High-level corruption cases in the Western Balkans and Turkey

Promising, offering or giving an undue advantage to a public official, or the soliciting or accepting of one by such an official. This might happen directly or indirectly and be either for themselves or another person. The intention is that the official performs or refrains from performing their official duties.

Full text from UNCAC:

Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:

(a) The promise, offering or giving, to a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties;

(b) The solicitation or acceptance by a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties.

Promising, offering or giving an undue advantage to a foreign public official or an official of a public international organisation, or the soliciting or accepting of one by such an official. This might happen directly or indirectly and be either for themselves or another person. The intention is that the official performs or refrains from performing their official duties so that the offender obtains or retains international business or another undue advantage.

Full text from UNCAC:

1. Each State Party shall adopt such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, the promise, offering or giving to a foreign public official or an official of a public international organization, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties, in order to obtain or retain business or other undue advantage in relation to the conduct of international business.

2. Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, the solicitation or acceptance by a foreign public official or an official of a public international organization, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties.

Intentional embezzlement, misappropriation or diversion by a public official of property, funds or anything of value that had been entrusted to them by virtue of their position.

Full text from UNCAC:

Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally, the embezzlement, misappropriation or other diversion by a public official for his or her benefit or for the benefit of another person or entity, of any property, public or private funds or securities or any other thing of value entrusted to the public official by virtue of his or her position.

Promising, offering or giving an undue advantage to a public official or any other person, or the soliciting or accepting of one by such a person. This might happen directly or indirectly and be either for themselves or another person. The intention is to ensure that the public official or the person abuses their influence to obtain undue advantage from an administration or public authority.

Full text from UNCAC:

Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:

(a) The promise, offering or giving to a public official or any other person, directly or indirectly, of an undue advantage in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage for the original instigator of the act or for any other person;

(b) The solicitation or acceptance by a public official or any other person, directly or indirectly, of an undue advantage for himself or herself or for another person in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage.

A public official’s intentional abuse of their functions or position to unlawfully perform or fail to perform an act. The intention is to obtain an undue advantage for themselves or for another person.

Full text from UNCAC:

Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, the abuse of functions or position, that is, the performance of or failure to perform an act, in violation of laws, by a public official in the discharge of his or her functions, for the purpose of obtaining an undue advantage for himself or herself or for another person or entity.

A significant increase in the assets of a public official that they cannot explain in relation to their lawful income.

Full text from UNCAC:

Subject to its constitution and the fundamental principles of its legal system, each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally, illicit enrichment, that is, a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income.

Promising, offering or giving an undue advantage to any person who directs or works for a private sector entity, or the soliciting or accepting of one by such a person. This takes place during the course of economic, financial or commercial activities. It might happen directly or indirectly and be either for themselves or another person. The intention is to ensure that they act or refrain from acting in breach of their duties.

Full text from UNCAC:

Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally in the course of economic, financial or commercial activities:

(a) The promise, offering or giving, directly or indirectly, of an undue advantage to any person who directs or works, in any capacity, for a private sector entity, for the person himself or herself or for another person, in order that he or she, in breach of his or her duties, act or refrain from acting;

(b) The solicitation or acceptance, directly or indirectly, of an undue advantage by any person who directs or works, in any capacity, for a private sector entity, for the person himself or herself or for another person, in order that he or she, in breach of his or her duties, act or refrain from acting.

When a person who directs or works for a private sector entity intentionally embezzles property, funds or anything of value entrusted to them by virtue of this position. This takes place in the course of economic, financial or commercial activities.

Full text from UNCAC:

Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally in the course of economic, financial or commercial activities, embezzlement by a person who directs or works, in any capacity, in a private sector entity of any property, private funds or securities or any other thing of value entrusted to him or her by virtue of his or her position.

Converting, concealing or transferring property acquired from money earned through illegal means and making it seem as if it has been acquired legally.

Full text from UNCAC:

1. Each State Party shall adopt, in accordance with fundamental principles of its domestic law, such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:

(a)

(i) The conversion or transfer of property, knowing that such property is the proceeds of crime, for the purpose of concealing or disguising the illicit origin of the property or of helping any person who is involved in the commission of the predicate offence to evade the legal consequences of his or her action;

(ii) The concealment or disguise of the true nature, source, location, disposition, movement or ownership of or rights with respect to property, knowing that such property is the proceeds of crime;

(b) Subject to the basic concepts of its legal system:

(i) The acquisition, possession or use of property, knowing, at the time of receipt, that such property is the proceeds of crime;

(ii) Participation in, association with or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the offences established in accordance with this article.

2. For purposes of implementing or applying paragraph 1 of this article:

(a) Each State Party shall seek to apply paragraph 1 of this article to the widest range of predicate offences;

(b) Each State Party shall include as predicate offences at a minimum a comprehensive range of criminal offences established in accordance with this Convention;

(c) For the purposes of subparagraph (b) above, predicate offences shall include offences committed both within and outside the jurisdiction of the State Party in question. However, offences committed outside the jurisdiction of a State Party shall constitute predicate offences only when the relevant conduct is a criminal offence under the domestic law of the State where it is committed and would be a criminal offence under the domestic law of the State Party implementing or applying this article had it been committed there;

(d) Each State Party shall furnish copies of its laws that give effect to this article and of any subsequent changes to such laws or a description thereof to the Secretary-General of the United Nations;

(e) If required by fundamental principles of the domestic law of a State Party, it may be provided that the offences set forth in paragraph 1 of this article do not apply to the persons who committed the predicate offence.

