IACAlumnus Empowering Professionals
Issue Xii, september 2016
t h e m a g a z1i n e
Issue XII, September 2016
Interview with Paulo Roberto GalvĂŁo de Carvalho
operation car wash Is Corruption in the Judicial System the Business of Lawyers? By Rocio Paniagua Oliver
IACA Alumni reunited By the Alumni Team
2
Welcome Word Dear Alumni, The second quarter of the year at IACA has been busy but at the same time very enriching. The sixth IACA Summer Academy and the third Alumni Reunion were two main events that brought great energy and insight to the Academy. On 7 and 8 July 2016, alumni from around the world graced the latter event. The reunion was special for all of us at IACA and we would like to thank you for your dedication and enthusiasm in maintaining the flame. As torchbearers, you have a special role in furthering the global cause against corruption.
Credits IACAlumnus - the magazine is the alumni magazine of the International Anti-Corruption Academy (IACA), addressing alumni around the world who have participated in and, in general, completed at least one of IACA’s programmes or activities. IACAlumnus - the magazine welcomes contributions by alumni. As a forum to exchange ideas and latest developments, and feature the career paths of our alumni, we seek to provide you with a medium to stay connected. For contributions please contact alumni@iaca.int. IACA reserves the right to select and edit any contribution to suit the publication. We will not consider contributions that have already been published, in any form, in print or online.
From a diverse range of alumni at every reunion, we have witnessed eagerness to learn and zeal to advance efforts against corruption, and we have also seen dedication to achieve this goal as part of lifelong learning. IACA has learned from you, and we do our best to incorporate the ideas from your feedback into our programmes and activities.
Editorial Abhishek Bharti, Elisabeth Neckel, Mariana A. Rissetto
This issue of IACAlumnus brings you an article by Rocio Paniagua Oliver, who shares her thoughts regarding the functioning and endeavours of the International Bar Association in its various efforts to curb judicial corruption. Paulo Roberto Galvão de Carvalho gives his insight on ongoing investigations in the “Car Wash” case, in which he has been involved as a prosecutor since the early stages. You will also learn about the origin and meaning of our new alumni pin: the apple tree. Those of you who were unable to attend this year‘s reunion can read about the event on page 22.
front cover; back cover “Operation Car Wash“; Laxenburg - aerial view
As always, it is a pleasure to welcome you to our campus in Laxenburg as well as to receive your writing contributions for IACAlumnus. Please also feel free to provide suggestions for IACA’s alumni network. Spreading the word about the Academy’s initatives is key to the success and continuity of our programmes and activities. Lastly and most importantly, we will be pleased to hear how we can serve you better.
Print Federal Ministry of Defence and Sports/Armed Forces Printing Centre, Vienna, Austria.
Sincerely, The Alumni Team
Design Adrian Ciupagea Photographs IACA, iStock.com
Publisher International Anti-Corruption Academy (IACA) Muenchendorfer Strasse 2 2361 Laxenburg, Vienna AUSTRIA +43 (0)2236 710 718 100 www.iaca.int alumni@iaca.int
Waiver IACA promotes academic freedom. The contents of this magazine reflect the opinions of the contributors and do not necessarily represent the views or official position of IACA. Neither IACA nor its staff members or partners shall be liable for any inaccuracy, incompleteness, unavailability or error of the information provided.
Issue Xii, september 2016
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CONTENTS
september 2016
p4
Maps IACA Alumni Mapping
Is Corruption in the Judicial System the Business of Lawyers?
p6
2016 J u ly e v e n t s
p18
L at i n A m e r i c a
By Rocio Paniagua Oliver
IACA ALUMNI r e u n i o n
p22
{{ best of seminar {{ summer academy 2016 {{ anti-corruption in local governance training
p10
INT E RVI E W
“Operation Car Wash“
IACA Alumni Reunited: Third Alumni Reunion in Laxenburg
Interview with Paulo Roberto Galvão de Carvalho
By the Alumni Team
LUM
the Alumni pin
A
CA
N
p26
U P COMING co n f e r e n c e s
p27
p16
t h e a lu m n i pi n
I
c ross wo r d
By the Alumni Team
I
4 Greenland (Denmark)
UNITED STATES OF AMERICA
CANADA
IACA Alumni Mapping
UNITED STATES OF AMERICA BERMUDA
MEXICO
BAHAMAS TURKS AND CAICOS ISLANDS
CUBA CAYMAN ISLANDS
HAITI
JAMAICA
BELIZE
DOMINICAN REPUBLIC
GUATEMALA
BRITISH VIRGIN ISLANDS SINT MAARTEN ANTIGUA AND BARBUDA
SAINT KITTS AND NEVIS MONTSERRAT
HONDURAS EL SALVADOR
NICARAGUA
CURAÇAO
CABO VERDE
DOMINICA
SAINT LUCIA SAINT VINCENT AND BARBADOS THE GRENADINES GRENADA TRINIDAD AND TOBAGO
COSTA RICA
PANAMA
VENEZUELA
GUYANA SURINAME
COLOMBIA
French Guiana (FRA)
KIRIBATI
ECUADOR
BRAZIL
PERU
BOLIVIA
Status as of 12 August 2016 PARAGUAY
The boundaries and names shown and the designations used on this map do not imply any official endorsement or acceptance by the International Anti-Corruption Academy (IACA). No official endorsement or acceptance is implied with regard to the legal status of any country, territory, city, or any area or its authorities, or with regard to the delimitation of frontiers or boundaries. This map was produced to the best of common knowledge.
