatory aspects if financial intermediaries are engaged. FINMA has the authority to probe misbehavior independently of state prosecutors’ investigations. Audits and internal independent investigations are tools for investigations, and administrative consequences can include reprimands or even the loss of a financial intermediary’s license.
The SFO, the National Crime Agency (NCA), the Financial Conduct Authority (FCA), the City of London Police, and regional police forces can all enforce the Bribery Act. A bribery prosecution can be authorized by the director of the SFO. The consent of the DPP is required for any other agency. The SFO is England and Wales’ premier body for investigating and prosecuting corruption matters both at home and abroad. Under Section 2 of the Criminal Justice Act, it has a number of special authorities. The SFO can compel anybody or any organization to supply it with information or documents it deems are important to its inquiry under Section 2. Lawyers have also been advised by the SFO that they do not have the right to accompany a client who is compelled to attend an interview under Section 2. While it is typical for a lawyer to be permitted to attend a Section 2 interview with a client, a lawyer who wishes to do so must first justify why he or she should be permitted to do so, and may even be required to agree to certain limits during the interview. Pre-interview materials are frequently provided, and the interview cannot be used against the subject in future criminal trials unless it is for Section 2 enforcement. The powers of Section 2 notifications now extend outside UK borders, thanks to the High Court’s ruling in KBR v SFO (2018). (see question 2.8). Although the SFO promotes self-reporting of bribery and corruption, it has stressed that doing so does not guarantee that a prosecution would not be pursued – and that the company’s accusation of wrongdoing will not be taken at face value. Deferred prosecution agreements (DPAs) are now available to the SFO. A DPA is an agreement signed (under the supervision of a court) between a prosecutor and an organization that could be prosecuted under Schedule 17 of the Crime and Courts Act 2013. It allows for the suspension of a prosecution for a defined length of time if the organization agrees to meet specific conditions and admits to the criminal behavior. The prosecution will not proceed if the organization meets the conditions; nevertheless, if it does not fulfill the conditions, it will be prosecuted. The UK’s anti-money laundering framework necessitates reporting to the National Crime Agency (NCA) and applies extremely severely to the regulated sector. Any suspect of bribery should be reported to the National Crime Agency (NCA). The International Corruption Unit of the NCA was created expressly to receive bribery and corruption reports. Its primary mission is to investigate money laundering in the UK as a result of high-ranking officials’ abroad corruption, bribery involving UK-based companies or persons with an international aspect, and cross-border bribery with a link to the UK. It also tracks down and recovers foreign corruption proceeds. The NCA is a member of the International Anti-Corruption Coordination Centre, which brings together anti-corruption experts from all around the world to fight corruption. It’s also a member of the International Foreign Bribery Taskforce, which brings together bribery investigators from the UK, Australia, Canada, and the US to exchange their knowledge. The following agencies are in charge of enforcing the anti-bribery laws: the Crown Prosecution Service (CPS), which investigates and prosecutes cases of corruption in England, Wales, and abroad; The Financial Conduct Authority (FCA) supervises the financial services industry in the United Kingdom, with powers granted by the Financial Services and Markets Act 2000. It has imposed large fines on companies for violating its principles, such as when bribery and corruption occurred or when a company’s systems and controls were inadequate to deal with the threat of corruption; and it has imposed large fines on companies for violating its principles, such as when bribery and corruption occurred or when a company’s systems and controls were inadequate to deal with the threat of corruption. The National Economic Crime Centre is a non-profit organization dedicated to combating economic crime. On the 31st of October, 2018, it went live. It collaborates with the various prosecuting organizations to coordinate the UK’s national response against economic crime.
The following authorities have jurisdiction over bribery and corruption: the anti-corruption unit (known as the Abu Dhabi Accountability Authority), which applies to public sector organisations and was established in 2015 by Abu Dhabi Law 14/2008. the State Audit Institution, which also works with public-sector organizations; the Central Bank of the United Arab Emirates’ Anti-Money Laundering and Suspicious Cases Unit; the United Arab Emirates’ police forces (jurisdiction limited to each emirate); and The Dubai Financial Services Authority, which is the only free zone with its own authority, is part of the Dubai International Financial Centre (apart from the Abu Dhabi Global Market, which is still relatively new and is thus not dealt with here). The Dubai Economic Security Centre (DESC) has also been established, with an emphasis on bribery and corruption. The DESC will have a long list of skills, including: drafting and approving legislation to govern Dubai’s financial and economic issues; producing and publishing quarterly financial and economic reports and statistics on Dubai’s financial and economic situation; coordinating with the judicial authority on matters that DESC is interested in, including transnational crimes; Organizing and participating in conferences and seminars, as well as collaborating with relevant regional and international organizations to share economic security expertise, knowledge, and information; combatting corruption, fraud, bribery, embezzlement, public property destruction, forgery, counterfeiting, money laundering, financing of terrorism and other unlawful organizations, and other crimes that may be perpetrated in entities under DESC’s authority; monitoring human rights violations and financial issues in Dubai; regulating the trade of currencies, commodities, precious metals, and listed and unlisted securities; and establishing policies and procedures to prevent encounters with terrorists or anyone associated to them. DESC has the authority to: request that monies, records, or anything else related to a DESC inquiry be seized by the public prosecutor; liaise with international institutions to get information in the course of an investigation Trade in the stock market has been suspended, and any financial market regulations have been frozen, suspended, or reactivated; and get information about any natural or legal person’s bank account with any relevant entity.
The Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) are the two main federal prosecuting authorities in the United States. The Department of Justice is in charge of criminal prosecutions, while the Securities and Exchange Commission is in charge of civil enforcement activities. A corporation or individual may face parallel investigations by the DOJ and the SEC in matters involving US issuers or their executives, employees, or agents. The DOJ collaborates with an investigating agency, such as the Federal Bureau of Investigation or the Department of Homeland Security, in criminal investigations. The Commodity Futures Trading Commission (CFTC) recently announced an initiative to investigate and hold corporations and individuals responsible for bribery in the commodities industry. The CFTC indicated that commodities businesses that self-report violations of the Commodity Exchange Act involving international corrupt practices could face declinations, and that it will work with the DOJ and SEC to investigate foreign bribery and prosecute foreign corruption offenses (CFTC, Enforcement Advisory, 6 March 2019).