The Implementation of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and the enforcement of the Corruption of Foreign Public Officials Act.
This is the third Report to Parliament under the Corruption of Foreign Public Officials Act ("the Act"). For more detailed background information on the Act and on the Organisation for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, please see the Second Report to Parliament, located on the Department of Foreign Affairs and International Trade web site.
In May 1997, the OECD Ministerial meeting called for the negotiation of a binding convention to address the bribery of foreign public officials; negotiations for the Convention concluded on November 21, 1997. Canada signed the Convention on December 17, 1997, and ratified the Convention on December 17, 1998, after the Corruption of Foreign Public Officials Act, wich put Canada in compliance with the Convention. Canada's ratification triggered the Convention's entry into force on February 15, 1999, 60 days after the deposit of Canada's instrument of ratification.
To date, 35 states have signed the Convention, including all 34 original members of the OECD Working Group on Bribery in International Business Transactions ("the Working Group"). The Working Group comprises the 30 member states of the OECD and five nonmembers of the OECD: Argentina, Brazil, Bulgaria, Chile, and Slovenia. Slovenia, which joined the Working Group in June 2001 ratified the Convention in September 2001. (Membership in the Working Group is a prerequisite to signing the Convention). 34 signatory states have now ratified the Convention. Because of different constitutional requirements, some of the states that have ratified the Convention have yet to implement it.
The Corruption of Foreign Public Officials Act originally featured three offences: bribing a foreign public official, laundering property and proceeds, and possession of property and proceeds. In addition, the Act makes it possible to prosecute, for example, a conspiracy or an attempt to commit the offences. It also covers aiding and abetting in committing these offences, an intention in common to commit them, and counselling others to commit the offences.
The Act came into force as part of Bill S-21, which also amended other federal laws to combat corruption, notably the Income Tax Act and the Criminal Code.
The offence of bribing a foreign public official was added to the list of offences found in subsection 67.5(1) of the Income Tax Act to deny claiming bribe payments as a deduction. Similarly, each of the offences in the Act were defined as an "enterprise crime offence" in the Criminal Code. The following sections of the Code were also added to the definition of an "enterprise crime offence": section 123, on municipal corruption; section 124, on selling or purchasing office; and section 125, on influencing or negotiating appointments or dealing in offices.
In addition, by adding the Corruption of Foreign Public Officials Act offences to the list of offences under section 183 of the Criminal Code, it is possible for police, through the lawful use of a wiretap and other electronic surveillance, to gather evidence in the bribery of foreign public officials cases, and in the possession and laundering of proceeds from these cases. This assists in the investigation of these new offences.
It should be noted that An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts (S.C. 2001, c. 32), assented to on December 18, 2001, has amended the Corruption of Foreign Public Officials Act. Section 58 of the Act repealed sections 4 to 7 of the Corruption of Foreign Public Officials Act. However, subsection 12(7) amended section 462.3 of the Criminal Code, by adding a new subsection 462.3(3) of the Criminal Code. This subsection provides that the Attorney General of Canada may exercise all the powers and perform all the duties and functions assigned to the Attorney General by or under the Criminal Code in respect of a designated offence where the alleged offence arises out of conduct that in whole or in part is in relation to an alleged contravention of an Act of Parliament or a regulation made under such an Act, other than the Criminal Code or a regulation made under the Criminal Code. Subsection 12(7) also adds a new subsection 462.3(4) of the Criminal Code. This new subsection makes it clear that subsection (3) does not affect the authority of the Attorney General of a province to conduct proceedings in respect of a designated offence or to exercise any of the powers or perform any of the duties and functions assigned to the Attorney General by or under the Criminal Code. Subsection 12(6) of the Act has amended subsection 462.3(1) of the Criminal Code, by defining a "designated offence." A "designated offence" would mean (a) an indictable offence under this or any Act of Parliament, other than an indictable offence prescribed by regulation, or (b) a conspiracy or an attempt to commit, being an accessory to, or any counselling in relation to, an offence referred to in paragraph (a) [the aforementioned indictable offences]. Section 13 of the Act has also amended paragraphs 462.31(1)(a) and (b) of the Criminal Code, so that they would read:
By creating a new separate Act to deal with corruption of foreign public officials, the federal government has allowed for federal, as well as provincial enforcement. There are some practical reasons for carrying out prosecutions federally: the Act is a federal government response to an international initiative and demonstrates Canada's commitment to its trading partners. It is also likely that prosecutions will be infrequent and require specialized knowledge in this area which could, for practical reasons, be obtained and maintained by Justice Canada.