01. 02. 03. 04. 05. 06. 07. 08. 09. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.
Afghanistan Albania Algeria Angola Antigua and Barbuda Argentina Armenia Australia Austria Azerbaijan Bahrain Bangladesh Belarus Belgium Benin Bermuda Bhutan Bosnia and Herzegovina Botswana
20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37.
Brazil British Virgin Islands Bulgaria Burkina Faso Burundi Cambodia Cameroon Canada Cayman Islands Chile China Colombia Congo Costa Rica Côte d’Ivoire Cyprus Czech Republic Democratic Republic of the Congo
URUGUAY
ARGENTINA CHILE
57. Hungary 38. Denmark 58. India 39. Dominican Republic 59. Indonesia 40. Egypt The boundaries and names shown and the designations used on this map do not imply any official endorsement or acceptance by the International Anti-Corruption Aca 60. Iraq 41. El Salvador 61. Ireland 42. Estonia 62. Islamic Republic of Iran 43. Ethiopia 63. Israel 44. Fiji 64. Italy 45. Finland 65. Japan 46. France 66. Jordan 47. Gambia 67. Kazakhstan 48. Georgia 68. Kenya 49. Germany 69. Kosovo 50. Ghana 70. Kyrgyzstan 51. Greece 71. Latvia 52. Grenada 72. Lebanon 53. Guatemala 73. Lesotho 54. Guinea 74. Liberia 55. Haiti 75. Libya 56. Honduras
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ICELAND
RUSSIAN FEDERATION
FINLAND
SWEDEN NORWAY
ESTONIA
RUSSIAN FEDERATION
LATVIA DENMARK
LITHUANIA RUS. FED.
BELARUS
POLAND
UNITED KINGDOM
IRELAND
NETHERLANDS
GERMANY
BELGIUM LUXEMBOURG
UKRAINE
CZECH REPUBLIC SLOVAKIA
FRANCE
SLOVENIA
HUNGARY
BOSNIA AND HERZEGOVINA
ITALY
ANDORRA
SERBIA
MONTENEGRO
BULGARIA
Kosovo
ARMENIA
ALBANIA
SPAIN
UZBEKISTAN
GEORGIA
F. Y. R. OF MACEDONIA
HOLY SEE
PORTUGAL
MONGOLIA
ROMANIA
CROATIA
SAN MARINO
MONACO
KAZAKHSTAN
REP. OF MOLDOVA
AUSTRIA
LIECHTENSTEIN
SWITZERLAND
KYRGYZSTAN AZERBAIJAN
GREECE
TURKMENISTAN
TURKEY
MALTA
ISLAMIC REPUBLIC OF IRAN
LEBANON ISRAEL JORDAN
MOROCCO
IRAQ
AFGHANISTAN
JORDAN KUWAIT
ALGERIA
LIBYA
EGYPT
PAKISTAN
NEPAL BHUTAN
BAHRAIN
INDIA
QATAR
Western Sahara
SAUDI ARABIA
UNITED ARAB EMIRATES
OMAN
MALI
CHAD
SIERRA LEONE LIBERIA
PHILIPPINES
CAMBODIA
DJIBOUTI
BENIN
CÔTE D'IVOIRE
THAILAND
YEMEN
ERITREA
SUDAN
BURKINA FASO
GUINEA
Taiwan
VIET NAM LAO PEOPLE'S DEM. REP.
