INTERNATIONAL ANTI-CORRUPTION ACADEMY PUBLISHES E-COURSE ON CONFLICT OF INTEREST MANAGEMENT

The course «Managing Conflicts of Interest in the Public Sector» examines the key elements that need to be considered when creating (reforming) a system for managing conflicts of interest in a country. The course presents examples used in various countries.

The course consists of an introduction and seven thematic sections. The introductory part examines the goals and features of conflict of interest regulation as a tool for preventing corruption, as well as general approaches to consolidating the relevant provisions in international documents and legislation of countries. The first part of the course is devoted to the concept of «conflict of interest», which in the future will directly depend on the effectiveness of the enforcement of the relevant rules. The second chapter examines typical situations of conflicts of interest arising in various areas of government regulation, and countries' approaches to consolidating lists of typical situations. The following three parts focus on the key elements of conflict of interest management:

- prevention of conflicts of interest, including through the use of anti-corruption restrictions, prohibitions and obligations;

- identification of a conflict of interest, both within the framework of the declaration, and through the independent detection of conflicts of interest by the relevant authorities;

- settlement of conflicts of interest by various methods.

In the next part, approaches to the formation of a system of measures of responsibility in relation to a conflict of interest and the definition of what is considered a violation and entails the application of sanctions are considered. The course ends with an analysis of the features of the formation of the infrastructure necessary for the functioning of the system for regulating conflicts of interest, including the creation of a system of responsible bodies, methodological support, consulting and training.

The course is intended for self-study and is available on the Academy website.

IN ECUADOR AMENDMENTS WERE MADE TO THE CRIMINAL CODE AIMED AT IMPROVING THE REGULATION OF CORRUPTION OFFENSES

One of the key points of the changes in the Criminal Code of Ecuador was the expansion of the list of corruption crimes. In particular, the Criminal Law now provides for punishment for crimes such as:

- obstruction of justice;

- overestimation of the contract price during public procurement;

- bribery in the private sector.

Some changes are aimed at toughening sanctions for corruption crimes already provided for by the Criminal Law. This tightening of sanctions is aimed at increasing the terms of imprisonment for the perpetrators. An increase in the terms of imprisonment is provided, for example, for such corruption crimes as:

- active and passive bribery;

- extortion of a bribe;

- trade in influence and offer trade in influence.

Also, according to the amendments, it established that for commission of a corruption offense in a state of emergency (for example, a pandemic), the guilty person is assigned the maximum punishment.

One of the novelties is that after the entry into force of the amendments to the Criminal Code, the prosecutor, based on the report of the Office of the Comptroller General of Ecuador, may demand the suspension of the state contract (including the transfer of funds under the contract), within which corruption violations were revealed.

Amendments to the Criminal Law provide for the possibility of mitigating measures of liability for corruption offenses, if conditions are met, for example, such as:

- disclosure of information about a crime to the competent authorities prior to the commencement of an investigation;

- cooperation with the investigation;

- full compensation for damage from the crime before the start of the trial;

- availability of a compliance program with the appointment of persons responsible for its implementation.

At the same time, the minimum requirements for such a compliance program are determined, including, for example:

- taking measures to prevent, identify and manage corruption risks;

- introduction of internal control mechanisms with the appointment of responsible persons;

- implementation of constant monitoring of the prevention of corruption;

- adoption of a code of ethics;

- implementation of anti-corruption training programs for personnel;

- introduction of internal investigation mechanisms.

According to the amendments to the Criminal Code of Ecuador, the list of aggravating circumstances for committing corruption offenses has been expanded to include:

- bringing an organization to justice in the past for a similar crime,

- the use of other national or foreign companies to commit a corruption offense;

- application of existing rules to avoid liability (for example, conducting an external audit in order to conceal a corrupt act).

A REPORT ON ILLICIT ENRICHMENT ON THE TERRITORY OF VARIOUS STATES HAS BEEN PUBLISHED

The Basel Institute on Governance published an analytical report on August 22, 2021, «Illicit Enrichment: A Guide to Laws Targeting Unexplained Wealth».

Based on an analysis of the legislation of more than 100 countries, the report examines various approaches to defining «illicit enrichment» and existing measures to identify and combat related violations. It also provides a step-by-step guide to collecting and analyzing financial information and evidence in establishing illicit enrichment for investigators.

According to the report, the use of mechanisms to prosecute illegal enrichment can be very useful in the context of combating various crimes, including corruption, as it allows the application of sanctions without establishing the fact of a person's participation in illegal activities, as a result of which appropriate funds could be obtained (enough the fact that such a person owns certain assets, but cannot confirm the legality of their origin).

The first legislative initiatives aimed at establishing responsibility for illicit enrichment appeared in the 50s of the last century (Hong Kong, Philippines), in subsequent years Pakistan, India, Argentina, Egypt, Senegal, Cuba, Turkey, Niger followed their example, and in the late XX - early XXI century, provisions on illicit enrichment appeared in international agreements. After that, the corresponding norms began to be introduced into the legislation of an increasing number of countries. At the same time, although Article 20 of the Convention against Corruption recommends the member states to criminalize illegal enrichment, not all countries, even those that ratified the Convention without exceptions, agreed to use such a solution in their legislation. This is largely due to the fact that the introduction of criminal liability for illegal enrichment, which does not require proof of the fact of previous receipt of illegal proceeds of criminal activity, runs counter to traditional legal thinking that fits into the «crime-punishment» paradigm.

This, however, does not mean that in all countries that have abandoned the criminalization of illicit enrichment, there are no mechanisms to hold accountable for this kind of behavior. For example, some states use an approach in which, in the event of an unjustified increase in assets, a citizen can be brought to civil liability. In the report, both models (criminal and civil) are considered equally. However, the authors of the report classify national laws as regulating illicit enrichment in its basic understanding only if two conditions are met:

- the relevant legislation implies the possibility of applying sanctions for the only fact of an unjustified increase in a person's assets;

- to bring a person to justice, it is not required to provide evidence of the existence of criminal activity as a result of which such assets were obtained.

In report singles out 98 countries that have adopted regulations on illicit enrichment. Most of these countries are located in the Asia-Pacific region and Africa (36 and 35 countries), another 25 – in America, and only 2 countries – in Europe. In most cases, illegal enrichment is regulated by criminal law, a little less often liability is enshrined in civil law.

In the final part of the report, based on the existing jurisprudence, the main arguments against the establishment of responsibility for illicit enrichment are considered, which include, for example:

- unfair shifting of the burden of proof and violation of the principle of the presumption of innocence;

- incompatibility of laws on illegal enrichment with the right to remain silent and not to incriminate oneself.

Fifth Round Evaluation visit to Greece

A delegation comprising four GRECO evaluators (Croatia, Czech Republic, Spain, United Kingdom) and a member of the Secretariat went to Athens June 2021 to carry out the evaluation of Greece in the framework of GRECO's 5th evaluation round.

The topics covered were the prevention of corruption and the promotion of integrity in central governments (top executive functions) and law enforcement agencies.

GRECO announced a report will be drawn up and examined by the GRECO Plenary at the end of the year.