We are aware of one case under the Act, currently being prosecuted by the Alberta Government. Hector Ramirez Garcia, a U.S. immigration officer, who worked at the Calgary International Airport, pleaded guilty, in July 2002, to accepting bribes from Hydro Kleen Group Inc., an Alberta-based company, in exchange for showing favour to the company. Garcia is now awaiting sentencing.
Hydro Kleen, its president Robert Watts and employee Paulette Francis Bakke, have been charged under the Corruption of Foreign Public Officials Act with, among other things, two counts of bribing Garcia, and are now awaiting trial in the Alberta Court of Queen's Bench.
Justice Canada has contacted provincial authorities to ascertain if there have been any other provincial prosecutions under the Act. No others have been recorded, either federally or provincially. Officials continue to be involved in publicising the existence of the Act. As illustrated in previous annual reports, considerable efforts have been made to make persons aware of Bill S-21 and the Corruption of Foreign Public Officials Act:
The Convention aims to stop the flow of bribes and, among other benefits, to remove bribery as a non-tariff barrier to trade. The Convention and the 1997 Revised Recommendation of the Council on Combating Bribery in International Business Transactions provide for self and mutual evaluation by Members of the OECD Working Group on Bribery in International Business Transactions (the Working Group). The aim of the review exercise is to ensure the effectiveness of national instruments to combat bribery and a level playing field. The review process is in many respects adversarial in nature.
The evaluation takes place in two phases. The first is designed to evaluate whether the legal texts through which participants implement the Convention meet the standard set by the Convention, as well as initial actions to implement the 1997 Revised Recommendation. The second phase of evaluations will study and assess the structures put into place to enforce national laws and the application of the laws and rules in practice.
The essential elements of Phase I reviews include: (i) preparation for consultation in the Working Group, including a reply to a questionnaire by the country being examined, which forms the basis of a provisional review by the Secretariat; (ii) consultation in the Working Group, including questions and comments from two countries that serve as lead examiners and responses by the country being examined; and (iii) adoption of a report by the Working Group. Each country report contains a review of a country's relevant laws, and an evaluation, which outlines the principal findings of the Working Group.
The Working Group has worked on an intensive basis and its output over the last two years has been impressive. Of the 34 original signatories to the Convention, only Brazil, Chile and Turkey have yet to undergo their Phase 1 reviews. As other countries accede to the Convention, such as Slovenia, the Phase I evaluation process will be applied to them. Though the original signatories were all due to be evaluated in Phase I by Spring 2000, it appears that 2002 is now more realistic. Where countries have amended legislation in response to the evaluations they have received, such responses will be reviewed in a Phase 1 bis monitoring exercise.
Thirty-one countries, including Canada have undergone their Phase I reviews and most of these reviews are available on the OECD's web site. Annex A to this Report contains a list of web sites where individual country evaluations may be viewed as well as the Working Group's 2000, 2001 and 2002 Reports to Ministers. For ease of reference, Canada's review is attached as Annex B. Paper copies of the Report to Ministers and individual public country evaluations may also be obtained from the Cabinet and Parliamentary Affairs Division of the Department of Foreign Affairs and International Trade by phoning 944-0389.
Canada's implementing legislation was reviewed by the Working Group July 8-9, 1999. The Working Group concluded that the Act meets the requirements set by the Convention. The Working Group also noted that some issues may benefit from further examination during the Phase II evaluation, such as the exemption of reasonable expenses incurred in good faith, Canada's choice not to establish nationality jurisdiction with respect to bribery of foreign public officials, payments to secure performance of any act of a routine nature from the purview of the offence and sentencing courts' discretion in imposing fines.
In addition to its other work, the Working Group has developed a questionnaire and procedures for Phase II evaluations, including terms of reference for on-site visits. These are attached as Annex C to this Report. The questionnaire forms the preliminary basis upon which Phase II evaluations will be conducted, although evaluators may ask supplementary questions in any given area. On-site visits by the Secretariat and lead examiners will constitute another major aspect of the evaluation process, and will include informal exchanges of views with key representatives of the private sector and civil society. (Each examined country will be consulted on the best manner of obtaining input from the private sector and civil society.)
On-site visits will be followed by preparation of preliminary reports, consultation on and adoption of reports by the Working Group meeting in plenary, and finally transmission of the reports to the OECD Council. When the Working Group drafted the questionnaire and procedure, Canada and other federal states stressed the importance of giving federal states sufficient time to respond to the questionnaire. As a result, the time limits for responding to the questionnaire will be fixed by the Secretariat in coordination with the country concerned and the two lead examiners.
Finland was the first country to be evaluated in Phase II and the Working Group reviewed and approved the report on Finland earlier this year. The Working Group also reviewed the United States earlier this year but has not yet issued its report. Germany and Iceland will undergo Phase II reviews later this year and all Phase II evaluations should be completed by approximately 2006.