NIGER
SENEGAL
GUINEA-BISSAU
BANGLADESH
MYANMAR
MAURITANIA
GAMBIA
JAPAN
REP. OF KOREA
CHINA
SYRIAN ARAB REPUBLIC
CYPRUS
TUNISIA
DEM. PEOPLE'S REP. OF KOREA
TAJIKISTAN
FEDERATED STATES OF MICRONESIA
NIGERIA
GHANA TOGO
CAMEROON
SOUTH SUDAN
CENTRAL AFRICAN REPUBLIC
SRI LANKA
MALDIVES
BRUNEI DARUSSALAM MALAYSIA
SOMALIA EQUATORIAL GUINEA SAO TOME AND PRINCIPE
UGANDA
GABON
MARSHALL ISLANDS
PALAU
ETHIOPIA
SINGAPORE
KENYA
CONGO DEMOCRATIC REPUBLIC OF THE CONGO
MALAYSIA
INDONESIA
NAURU
INDONESIA
RWANDA
KIRIBATI
INDONESIA BURUNDI
INDONESIA
UNITED REP. OF TANZANIA
PAPUA NEW GUINEA
SEYCHELLES INDONESIA
TIMOR-LESTE
ANGOLA
SOLOMON ISLANDS
COMOROS
MALAWI
ZAMBIA
TUVALU
SAMOA
MOZAMBIQUE VANUATU
FIJI
MADAGASCAR
ZIMBABWE NAMIBIA
MAURITIUS
BOTSWANA
TONGA
AUSTRALIA SWAZILAND LESOTHO
SOUTH AFRICA
NEW ZEALAND
114. Singapore 95. Oman 76. IACA Lithuania 132. Turkey Alumni Mapping by Country Status as of 12 August 2016 115. Slovakia 96. Pakistan 77. Luxembourg 133. Turks and Caicos Islands 116. Solomon Islands 97. Panama 78. Madagascar 134. Uganda ademy (IACA). No official endorsement or acceptance is implied with regard to the legal status of any country, territory, city, or any area or its authorities, or with regard to the delimitation of frontiers or boundaries. This map was produced to the best of common knowledge. 117. South Africa 98. Papua New Guinea 79. Malawi 135. Ukraine 118. South Sudan 99. Paraguay 80. Malaysia 136. United Arab Emirates 119. Spain 100. Peru 81. Malta 137. United Kingdom 120. Sudan 101. Philippines 82. Mexico 138. United Republic of 121. Swaziland 102. Poland 83. Mongolia Tanzania 122. Sweden 103. Portugal 84. Monserrat 139. United States of America 123. Switzerland 104. Republic of Korea 85. Morocco 140. Uruguay 124. Syrian Arab Republic 105. Republic of Moldova 86. Mozambique 141. Uzbekistan 125. Tajikistan 106. Romania 87. Myanmar 142. Venezuela 126. Thailand 107. Russian Federation 88. Namibia 143. Viet Nam 127. The former Yugoslav 108. Rwanda 89. Nepal 144. Yemen Republic of Macedonia 109. Saint Kitts and Nevis 90. Netherlands 145. Zambia 128. Timor-Leste 110. Saudi Arabia 91. New Zealand 146. Zimbabwe 129. Togo 111. Senegal 92. Niger 130. Trinidad and Tobago 112. Serbia 93. Nigeria 131. Tunisia 113. Sierra Leone 94. Norway © IACA
2016 july events
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Issue Xii, september 2016
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2016 july events
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Brazilian federal prosecutor Paulo Roberto Galvão de Carvalho, who lectured in the IACA in July 2016, joined us to answer a few questions about “Operation Car Wash”, which is a large and ongoing corruption investigation in Brazil. Mr. Galvão de Carvalho is one of nine prosecutors in the case, which implicates some of the biggest names in Brazilian business and governance.
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operation
Car Wash
Interview with Paulo Roberto Galvão de Carvalho
W
hy is this referred to as the “Car Wash” case?