Intentional concealment or continued retention of property when the person knows that such property is a result of corruption offences, even when they have not participated in such offences.

Full text from UNCAC:

Without prejudice to the provisions of article 23 of this Convention, each State Party shall consider adopting such legislative and other measures as may be necessary to establish as a criminal offence, when committed intentionally after the commission of any of the offences established in accordance with this Convention without having participated in such offences, the concealment or continued retention of property when the person involved knows that such property is the result of any of the offences established in accordance with this Convention.

Use of physical force, threats, intimidation, promise or pledge to induce false testimony or interfere with the giving of testimony or the production of evidence, or to interfere with a justice or law enforcement official in their duties in a proceeding in relation to the commission of corruption offences.

Full text from UNCAC:

Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:

(a) The use of physical force, threats or intimidation or the promise, offering or giving of an undue advantage to induce false testimony or to interfere in the giving of testimony or the production of evidence in a proceeding in relation to the commission of offences established in accordance with this Convention;

(b) The use of physical force, threats or intimidation to interfere with the exercise of official duties by a justice or law enforcement official in relation to the commission of offences established in accordance with this Convention. Nothing in this subparagraph shall prejudice the right of States Parties to have legislation that protects other categories of public official.

Details of a potential case of wrongdoing are published, for example in a newspaper article, report of a public body (such as the state audit office) or report of an international organisation.

This may vary from country to country. Some law enforcement authorities only consider official detection to be when they receive a formal criminal complaint or a referral from another authority, while others may consider official detection if they read about a potential criminal case in a newspaper or other publication.

There is much variation in how the criminal procedure laws of countries set up the roles and powers of the police, prosecutors and investigative judges in investigations. Some countries distinguish between a preliminary phase of investigation and a fully fledged investigation, (which would begin upon the formal decision of the investigative authority of the prosecutor). In this case, the former is not even part of the criminal proceedings, only a step which precedes it. In other countries, any investigation preceding the procedure counts as a preliminary investigation.

Following recognition by the investigative authority that a crime may have taken place, a formal decision is made to open an investigation. This involves collecting evidence and information about a possible crime. After this, investigations may be extended (sometimes repeatedly and over several years), an indictment might be filed, the investigation could be suspended (due to an obstacle) or the investigation may be terminated.

Any agreement between a legal or natural person and a law enforcement authority to resolve a corruption case without a full procedure on the merits of the allegations either before or
after indictment, with sanctions and/or confiscation, irrespective of whether it is a
conviction (e.g. plea deals) or a non-conviction mechanism (e.g. non-prosecution or
deferred prosecution agreements).

Based on the findings of the investigation, the prosecution proposes to the court – in a reasoned indictment – that it should establish that a charged individual was criminally responsible for committing a concrete criminal offence and then impose sanctions.

In various legal systems the indictment does not automatically result in a procedure, but the court examines the indictment first and can render a decision to terminate the case, for example when a particular act was not a criminal offence or that it has already been adjudicated in another criminal procedure.

The most important part of the criminal proceedings is the procedure, as the defendants can be convicted or acquitted, based on the evidence and presentations before the judges.

Resolution of the court on the matter of the case. This decides on the indictment and convicts or acquits the defendant. In the case of conviction, it also decides on sanctions and other legal consequences.

It may be followed by a first instance appeal. This is a request by any of the parties in the case directed to a higher level court to review the first instance judgement on the basis of factual or legal errors and violations of the law and to eliminate their negative consequences.

This part of the criminal procedure takes place only as the result of an appeal, and the following varies from country to country:

• who can initiate it
• its scope
• which aspects or details of the first instance judgement can be requested to be reviewed
• whether the court is bound by the intention (conviction or acquittal) and the reasons of the appeal(s)
• whether all factual and legal questions can be re-examined
• whether the sanctions can be altered without limitations
• whether the first instance judgement can be altered or only that the first instance court can be ordered to restart its procedure.

In most cases it is the final, non-appealable judgement in a criminal procedure, which concludes the case with a conviction or an acquittal.

This may be followed by a second instance appeal as some legal systems allow for a third instance procedure.

There are a variety of reasons in different countries why a case can reach a third instance. For example, the third instance court may only review cases where:

• the lower level courts imposed the most severe penalties, or
• the second instance court determined the finding of fact differently from the court at first instance, or
• the second instance revised the acquittal rendered by the court at first instance and rendered a guilty verdict.

The third instance court can remedy the procedural rule violations and criminal offences, and change the ruling of the second instance court.

These include constitutional court judgements in specific cases and supreme court judgements in cases where serious procedural rule violations or criminal offences influenced the court procedure. A rule violation may be that the person who rendered the judgement was not a judge. Relevant criminal offences include forgery of documents, false charges and obstruction of justice.

A procedure of the constitutional court in individual cases can also be seen as extraordinary remedy.

A prerogative of the executive branch, usually exercised by the head of the state (in some countries with some input from the government) to forgive a convict or an accused person for a criminal offence and restore their liberty and rights that were restricted in or as a consequence of a criminal procedure. A pardon may be granted after a conviction or sometimes even during the criminal procedure.

A general pardon for a group of suspects or offenders usually granted before criminal procedures start and usually resulting in absolving of responsibility for a particular offence supposedly committed by the implicated group of people. The share of executive and legislative power to grant amnesty varies from country to country.

Sanctions are imposed on convicts, for example they are imprisoned, stolen assets are confiscated and financial penalties are collected. Unfortunately, it is not always obvious that judgements are enforced with measures that reflect the severity of the crimes.