Thirty-four Members of the OECD Working Group on Bribery had ratified the Convention as of the date of preparation of this report. Thirty-one Members of the Working Group (including Canada) have had their implementing legislation evaluated as part of the peer review process. The other Members who have been evaluated include: Argentina, Australia, Austria, Belgium, Bulgaria, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, Slovak Republic, Spain, Sweden, Switzerland, the United Kingdom, and the United States. The following is a chart, based on Member submissions to the OECD, of steps taken and planned future actions by other participating countries to ratify and implement the Convention, current as of 25 April 2002:
The Argentine Republic approved the Convention by Law N 25.319 on 18 October 2000 and deposited the instrument of ratification on 8 February 2001 with the OECD Secretary-General.
To conform to the Working Group's recommendations, a draft bill has been prepared by the Anti-corruption Office amending Article 258 bis of the Penal Code adapting the criminal offence of bribery of a foreign public official to the standards of the OECD Convention. The draft bill was sent to
Parliament on 26 March 2002.
On another related issue, the Ministry of Justice and Human Rights elaborated a draft bill on the criminal liability of legal persons, in accordance with the standards of the Convention, which is now being considered by a working group in order to report conclusions on the subject to the Minister.
Legislation to implement the Convention was passed by the Australian Parliament and received Royal Assent on 17 June 1999. The instrument of ratification was deposited with the OECD Secretary-General on 18 October 1999. The legislation came into effect on 18 December 1999.
The domestic offences of bribery have been updated and the penalties raised to those imposed on bribery of foreign public officials.
The legislation implementing the Convention has been in force in Austria since 1 October 1998. The First Chamber of Parliament passed the bill for ratification on 24 March 1999. The ratification process was finalised and the instrument of ratification deposited with the OECD Secretary-General on 20 May 1999.
The discussion process on reviewing the status of legal persons will take longer than expected. The Government parties decided to organise a consultation in Parliament in early June 2002 with experts, Members of Parliament and private sector representatives to consider further how to address this issue. Austria has to adopt legislation on the status of legal persons in order to conform to the Second Protocol to the Convention for the Protection of the Financial Interest of the European Union and other EU instruments as well as the Council of Europe Criminal Law Convention on Corruption, signed on 13 October 2000.
Ratification and implementation of the Convention involved two different steps. With respect to the revision of penal law to comply with the obligations under the Convention, the legislative proposal was passed by Parliament at the beginning of February 1999, it was published on 23 March and entered into force on 3 April. The ratification bill was adopted by Parliament on 22 April and it received royal sanction on 9 June 1999. The instrument of ratification was deposited with the OECD Secretary-General on 27 July 1999. Brazil Brazil ratified the Convention in 2000. The Senate approved the ratification bill on 12 June 2000. The President signed the bill on 6 August and the instrument of ratification was deposited with the OECD Secretary-General on 24 August 2000. The Convention text was published in the Official Gazette on 30 November 2000.
The draft implementation bill was submitted to Congress and approved by the Federal Chamber of Deputies in October 2001. It was tabled for discussion by the Senate, on 1 November 2001 and the President requested that the Senate examine the bill urgently.
Bulgaria ratified the Convention on 3 June 1998 and deposited its instrument of ratification on 22 December 1998 with the Secretary-General of the OECD. The implementing legislation, including the definition of foreign public official, was passed by Parliament on 15 January 1999 and came into force on 29 January 1999. The text of the Convention was published in the Official State Gazette on 6 July 1999. From this date on, it has been considered part of the domestic legislation.
Subsequent to the Working Group's recommendations, Parliament adopted on 8 June 2000, amendments to the Penal Code relating to the criminalisation of "offering" and "promising" of a bribe as well as the abolition of the concept of "provocation" as a defence. The draft supplementing the Law on Administrative Offences and Sanctions whereby monetary sanctions and forfeiture can be imposed on legal persons that are found to bribe or commit some other crimes as well as the draft amendment to the Penal Code whereby non-material (non-valuable) advantages are included in the scope of bribery were still under parliamentary consideration at the time of dissolution of Parliament for elections. The new government, which has made the fight against corruption one of its top priorities, promised to submit the two bills to Parliament this year.
Bulgaria ratified both the Council of Europe Civil Law Convention on Corruption (June 2000) and the Criminal Law Convention on Corruption (November 2001).
The draft ratification law of the Convention was presented to the Chamber of Deputies on 5 January 1999 which approved it on 23 March 2000. The draft bill, which had been sent to the Senate on 4 April, was approved in March 2001. Chile deposited its instrument of ratification with the OECD Secretary-General on 18 April 2001.