The “Car Wash”, or Petrobras case, is certainly the biggest corruption investigation in the history of Brazil. Today we are dealing with bribes of more than two billion USD, and over 30 national and international companies are being investigated. However, the investigation started as a mid-size moneylaundering and financial crimes case. In Brazil, foreign exchange black market dealers are still quite common; they are referred to as “doleiros”. Basically, these black market traders receive money in the national currency and convert it into a foreign currency or vice versa. These black market financial transactions are neither supervised nor regulated. Without leaving a trace, these transactions are frequently used for money-laundering operations. These same doleiros also started to use front companies in Brazil to hide transfers and provide money in cash to interested parties. The investigations evolved into four different groups of doleiros, each handling millions of dollars a day in illegal transactions. One of these doleiros owned a gas station, where a car wash operated. And thus, since the investigation had not yet reached
Petrobras at that time, the case became known to the public as the “Car Wash” case. What is your personal preference in terms of naming the case? I personally do not like to call it the “Petrobras case”. In each big corruption case, the name of the case refers to the company paying the bribes. In this investigation, we have over 30 companies paying bribes, and Petrobras is actually being harmed - as a company - by the overpricing of these contracts to support these bribes. The name “Car Wash” as it is used in Brazil something closer to “jet wash” - better applies to the case, as it ends up reflecting the popular imagined sense of a fast and thorough cleansing of corruption. What would you say are policy developments resulting from allowing competition in the bidding for Petrobras contracts? The impact of the Car Wash case has brought up some recent changes in policy and even in judicial precedents regarding anticorruption practices and electoral procedure. However, these are so far isolated developments that do not fully cover all that is necessary to effectively bring real change to the state of corruption. Regarding procurement, Petrobras and Brazil in
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general have been heavily hit by the economic crisis, and have not put forward new procurement bids for large infrastructure projects. Therefore, there has not been any relevant change and it has not been tested whether future bids will be any different. It is very clear, however, that for now there has been a decline of illegal money flowing into electoral campaigns. This is for two main reasons: firstly, for some fear of being caught as many were in the Car Wash case; secondly, the Supreme Court has ruled it unconstitutional for companies to make electoral campaign contributions. Although this decision had a different motivation, it was clear that the scheme presented in the Car Wash case influenced the judges. Petrobras forms a large part of the Brazilian economy. What would you say are the economic consequences of the Car Wash case? A lot has been said about the economic impact of these investigations, but many analysts fail to see that the economic crisis the country is going through would probably be just as farreaching without the investigation. First of all, Petrobras suffers from poor management decisions that became visible when oil prices went below the break even point for extraction in the presalt layer. Having said that, we also have to acknowledge that some of the biggest companies - and also biggest employers of the country - are being heavily damaged by their involvement in corrupt practices. Is there a consensus that continuing to investigate these corruption cases is a priority, despite possible negative economic consequences?
Some suggest that it would be more important for the country to “save� these companies and these jobs by arranging some sort of amnesty and let them start over with a new and stricter compliance regime. Our view is that any sort of amnesty or unusual arrangement would be even more harmful to the economy in the future. This is a once-in-a-lifetime opportunity to change things in the country, and if we were to accept that it is more important to save the companies, we would send out a message that nothing has changed. We also see a very positive economic impact coming out of this case. For the first time, it is being shown to investors inside and outside of the country that Brazil is a place where institutions work and are strong enough to tackle corruption even at the highest levels. This sense of adherence to the rule of law will certainly, in the mid-term, help to boost investment in the country. How would you judge the impact these investigations have had on public trust in Brazil? There are two sides to this answer. On one hand, it is clear that some public institutions in Brazil are trusted less than ever, due to their involvement in several cases of massive corruption. This is harmful because when representative institutions such as the Congress lose public trust, there is a risk of destabilization that might harm democracy. On the other hand, the strengthened public trust in the public prosecution services and the judiciary reveals that corruption is indeed a topic that interests people, and therefore they want to put an end to current practices. For
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Paulo Roberto Galvão de Carvalho is a federal prosecutor in Brazil and current member of the task force responsible for the investigation of the “Car Wash”, or Petrobras, case, the biggest corruption investigation ever in Brazil, for which he has been awarded national and international prizes. He has worked in the Public Defender‘s Office, the National Chamber of Deputies, and the Federal Prosecution Service since 2004. Mr. Carvalho lectured both in the IACA Summer Academy as well as the Alumni Reunion in July 2016 and the IACA Regional Summer Academy - Latin America in November 2015. He holds a law degree from Bahia Federal University and an LL.M. in Public Law from The London School of Economics and Political Science.
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“Ten Measures against Corruption” in a nutshell 1
1
Corruption prevention, transparency, and whistleblower protection.
2 3
Criminalization of illicit enrichment of public officials. Increased sanctions for corruption cases.
the first time, public perception polls have suggested that for the majority of the population, corruption is regarded as a major problem in the country. In an article in The Wall Street Journal (“How Brazil’s ‘Nine Horsemen’ cracked a Bribery Scandal”, 6 April 2015) you are quoted saying “Fear of the law was something that did not exist in Brazil for white-collar criminals and politicians.” Would you say these investigations mark the beginning of a new era in dealing with corruption? If so, how would you say that this new era is characterized as opposed to the past? Secondly, what is still needed for this new era to be successful? In recent decades, Brazil has had a number of major corruption scandals that went unpunished. If we look into the conditions that allow for this level of corruption in the country, we can clearly see two major issues. One of them is the electoral system, with extremely expensive campaign costs and a huge number of political parties and candidates, which incentivizes obtaining money from illegal sources. But maybe more relevant than that is the fact that Brazil has a criminal system that is very uneven and very lenient for whitecollar criminals. Problems arise with the length of the judicial proceedings, the infinite number of appeals, the awkward statute of limitations, low penalties, and so on. Just to give a concrete example, a former Senator was involved in a very famous corruption case in the early 1990s and was convicted in 2006. He was only sent to prison this year, after having the right to 34 appeals. And this is just for one case, while there have been several others without any punishment! Looking ahead, we understand that the Car Wash case will not change this scenario by itself. However, we see it as a window of opportunity to bring significant change to our system with
4 5 6
Increased efficiency and justice of appeals in criminal cases. Clarity in Improbity cases. Reform of statute of limitations rules.
