Before that, the operations of this kind had been conducted by the Agency under Clause 30 of the Rules of the CIAA, 2059 (2002) according to which the CIAA could provide bribes to public officials through its own employee or the person from whom the bribe had been asked during the process of investigation.
This kind of exposure of corrupt practices was widespread in Nepal. For instance, 181 out of the CIAA’s 206 bribery cases filed last financial year to the Special Court, autorised to try, among other things, bribery and other State crimes initiated by the CIAA, involved sting operations. It also reported that those cases regarded not only big bribes: over half of those cases involved petty corruption of under Rs25,000 (roughly $200).
The Supreme Court ruled that the CIAA’s powers to conduct sting operations were not provided for by legal acts and consequently were unlawful. From now on all bribery cases initiated due to such operations may be considered void and the accused public officials may be set free from prosecution: the ruling is expected to result in the dismissal of over 400 pending or ongoing bribery cases.
On the one hand, the decision of the Supreme Court is aimed at preventing the abuse of sting operations by law enforcement authorities in order to improve the corruption crime-solving statistics by “constructing” cases of petty corruption. On the other hand, the opponents of the ruling of the Supreme Court point out that it can decrease the effectiveness of anti-corruption campaign at least because unscrupulous public officials will not be afraid of falling into the trap of law enforcement officers any more.
Admissibility and the limits to the employment of sting operations to counter corruption have been the subject of a heated debate* for a long time. This matter is also addressed in different ways by countries at the level of domestic legislation.
Some countries, the United States in the first place, rely heavily on sting operations also in the fight against corruption: a number of well-known anti-corruption operations such as ABSCAM and Greylord were based on sting operations carried out by the law enforcement authorities; the creation of conditions for corruption offences is a key component of the so-called integrity checks actively employed within anti-corruption reforms in police bodies, in particular, in the New York City Police Department; sting operations were also conducted even in the framework of some journalistic investigations, for instance, in the implementation of the Mirage project.
At the same time, most countries are rather cautious about using undercover operations to expose corruption crimes: in many cases, in Russia and in Kazakhstan for instance, sting operations in bribery cases are directly prohibited by the criminal legislation; the European Court of Human Rights is also opposed to the undercover operations.
Such ambivalent attitude towards sting operations as a method to counter corruption is in large part due to the fact that they are rather controversial from ethical point of view even if they provide the law enforcement authorities with additional instruments to detect unscrupulous officials.
On the one hand, undercover operations: 1) make it possible to detect and prove the presence of corruption networks and corrupt practices, whereas it is hard to obtain reliable information about their existence in other ways; 2) provide the possibility to expose the officials that can infringe anti-corruption restrictions and prohibitions for the sake of a personal gain; and 3) have preventative effect causing mistrust of unscrupulous officials to the offers of corrupt interactions, because they may be in fact disguised sting operations. This is why even the countries that directly prohibit undercover operations in the cases of corruption crimes often do not preclude the possibility of conducting police operations that can be very close in their substance to sting operations such as staged experimental operations.
On the other hand, an entrapment means that it was in a way “staged” by law enforcement bodies. An official who does not exclude the possibility to abuse his functions for personal advantage, could not have made up his mind whether to commit a corruption crime because of remorse, the fear of being detected, inability to create an effective corruption scheme or for other reasons. As a result, without an agent provocateur who “helps” the hesitating official to overcome these obstacles the crime could not have taken place.
This is one of the reasons why even in the United States that in principle admits the possibility to conduct sting operations their employment is considerably limited by many rules. Moreover, the person accused of committing a crime as a result of a proactive investigation may count on an exemption from liability if during the court proceedings it is proved that either he did not have the intention to commit the crime and was induced to do so by officials or law enforcement officers committed inappropriate actions throughout the proactive investigation, for instance they pressurised the accused too much. This kind of legal protection is called entrapment defence.
In addition, it should be stressed that the employment of sting operations does not necessarily guarantee a conviction. In the United States for instance, courts quite often rule against the law enforcement bodies. For example, the Africa Sting, the most important undercover operation in the history of the enforcement of the US Foreign Corrupt Practices Act (FCPA), concluded with a heavy defeat of the law enforcement authorities: all the accused on trial (the operation resulted in the arrest of 22 persons in total) were acquitted or exempt from liability.
*In particular, the issues regarding the use of sting operations to prevent and detect crimes, including corruption ones, are addressed in many scholarly publications; the section Publications of this Portal has a separate subsection containing an updated bibliography on this topic.