A bill to implement the Convention has been drafted by the State Defence Council; it has been submitted to the Ministry General of Government who forwarded it to the Ministry of Justice. The bill was submitted to Parliament in December 2001. The Executive requested in March 2002 that the bill be given urgency status.
Chile has currently no provisions criminalising bribery of foreign public officials. The draft therefore establishes the offence of bribery of foreign public official, provides for a definition of "foreign public official," introduces criminal liability of legal persons as well as penalties for omissions and falsifications by companies of their books and records.
The draft amendment to the Criminal Code was adopted by Parliament and came into force on 9 July 1999. The ratification process was finalised and the instrument of ratification deposited with the OECD Secretary-General on 21 January 2000. The Convention entered into force internally on 21 March 2000.
An amendment to the Income Tax Act stating explicitly that bribes are not deductible expenses entered into force on 1 January 2001. A new Act on Auditors also entered into force on 1 January 2001. Accordingly, auditors have to notify immediately any indications of possible acts of bribery to the statutory and supervisory bodies of the company. The Parliament approved an amendment to the Accounting Act in September 2001. This amendment, which explicitly prohibits off-the-book accounts as well as off-the-book transactions and increases fines, entered into force on 1 January 2002.
The government approved, on 9 April 2001, the legislative concept of re-codification of the Criminal Code, which will include the introduction of criminal responsibility of legal persons. The draft Criminal Code should be finalised before the end of 2002.
The Czech Republic ratified the Council of Europe Criminal Law Convention on Corruption (8 September 2000) and signed the Civil Law Convention (9 November 2000).
The government submitted draft legislation on both ratification and implementation of the Convention in Spring 1999 to Parliament. The draft legislation was re-submitted to Parliament in October and went through the first reading on 27 October 1999. On 30 March 2000, the draft law to implement the Convention was adopted by Parliament and came into force on 1 May 2000. The instrument of ratification was deposited with the OECD Secretary General on 5 September 2000. The legislation is publicly available including on the Internet.
The legislation for ratification and implementing legislation were approved by Parliament on 9 October 1998 and Finland deposited its instrument of ratification on 10 December 1998. The amended Penal Code entered into force on 1 January 1999. The Convention entered into force internally on 15 February 1999.
The law authorising the ratification of the Convention was adopted on 25 May 1999 (Law N° 99-424 of 27 May 1999). The National Assembly adopted the implementing legislation on 30 June 2000. France deposited its instrument of ratification on 31 July 2000. The Convention entered into force together with the implementation law on 29 September 2000.
Germany ratified the Convention on 10 November 1998. The implementing legislation contained in the Act on Combating International Bribery of 10 September 1998 entered into force together with the Convention on 15 February 1999. Draft legislation implementing the European anti-corruption instruments, notably the Second Protocol to the Convention for the Protection of the Financial Interest of the European Union as well as the European Joint Action on bribery in the private sector, has been passed to the Federal Government. The latter decided in mid-April to submit the relating bill to Parliament, declaring it as urgent. The bill contains small amendments to the Penal Code, the Administrative Offences Act, adjusting the provisions on liability of legal persons to EU standards.
The Convention was ratified by Parliament on 5 November 1998. The implementing legislation was passed by Parliament the same day. Greece deposited its instrument of ratification on 5 February 1999.
To conform to the Working Group's recommendations, draft amendments to the implementing legislation are at the final stage of preparation by the Ministry of Justice. The amendments aim at including a definition of "foreign public officials" by reference to Art. 1 of the Convention and to address the responsibility of legal persons in order to refer to "enterprises and legal persons" and not only to enterprises. The amendments will be submitted to Parliament at a later stage.
The Ministry of Justice circulated a questionnaire to all prosecutors' offices during the summer 2000 in order that they report back about every possible case concerning the application of the Convention.
The texts of ratification of the Convention and implementing legislation (the Amendment of the Criminal Code) were submitted to Parliament in May 1998. The text for ratification was approved on 29 September 1998 and Hungary deposited its instrument of ratification on 4 December 1998. The Amendment of the Criminal Code was passed in December 1998 and came into force on 1 March 1999.
The government adopted in March 2001 a resolution to fight corruption. This resolution is broadly designed, including measures relating to criminalisation of corruption, to political parties' financing and accounting practices as well as public procurement rules. A bill with amendments to the Penal Code was adopted by Parliament in December 2001. These amendments relate notably to the elimination of the defence in the case of the bribe being given upon the initiative of the foreign public official, penalties and statute of limitations, the confiscation regime and the sanctioning of legal persons. A bill on the responsibility of legal persons was also approved in December 2001 by Parliament. The bill provides for criminalisation of legal persons and of their managers that have committed criminal acts for the account of the legal person or that have omitted to control their personnel.