regard to it favouring white-collar criminals and corrupt politicians. With this in mind, we envisaged a set of ten legislative proposals that we believe could improve anti-corruption efforts in Brazil. These proposals cover both preventive and enforcement measures, as well as asset forfeiture mechanisms. They were based on several international studies, including the works of Professor Robert Klitgaard, a frequent lecturer at IACA. The socalled „Ten Measures against Corruption“ were taken up by the public, who joined the effort and collected over 2 million signatures and presented them to Congress as popular initiative for a bill of laws. So we hope the Car Wash case will mark the beginning of a new era, but not because of the case itself, but due to the opportunity for change that it has brought. What role can social media play in facilitating investigations? For the Car Wash case, we used social media to promote public awareness about the facts of the case. Since this was an investigation involving very high-profile individuals and companies, we had to make sure the public was getting the correct information. One of the companies involved at some point had 40 press assistants working on its behalf solely to produce media releases against the investigations. There is no way we could have survived if we had solely relied on the case files and had not considered public awareness at all. So we put up a website of the case and our three press assistants did use social media to share information. Of course, the press was quite present all the time, and they published the information we gave them. Some prosecutors also use their own personal social media accounts to help broaden awareness of the “Ten Measures against Corruption”. With regards to the Petrobras case, what lessons can be applied to future investigations?
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in criminal nullity imprisonment to 7 Adjustments 9 Preventive rules. assure return of diverted money. of political parties and Recovery of profits from crimes. criminalization of campaign 8 Liability 10 slush funds. T.M.a.C. were proposed by the Brazilian Federal Prosecution Service
From the Car Wash Case, we were able to learn a lot about how corruption works, meaning the most common ways of paying bribes, and how money-laundering schemes operate. A few methods have been used that can be seen as the pillars of the investigation. Firstly, cooperation or leniency agreements between prosecutors and criminals who are willing to disclose criminal activities and evidence are essential for the success of corruption investigations. Corruption is a crime that remains unknown unless one of the involved parties decides to break the pact of silence. So there must be an incentive for someone to come out and reveal the schemes. Secondly, by learning how money-laundering methods are used. For instance, use of front companies, we are now able to use our databases to pinpoint which payments were based on fake invoices. Thirdly, we heavily relied on international cooperation and direct contacts between prosecutors. We now have over 100 assistance request procedures with over 30 countries and almost daily contact with foreign authorities. Lastly, we have learned to use technology to assist the investigations. We now demand and receive banking and fiscal documentation online. This way we can put all of the databases together to come up with a comprehensive search mechanism. These are some of the features of the investigation that we would suggest be applied in other cases to achieve similar efficiency. Thank you for the interview and all the best for your work.
Facts & Figures “Operation Car Wash“2,3 Operation Car Wash (Operação Lava Jato) is an investigation under the Federal Police of Brazil, Curitiba Branch, initiated on 17 March 2014. It began as a money-laundering investigation but broadened its scope to address alleged corruption practices at the state-controlled oil company Petrobras. Country:
Brazil
Start Date of the Ostensible Investigations:
17 March 2014
Judicial proceedings:
1397
Number of search warrants:
654
Number of Convicted Persons:
106
Amounts of assets frozen:
$689 million
Crimes already charged involve the bribery of around:
$2.1 billion
endnotes 1 http://fcpamericas.com/english/brazil/tenmeasures-proposed-brazilian-federal-prosecutionservice-fight-corruption-part-ii/#. Last accessed: 18 August 2016. 2 https://en.wikipedia.org/wiki/Operation_Car_ Wash#cite_note-opera.C3.A7.C3.A3o-1 and http:// www.ibanet.org/Article/Detail. aspx?ArticleUid=7960b146-65c4-4fc2-bb6ac6fbb434cd16. Last accessed: 18 August 2016. 3 This factsheet was taken from: https://en.wikipedia. org/wiki/Operation_Car_Wash#cite_note-opera.C3. A7.C3.A3o-1 Last accessed: 18 August 2016.