The Icelandic government deposited its instrument of ratification on 17 August 1998 and the implementing legislation was passed by Parliament on 22 December 1998.
On 27 April 2000, the Icelandic Parliament passed legislation amending the General Penal Code. The amendments came into effect on 9 May 2000. The ceiling on the level of fines for legal persons was removed and the statute of limitations for legal persons was increased to up to five years.
The Prevention of Corruption (Amendment) Bill, 2000 is the legislation which will enable Ireland to ratify a number of Conventions dealing with corruption, drawn up by the European Union, the Council of Europe and the OECD respectively. It was signed into law by the President on 9 July 2001.
The Act, commenced by Ministerial order took effect from 26 November 2001, except for subsection 4(2)(c) relating to the planning process as this subsection is dependant on the coming into force of the relevant section of the Planning and Development Act, 2000.
The law of ratification and implementation of the Convention was enacted by the Italian Parliament, together with three other European Union instruments against corruption and bribery, on 29 September and was published in the Official Journal on 25 October 2000. The law came into force on 26 October. The instrument of ratification was deposited with the OECD Secretary-General on 15 December 2000.
The law provides for non-criminal sanctions of legal persons - whose application is, however, entrusted to the penal judge. Sanctions include fines of up to Euro 1.5 million. In addition, various penalties can be imposed in most serious cases such as ineligibility, exclusion from public benefits, revocation of authorisations. This new approach will also apply to domestic corruption and some other offences by companies. The text of the decree, through which the provision on the liability of legal persons enters into force, was approved by the Council of Ministers in May 2001. On 8 June 2001, the President of the Republic and the government signed the decree. The legislative decree of 8 June, nr. 231, was published in the official gazette nr. 140 on 19 June. It came into force on 4 July 2001, 15 days after its publication.
A code of conduct for public employees as well as a statute providing for the immediate dismissal of corrupt public officials were published in the official gazette in April 2001.
In the fall of 2001, the Italian Parliament adopted two laws in areas covered by the Convention; one on mutual legal assistance and another one empowering the Government to issue a legislative decree on company law. The legislative decree, issued on 11 April 2002, contains among others, provisions on accounting offences by legal persons and on criminalisation of private-sector bribery.
On 10 April 1998, the Government of Japan formally submitted the Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions, along with its implementing legislation (amendments to the Unfair Competition Prevention Law) to the National Diet. The National Diet approved the conclusion of the Convention on 22 May 1998. The implementing legislation was adopted on 18 September 1998. The instrument of acceptance was deposited on 13 October 1998. The implementing legislation –– the Unfair Competition Prevention Law –– entered into force together with the Convention on 15 February 1999.
The Anti-Organised Crime Law, which contains provisions making money laundering an offence in relation to bribery of foreign public officials, was adopted in August 1999 and entered into force in February 2000. A new policy excluding companies involved in bribery transactions from official development assistance contracts was adopted in April 2000.
In view of conforming to the Working Group's recommendations, the Diet adopted a bill amending the Unfair Competition Prevention Law on 22 June 2001. The aim of the amendment is to remove the "main office" exception and to broaden the definition of public officials in relation to public enterprises.
The Korean Government formally submitted the bill to ratify the Convention along with its implementing legislation to the National Assembly in October 1998, which approved both bills on 17 December 1998. Korea deposited its instrument of ratification on 4 January 1999. Korea's implementing legislation -- the Act on Preventing Bribery of Foreign Public Officials in International Business Transactions -- came into effect at the time of the entry into force of the Convention, i.e., on 15 February 1999. The National Assembly adopted on 3 September 2001, two anti-money laundering bills -- the Financial Transaction Reports Act and the Proceeds of Crime Act. The Financial Transaction Reports Acts stipulates the establishment of a Financial Intelligence Unit (FIU) whereby financial institutions will be required to provide the FIU with information on suspicious financial transactions. The Proceeds of Crime Act makes money laundering an offence in relation to bribery of domestic and foreign public officials.
The Chambre des Députés (Parliament) approved the bill to ratify and implement the Convention on 15 January 2001. The bill was published in the Mémorial (Official Journal) on 7 February 2001 and entered into force on 11 February. The instrument of ratification was deposited with the OECD Secretary-General on 21 March 2001.
The Convention was approved by the Mexican Senate as an international treaty on 22 April 1999; on 12 May, the promulgation decree was published in the "Official Gazette of the Federation"(D.O.F.). The implementing legislation was approved by the two Chambers in Congress at the end of April, as part of a comprehensive package of reforms to the Criminal code in Mexico. The respective decree was promulgated in the D.O.F. on 17 May 1999. The instrument of ratification was deposited with the OECD Secretary-General on 27 May 1999. To conform to the Working Group recommendations, the government is currently preparing a draft bill to fully implement the Convention.
The bills to ratify and implement the Convention were enacted, together with three other European Union instruments against corruption and bribery, on 13 December 2000 and came into force on 1 February 2001. The instrument of ratification was deposited with the OECD Secretary-General on 12 January 2001.
The Crimes (Bribery of Foreign Public Officials) Amendment Act 2001 implementing the Convention was passed by the Parliament and received Royal Assent on 2 May 2001. The Act was published in the Public Act 2001 n°28 and came into force on 3 May 2001. The ratification followed the enactment of legislation and the ratification instrument was deposited with the OECD Secretary-General on 25 June 2001.
After consultation with the relevant private and public authorities, at the end of May 1998, the Government submitted to Parliament the bills to ratify and implement the Convention. The amendments to the Penal Code were passed on 27 October 1998 and came into force on 1 January 1999. The instrument of ratification was deposited on 18 December 1998.
An expert committee has been established to review the current legislation and propose new legislation on bribery, including that of foreign public officials. The committee shall pay particular attention to the level of penalties as well as to the limitations period.
The ratification bill, which was approved by the two chambers of Parliament in January 2000, has received Presidential approval and has been published in the Official Journal. The instrument of ratification was deposited with the OECD Secretary-General on 8 September 2000.
The implementing legislation was enacted on 9 September. It was signed by the President and published in the Official Journal on 3 November 2000. It entered into force on 4 February 2001.
The most important elements of the implementing act are the criminalisation of active and passive bribery of foreign public officials, the administrative responsibility of legal persons, the provision allowing better mutual legal co-operation, and the exclusion of companies having been found to bribe from public orders.
After the Convention was approved and ratified by the Parliament (February 2000) and by the President of the Republic, the instrument of ratification was deposited with the OECD Secretary-General on 23 November 2000.
In June 2001, Portugal enacted implementing legislation (Law No. 13/2001 of 4 June). The law entered into force on 9 June 2001.
The new implementing law aims at meeting the requirements of the Convention; it is part of a more general concern to address economic and financial crime. The law covers foreign public officials, including international organisations and foreign and national holders of political positions not considered officials. It provides for criminal sanctions for natural persons, with imprisonment ranging from one to eight years and for criminal liability of legal persons. It also establishes bribery as a predicate offence for money laundering purposes.
The Slovak Parliament approved the ratification of the Convention on February 11, 1999. The implementing legislation, which included the amendment of the Penal Code, entered into force on 1 September 1999. On 1 November 1999, the amendment to the Code of Criminal Procedure came into effect. The instrument of ratification was deposited with the OECD Secretary-General on 24 September 1999.
In June 2001, the National Council of the Slovak Republic adopted Law 253, amending the Penal Code in line with the recommendations of the Working Group. The law came into force on 1 August 2001. Accordingly, the offence of bribery of foreign public official includes third parties, the level of sanctions is increased to those imposed for bribery of domestic public officials, and the statute of limitations is extended to up to five years.
The full re-codification of the Penal Code and Code of Criminal Procedure will include a provision on criminal liability of legal person and a revised provision on effective regret regarding corruption. These Articles, expected to come into force in 2002, are still under preparation.
Following approval by the Government in mid-April 2002, the draft law on accounting, designed to adapt domestic accounting rules to international standards, was submitted to the National Council of the Slovak Republic. A draft law on Auditors, approved by the Government on 24 April, awaits to be sent to the Parliament. It is expected that both Acts will come into effect in early 2003.
Slovenia enacted the law authorising its accession to the Convention in December 2000 and it was published in the Official Gazette 1/2001 on 8 January 2001. Slovenia deposited its accession instrument with the OECD Secretary-General on 6 September 2001.
To conform to the provisions of the Convention, the Slovenian Parliament adopted a new anti-money laundering legislation in late September 2001. The government also established the "Prevention of Corruption Office," which has well advanced in the drafting of the national anti-corruption policy as well as in the drafting of the anti-corruption law. The new draft legislation is to be submitted to Government before submission to Parliament for adoption by the end of 2002. Furthermore, the government started revision of the Criminal Procedure Code and will soon commence revision of the Criminal Code in the light of complete adaptation of the definitions of "foreign public official" and "trading in influence" to the standards set by the Convention. Finally, a new law on the incompatibility of public functions with profit-making activities is under preparation.
The ratification law was submitted to Parliament in the fall 1998. Spain deposited its instrument of ratification with the OECD Secretary-General on 14 January 2000. On 12 January 2000, the implementing legislation was published in the State Official Journal; it came into force on 2 February 2000.