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IACA alumni apple tree
Issue Xii, september 2016
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the
alumni
pin
With the recently concluded trainings at IACA, the Academy’s Alumni Association now counts more than 1,000 individuals from over 140 countries. We are very proud to have breached this four-digit threshold, clearly indicating an ever growing anticorruption alumni community. Our alumni - you - are ambassadors of the organization and fulfil an important role in promoting its work and mandate all over the world through your personal networks, the conferences you attend, and the people you address. In the time of smartphones, staying connected across continents seems as easy as a simple “Like” to express your appreciation of professional developments. Nevertheless, personal connections and face-to-face encounters have an indispensable added value. To facilitate identification among IACA’s alumni around the world, we designed a pin for our alumni that can be proudly worn by IACA’s ambassadors. Those of you who attended the programmes and activities that took place this summer have already received such pins upon finalizing your training. An apple tree represents the IACA Alumni Association and this icon materializes in the IACA Alumni Pin. You will probably wonder why this icon was chosen. The meaning of the apple tree is a unique one for IACA. In 2011, the first Summer Academy programme took place at the current IACA campus, Palais KaunitzWittgenstein in Laxenburg. 70 participants from over 60 countries spent ten intense days at IACA and approached corruption from various angles, ultimately learning about anti-corruption‘s interdisciplinary nature.
We look forward at the end of that Summer Academy, the participants decided to give a present to IACA to show their appreciation and lifelong affiliation with the Academy. They did not opt for a classical gift, but instead decided to give a living present: an apple tree. The tree was planted on IACA’s premises and has been growing ever since. Similar to the Academy, it has branched out, it has grown taller, and each summer it bears more and more fruit. For us at the Academy, this apple tree is the perfect symbol for our alumni network. We look forward to seeing more branches grow, promising blossoms in spring and fruits in summer. The same way the tree is growing, the organization will continue to provide assistance, reaching out and empowering many more alumni in the future. To all alumni, we would like to use this opportunity to thank you again for your dedication, your active engagement, and excellent work as IACA’s ambassadors. We look forward to seeing more join the network and watching our tree grow.
How can I get my Alumni pin? We will be happy to provide you with your Alumni pin at any future Alumni event or IACA training. If you would like to receive your pin even sooner, please send your request to alumni@iaca.int, indicating your postal address and the IACA training that you took part in.
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Is
Corruption
in the Judicial System the Business of Lawyers?
Issue Xii, september 2016
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by Rocio Paniagua O liver
“Judicial corruption can trigger social and political conflict and can fracture and divide communities by keeping alive a sense of injury created by unjust treatment”1.
T
he separation of powers theory was developed by Montesquieu in the 18th century. In the book “The Spirit of the Laws“ of 1748, he argues that the power of major institutions of the state (legislature, executive, and judiciary) should be separated, but with a great deal of cooperation across the institutions. There should also be a system of checks and balances to prevent one branch from attaining too much power. The role of the legislature is to enact the law, the executive to implement it and administer public policy, and the judiciary to interpret the law. This separation of powers is considered necessary for good governance to this day.
The International Covenant on Civil and Political Rights states in Article 14(1) that everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law. For the courts to play their respective part in safeguarding human rights, this specific right must be guaranteed2. Corruption in the judicial system not only jeopardises this essential right, but also endangers the rule of law and erodes public trust in the country where it occurs. Corruption in the judicial system can be especially damaging to society. If a country’s judicial system is affected by corruption, anti-corruption initiatives in the executive and legislature are bound to fail. The judiciary is, by nature of its function, the legal and institutional mechanism through which corruption can be curbed3. A fair, efficient, and transparent
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Rocio Paniagua Oliver (Spain) is a Senior Legal Advisor with the Legal Policy & Research Unit of the International Bar Association (IBA). She completed her law degree at the Universidad Autónoma de Madrid as well as additional law studies at the Roma Tre University (Italy) and the Complutense University of Madrid (Spain), where she obtained a Master’s in International Cooperation for Development. She has previously worked as a Legal Officer in the International Department of the Spanish National Bar Association and in two major reinsurers in London and Dublin. At IBA, Rocio is responsible for planning, promotion, development, management, and execution of IBA’s legal projects in the area of corporate and professional integrity, including anti-corruption, professional ethics and business, and human rights. She attended the IACA Summer Academy 2015.
judiciary is critical for the successful implementation of any anticorruption plan and its respective policies. It is clear that fighting corruption in the judicial system is of utmost importance - but why should this be the business of lawyers? Lawyers are agents of the administration of justice and constitute the judiciary together with judges, litigants, and court personnel4. In considerations of corruption in a judicial system, however, special attention is typically placed on judges because the interpretation of the law relies on them. New research highlights how corruption in the judicial system is found in the malpractice of other actors within the system, showing the extent that lawyers can enable, contribute to, or even cause corruption in the judiciary5. In response, lawyers associations such as the International Bar Association (IBA) have been working to counter corruption within the legal profession and the broader community. In 2015, David W. Rivkin, the President of the IBA, launched the Judicial Integrity Initiative (JII), with the IBA’s Legal Policy & Research Unit (LPRU) responsible for its implementation. The JII has conducted its business in two stages. First among them was a project conducted with the Basel Institute of Governance consisting of the following research activities: zz A global survey totalling 1,577 responses from 120 countries. zz Case studies of Mexico and the Philippines. zz A detailed literature review of corruption in judiciaries.
The purpose of these research activities was to better understand the types of corruption affecting judicial systems and the respective roles of judicial professionals. The outcome of this work was published in May 2016, titled “The International Bar Association Judicial Integrity Initiative: Judicial Systems and Corruption”. Among the most relevant findings are the following6: zz Bribery and undue political influence were reported as the two most frequent forms of corrupt behaviour observed in judicial systems. While bribery is considered to be most prevalent in countries where the rule of law is weak, undue political influence is believed to occur more broadly in countries across the globe. Neither bribery nor undue political influence appear in a uniform way within judicial and governmental structures. zz The impact of public perceptions of corruption in the judiciary is an important and highly-contested topic. The research shows that in countries where political corruption is widespread, the judicial system is likewise perceived to be very corrupt. However, various survey results indicate that overall perceptions of the levels of corruption in the judiciary are low, compared with other branches of public administration. zz Those judicial professionals who are reportedly most involved in corrupt practices tend to be part of the system itself, that is, judges, lawyers, and court personnel. These survey results suggest that those judges who purportedly engage in corrupt conduct do so most frequently in their interactions with lawyers
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Rocio Paniagua Oliver
and other judges. This suggests that such behaviour is predominantly focused on internal interactions within a judicial system as opposed to interactions with the third parties. zz Lawyers interact more frequently with third parties, and thus were reported to frequently serve as intermediaries to influence cases. While the survey data suggests that most corrupt behaviour allegedly involving prosecutors is linked to interactions with other judicial professionals, the risk of third-party influence on prosecutors is comparatively high. zz Lastly, court personnel were more frequently reported to have been approached by external actors rather than actively seeking bribes themselves.
endnotes 1
Transparency International (2007). Global Corruption Report 2007:
Corruption in Judicial Systems. Accessed 25 July 2016 from http:// w w w.transparency.org/whatwedo/publication/global_corruption_ report_ 2007_corruption_ and_ judicial_systems 2
Office of the High Commissioner for Human Rights (2003).
Independence and Impartiality of Judges, Prosecutors and Law yers (Ch. 4 of Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Law yers). Accessed 25 July
The IBA is currently developing the second part of the JII, which will consist of a range of measures to address the kind of practices identified in the report as undermining the effectiveness and legitimacy of the judicial process. Countering corruption in judicial systems needs to be at the top of any national anticorruption agenda. Lawyers are key parties in judicial systems, and must, therefore, take responsibility and join forces with other stakeholders in the fight against corruption. In the IBA we are well aware that this battle cannot be won in isolation. Consequently, we have partnered with the International Association of Judges (IAJ) and will partner with the International Association of Prosecutors (IAP) to overcome this challenge.
2016 from http://w w w.ohchr.org/Documents/Publications/ training9chapter4en.pdf 3
Langseth, P., & Stolpe, O. (2000). Strengthening Judicial Integrity
against Corruption. United Nations Global Programme Against Corruption, CICP-10. Accessed 25 July 2016 from https://w w w.unodc. org/documents/nigeria//publications/Otherpublications/ Strengthening_ Judicial_Integrity_ Against_Corruption_ 2001.pdf 4
Eighth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, Havana, Cuba (1990). Basic Principles on the Role of Law yers. 5
Langseth, P., & Buscaglia, E. (2002). Judicial Integrity and its
Capacity to Enhance the Public Interest. United Nations Office for Drug Control and Crime Prevention, Centre for International Crime Prevention. 6
International Bar Association (2016). IBA Releases New Study
Identifying Types of Corruption Affecting Judicial Systems Globally. Accessed 25 July 2016 from http://w w w.ibanet.org/Article/NewDetail. aspx?ArticleUid=34ec225a-ee67-4d6a-a2e8-b3718c12d347
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IACA
alumni reunited For the third year in a row, IACA’s Alumni came together for the reunion in Laxenburg. Alumni from Austria, Germany, Mexico, Nepal, the Netherlands, Nigeria, the United Kingdom, and the United States of America gathered at the Palais KaunitzWittgenstein on 7 and 8 July 2016. After arrival in Laxenburg, coffee and tea offered the first opportunity for alumni to become reacquainted with one another. Many of them had attended trainings together and used this occasion to catch up and exchange news. The reunion started off with a thought-provoking lecture by Professor Nebojsa Nakicenovic, Deputy Director General/Deputy
Chief Executive Officer of the International Institute for Applied Systems Analysis (IIASA), the other international organization based in Laxenburg. Professor Nakicenovic was deeply involved with the negotiations leading up to the adoption of the Sustainable Development Goals last September and continues to serve on a number of advisory panels on climate change for the UN Secretary-General. Climate change was the topic of his lecture during the reunion. Using a variety of models, he highlighted the consequences of climate change for different regions of the globe. He discussed different proposed techniques for carbon capture and storage as well as their potential downsides, and shed light on the research that IIASA has conducted on the topic.