The Working Group's recommendations to fully implement the Convention are currently being examined by the Ministry of Justice.
The bill making the necessary amendments of Swedish legislation in order to be able to ratify and implement the Convention was passed by Parliament on 25 March 1999. The instrument of ratification was deposited with the OECD Secretary-General on 8 June 1999. The implementing legislation entered into force on 1 July 1999.
Draft ratification and implementing legislation was approved by the Upper Chamber of Parliament on 7 October 1999 and by the Lower Chamber of Parliament on 9 December 1999. The law entered into force on 1 May 2000, after the mandatory three-month period for possible referenda had expired and publication requirements were fulfilled. The instrument of ratification was deposited with the OECD Secretary-General on 31 May 2000.
The draft corporate liability bill was approved by the Lower Chamber of Parliament (7 June 2001 ) after having been approved by the Upper Chamber of Parliament (14 December 1999). The remaining differences between the two Chambers were resolved in September 2001. The bill provides that in corruption cases penal sanctions can be imposed independently from the criminalisation of natural persons and independently from the act or the negligence of a body of the corporation. The corporate liability bill is part of a general revision of the Penal Code currently underway. Consideration is given to the possibility of advancing entry into force of the bill by introducing it independently from the new Penal Code. The government decided in February 2001 to sign the Council of Europe Criminal Law Convention. Switzerland may consider joining, at a later stage, the GRECO.
The Convention was ratified on 1 February 2000 by the Turkish Grand Nation Assembly and the ratification bill entered into force on 6 February 2000. The instrument of ratification was deposited with the OECD Secretary-General on 26 July 2000.
The draft bill on the implementation of the Convention, which was approved by the Ministry of Justice and the Prime Minister, was submitted to Parliament on 3 November 2000. It has been approved by the Justice Commission and is awaiting to be scheduled for discussion by the General Assembly.
The United Kingdom deposited its instrument of ratification on 14 December 1998. A public discussion document on proposals for new legislation on corruption was published in June 2000. Legislation to meet two points raised by the OECD Working Group (application of the law to the bribery of foreign official and to acts by UK nationals and companies abroad) was included in the Anti-terrorism, Crime and Security Act, 2001, which came into force on 14 February 2002.
The Convention was extended to the Isle of Man in June 2001; negotiations are still underway to bring then Channel Islands within the scope of the Convention. To achieve the latter, the Channel Islands need to enact new legislation to ensure their domestic laws match the provisions of the Convention.
Also, the process to bring the UK's Overseas Territories under the scope of the Convention has begun. This involves bilateral consultative process with each Territory. The UK will inform the Group of the extension of the applicability of the Convention to Overseas Territories. The results of an independent study by consultants into financial regulation in six Overseas Territories (Anguilla, Bermuda, the British Virgin Islands, the Cayman Islands, Montserrat and Turks and Caicos Islands) were published in October 2000.
Implementation of the recommendations is proceeding and will ensure that all the Overseas Territories fully meet international standards of financial regulation.
On 31 July 1998 the Senate approved both the Convention and the implementing legislation. Congress completed action on implementing legislation in October 1998 The implementing legislation was signed by the President on 10 November 1998; the ratification instrument was signed by the President on 20 November 1998. The U.S. deposited its instrument of ratification with the OECD Secretary-General on 8 December 1998. The legislation is available on the Internet at www.usdoj.gov/criminal/fraud/fcpa.html. This site is regularly visited, and it proves to be very useful to promote the existing obligations as well as to obtain information on potential violations of the law.
Effective August 2000, the Civil Asset Forfeiture Reform Act, expands the grounds for civil and criminal forfeiture, making the proceeds of violations of the Foreign Corrupt Practices Act (FCPA) forfeitable. In March 2002, the President signed an executive order to define the European Union's organisations and Europol as public international organisations, thereby extending the application of the FCPA to bribery of officials from these organisations. To conform to the Working Group's Phase I recommendation, amendments to the U.S. Sentencing Guidelines have been submitted to Congress in order to adjust the sanctions for the bribery of foreign public officials to those applicable to bribery of domestic public officials. It is expected that this proposal will come into effect, subject to Congress's approval, in November 2002.
A number of civil and criminal cases were prosecuted under the FCPA in 2001 and early 2002:
Civil Cases: complaints have been filed by the SEC against several enterprises and individuals, including American Banknotes Holographics and two former officers (SEC Litigation Release 17068A); KPMG Siddharta Siddharta & Harsono and Sonny Harsono (SEC Litigation Release 17127); Baker Hughes and two former officers (SEC Litigation Release 17126 and Administrative Action No. 3-10572); Chiquita Brands International (SEC Litigation Release 17169 and Administrative Action No. 3-10678). The KPMG/Harsono case was brought jointly by the SEC and the Department of Justice.