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On the second day of the reunion, Paulo Roberto Galvão de Carvalho, a federal prosecutor in Brazil, discussed various facets of the Petrobras “Car Wash” case and provided the group with a detailed overview of the case. An interview with him in this issue of IACAlumnus examines the Car Wash case in depth. Professor Peter Eigen, founder of Transparency International, shared his knowledge on good governance, democracy, and development with the attendees. In an intensive Q&A session, participants learned from his vast experience and insight about the changes in the field of anti-corruption, how perceptions have evolved, established actors have shifted their policies, and new actors have entered the arena. To conclude this year’s Alumni Reunion, Ronald MacLean-Abaroa, a former mayor of La Paz, Bolivia, and
Ana Vasilache, Founding President of Partners Foundation for Local Development in Romania, engaged the group in an interactive session on anti-corruption in local governance. As in previous years, the reunion took place during the week of the annual Summer Academy in Laxenburg. Together with close to 80 participants from over 40 countries, alumni not only enjoyed the thematic and networking sessions exclusively tailored for them, but also used the unique opportunity to grow and expand their network with the participants of the Summer Academy.
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2016
IACA
alumni reunited
Issue Xii, september 2016
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26
cross word
4. 1. 2.
7. 3.
6.
8.
Guidelines 1. IACAlumnus Crosswords are open to members of the IACA Alumni Association. 2. The minimum word length is three letters. 3. 1. No individual IACAlumnus Crosswords will contain the same answer twice. 4. IACAlumnus Crosswords are thematic. 2. Emphasis is given to anti-corruption/ corruption, and compliance-related vocabulary. 5. Together with the last issue of the IACAlumnus magazine in a calendar year, 10.from all the a final word will be7.formed letters positioned in the grey cells of Crosswords in that 3. previous IACAlumnus 6. year. 6. To be considered for the IACAlumnus Crossword Award, alumni should send a picture of the last IACAlumnus Crossword containing the final word 8. 9. to alumni@iaca.int no later than 18:00 CET on 31 December 2016. 7. The participant who sent the first email received by IACA with the correct final 11. in word shall be the winner. The decision this regard shall be final. 8. 5. The winner will be announced in the following issue of IACAlumnus where his/ her name, picture, and short biography will be published upon his/her consent and will receive the award.
Good Luck and Enjoy!
10.
9.
11. 5.
Across 2 3 5 8 11
Obedient (Verb) Not Unlawful Moral principles Agreement Anti-corruption legislation (UK)
down 1 4 6 7 9 10
Comply (Noun) Anti-corruption legislation (US) Form of Void International Organization promoting Anti-corruption education and research Firm belief in the reliability of someone Gridlock
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Upcoming conferences 6 sep 2016
21-24 sep 2016
13-14 oct 2016
2016 Corruption Prevention Forum
16th Annual Conference of the European Society of Criminology
5th Annual Anti Bribery & Corruption Forum
Location: Sydney, Australia
Location: Muenster, Germany
Location: London, UK
13-14 oct 2016
17-18 oct 2016
20-21 oct 2016
Netherlands Fraude Film Festival
16th Serbian Economic Summit
Collective Action Conference
Location: Amsterdam, Netherlands
Location: Belgrade, Serbia
Location: Basel, Switzerland
26-27 oct 2016
7-8 nov 2016
1-4 dec 2016
FORUM ANNUEL D‘AFREXIMBANK SUR LA GOUVERNANCE D‘ENTREPRISE
Compliance Week Europe
17th International Anti-Corruption Conference (IACC)
Location: Kigali, Rwanda
Location: Brussels, Belgium
Location: Panama City, Panama
IACA INT
International Anti-Corruption Academy Muenchendorfer Strasse 2 2361 Laxenburg / Vienna Austria T: +43 2236 710 718 100 F: +43 2236 710 718 311 E: mail@iaca.int www.iaca.int