Criminal Cases: four defendants were charged in the Western District of Missouri with violating the FCPA by agreeing to offer bribes to political parties in Costa Rica; two of these defendants pled guilty, trial is pending for the third and the forth is a fugitive; a World Bank official pled guilty in the District of Columbia to a violation of the FCPA and other offences in connection with acting as an intermediary for the payment from a Swedish company to an African official; an officer of American Banknotes Holographics pled guilty in the Southern District of New York to a violation of the FCPA and securities fraud charges based on payments to an official of the Saudi Arabian Treasury. Sentencing of an individual is pending in the Southern District of Texas for having caused a publicly-held U.S. company to falsely book payments to a Russian government official. Two individuals were charged in the Southern District of Texas with violating the FCPA by authorising payments to Haitian customs officials to obtain substantially reduced import duties and sales taxes. In April 2002, however, the trial court dismissed the indictment, finding that such payments were not "to obtain or retain business" and were, therefore, outside the scope of the FCPA. The U.S. Department of Justice is contemplating whether to appeal this decision to the Court of Appeals. The United States deposited the instrument of ratification of the Inter-American Convention on Corruption on 29 September 2000 and signed the Council of Europe Criminal Law Convention on Corruption (10 October 2000) as well as the GRECO (19 September2000).
Annex A - Country Evaluation Web Sites
26-27 June 2000
Documents from 2000, document C/MIN(2000)8
16-17 May 2001
Documents from 2001, document C/MIN(2001)5
15-16 May 2002
|Country||Deposit of instrument of ratification / acceptance||Entry into force of the Convention||Enactment of implementing legislation||Entry into force of implementing legislation|
|Argentina||8 February 2001||9 April 2001||1 November 1999||10 November 1999|
|Australia||18 October 1999||17 December 1999||17 June 1999||17 December 1999|
|Austria||20 May 1999||19 July 1999||17 July 1998||1 October 1998|
|Belgium||27 July 1999||25 September 1999||3 April 1999 and 3 August 1999||3 April 1999|
|Brazil (*)||24 August 2000||23 October 2000||--||--|
|Bulgaria||22 December 1998||20 February 1999||15 January 1999||29 January 1999|
|Canada||17 December 1998||15 February 1999||10 December 1998||14 February 1999|
|Chile (*)||18 April 2001||17 June 2001||--||--|
|Czech Republic||21 January 2000||21 March 2000||29 April 1999||9 June 1999|
|Denmark||5 September 2000||4 November 2000||30 March 2000||1 May 2000|
|Finland||10 December 1998||15 February 1999||November 1998||1 January 1999|
|France||31 July 2000||29 September 2000||29 September 2000|
|Germany||10 November 1998||15 February 1999||10 September 1998||15 February 1999|
|Greece||5 February 1999||6 April 1999||5 November 1998||1 December 1998|
|Hungary||4 December 1998||15 February 1999||22 December 1998||1 March 1999|
|Iceland||17 August 1998||15 February 1999||22 December 1998||30 December 1998|
|Ireland||--||--||--||26 November 2001|
|Italy||15 December 2000||13 February 2001||29 September 2000||26 October 2000|
|Japan||13 October 1998||15 February 1999||8 September 1998||15 February 1999|
|Korea||4 January 1999||5 March 1999||28 December 1998||15 February 1999|
|Luxembourg||21 March 2001||20 May 2001||11 February 2001|
|Mexico||27 May 1999||26 July 1999||17 May 1999||18 May 1999|
|Netherlands||12 January 2001||13 March 2001||1 February 2001|
|New Zealand||25 June 2001||24 August 2001||2 May 2001||3 May 2001|
|Norway||18 December 1998||16 February 1999||27 October 1998||1 January 1999|
|Poland||8 September 2000||7 November 2000||9 September 2000||4 February 2001|
|Portugal||23 November 2000||22 January 2001||23 May 2001||9 June 2001|
|Slovak Republic||24 September 1999||23 November 1999||6 July and 16 September 1999||1 November 1999|
|Slovenia||6 September 2001||5 November 2001|
|Spain||4 January 2000||4 March 2000||2 February 2000||2 February 2000|
|Sweden||8 June 1999||7 August 1999||25 March 1999||1 July 1999|
|Switzerland||31 May 2000||30 July 2000||22 December 1999||1 May 2000|
|Turkey (*)||26 July 2000||24 September 2000||--||--|
|United Kingdom||14 December 1998||15 February 1999||--||14 February 2002|
|United States||8 December 1998||15 February 1999||21 October 1998||10 November 1998|
* These countries have not yet adopted implementing legislation.
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