The paper stresses that due to the COVID-19 pandemic many countries introduced restrictions that considerably complicated the work of law enforcement bodies. In particular, the special investigation regimes often led to delays due to the change in priorities in relevant authorities, reduced possibilities for personal contacts, breaks in work of a number of public bodies and limited international cooperation.
At the same time, the number of certain corruption offences such as active and passive bribery, abuse of functions in public procurement, provision of support, issuance of vaccination certificates etc. increased.
The OECD has analysed the specific characteristics of corruption interactions in the COVID-19 pandemic and put forward recommendations for governments on countering corruption in emergencies.
1. Prevention of corruption offences
In order to counter corruption in emergency situations, the authors of the paper suggest beginning with detecting and structuring corruption risks and define the measures for mitigating the negative consequences.
Additionally, it is necessary to take into consideration the experience gained from previous emergencies. As regards the COVID-19 pandemic, the risks can be divided into the following categories:
- Situational: governmental response to the emergency, e.g. emergency procurement procedures, expansion of social security, and reallocation of resources;
- Operational: the ability of law enforcement to conduct their core activities in detecting, investigating and prosecuting criminal offences, including corruption, due to restrictions imposed by the emergency; and
- Specific: the risks arising from the combination of situational and operational risks.
2. Detection of corruption offences
In order to enhance the effectiveness of detection of corruption offences by law enforcement authorities, it is recommended using different sources of information such as:
- Criminal intelligence information. The processes for gathering human intelligence is to be reviewed to minimise the risks arising from the emergency while ensuring the safety of officers;
- Financial intelligence information. The utility of these data in emergencies can be increased by requesting financial intelligence units (FIUs) to prepare analyses that guide the emerging patterns of criminality resulting from the emergency and using them for adapting detection of corrupt practices. In the Netherlands for instance, the FIU communicated COVID-19-fraud-specific indicators, description of the offences detected and a list of prevention measures through a newsletter;
- Information received through other inter-agency co-operation channels. To ensure this kind of cooperation, the authors of the guidelines point to the necessity to define which bodies/other entities can dispose of the information relevant for law enforcement (interagency working groups, tax authorities, supreme audit institutions, internal auditors, public procurement units, and divisions that collect, store and process asset declarations), determine and eliminate restrictions that relevant bodies and other entities may face in their cooperation, and adapt the existing and design new platforms for interagency interaction in eliminating emergencies’ consequences. In Kazakhstan for instance, thanks to cooperation between law enforcement authorities and public procurement units a corruption scheme, in which the director of a morgue was involved in misappropriation of funds allocated to purchasing vehicles to transport biological waste, was unveiled;
- Information received from investigative journalists, the media and social networks. To ensure an effective use of relevant sources, it is recommended to adopt measures for proactive media monitoring and enhanced cooperation with the media to ensure timely receipt of information on alleged corruption and adoption of corrective measures;
- Whistleblowers’ reports. In Honduras for example, a criminal conspiracy to purchase mobile hospitals was detected thanks to the analysis of complaints from patients, representatives of civil society organisations and medical workers. In order to enhance the efficiency of reporting, the authors of the guidelines recommend that governments 1) raise awareness of civil servants and the general public about the existing whistleblowing and reporting mechanisms; 2) develop and implement or update legislation to ensure protection of whistleblowers; and 3) develop the channels that allow the public to submit complaints online and anonymously; that law enforcement authorities establish reporting channels enabling the public to make complaints or report suspected corruption related to the emergency; and that the private sector actors raise awareness among employees on the whistleblowing mechanisms available to them to report suspicions of corruption.
- Information from the private sector (for example, from accountants and internal auditors). The guidelines state that in order to ensure the participation of these actors in the fight against corruption in emergencies, it is necessary to update internal control systems with regard to the work of auditing groups and conduct self-assessment and anti-corruption audit to mitigate corruption risks in the supply chain and undertakings of the private sector enterprises in general;
- Information on integrity testing of civil servants. In emergencies in particular, such testing can cover the servants whose duties imply the elimination of consequences of the emergency.
3. Investigation and prosecution for corruption
The guidelines stress that investigation and prosecution for corruption in emergency situations can be hampered by a variety of delays that can lead, in particular, to the loss of evidence, violation of procedural deadlines, statutes of limitation etc.
In order to preserve the effectiveness of law enforcement, the OECD recommends that law enforcement authorities:
- Review case prioritisation to ensure it is aligned with the emergency-related risks;
- Collect intelligence information and other open source data;
- Conclude or revisit the existing agreements on provision of information by providers of online-services to ensure integrity of electronic evidence;
- Conduct analysis of special investigative techniques, determine their relevance for priority investigations in emergencies and, where appropriate, update respective procedures and adopt measures to ensure the safety of law enforcement officers involved in emergencies;
- Decide which forensic examinations are necessary as early as at the stage of investigation planning, taking into consideration the character of the emergency and corruption risks associated with it;
- Involve special forensic experts in specific offences related to emergencies, especially if such experts are not staff members;
- Exchange experience with domestic and foreign partners on investigation and prosecution in emergencies;
- Formulate recommendations for investigators and prosecutors on how to prioritise cases in emergencies and effectively use cooperation agreements;
- Promote the use of secure telecommunication or videoconferencing facilities to interact with the accused, their lawyers and witnesses;
- Review communication and public relations strategies to be able to counter illicit pressure and influencing attempts;
- Take measures to ensure that investigators and prosecutors are safe from possible pressure from their superiors such as disciplinary measures or other similar retaliation;
- Foresee, if necessary, changes in the mode of operation of employees to ensure continuity of their activities and implementation of protection measures.
Governments that affect the effectiveness of law enforcement performance are given the following recommendations by the authors of the guidelines:
- Establish databases indicating beneficial ownership information and make them available to law enforcement authorities;
- Maintain up-to-date lists of politically exposed persons accessible to law enforcement authorities;
- Assess the impact of the emergency on pre-trial and trial proceedings and identify mitigating measures;
- Enable courts to conduct proceedings virtually during an emergency, to ensure business continuity;
- Take steps to digitalise cases and upgrade court management systems to enable court filings, the storage and transfer of information and evidence in digital format;
- Suspend or extend procedural timelines and statutes of limitation, where appropriate, to allow for proper investigation and prosecution of alleged corruption cases in emergencies;
- Establish a comprehensive legal framework to enable witness co-operation, plea agreements and non-trial resolutions in corruption cases;
- Provide dedicated resources for law enforcement to ensure the continuity of ongoing co-operation agreement-based procedures;
- Ensure that witness protection programs have suitable funding to continue operating during emergencies;
- Ensure that the seizure and confiscation regime is effective to deal with the specific corruption-related risks identified during the emergency and is applied in practice;
- Provide adequate resources to law enforcement and judicial authorities dealing with high-profile corruption cases;
- Review the legal framework of public immunities with the view of ensuring that immunities do not pose an obstacle to effective investigation and prosecution of high-profile corruption cases;
- Develop guidelines on the use of new technological solutions in law enforcement, such as remote interviewing, videoconferencing, remote work etc.
4. International cooperation
The OECD highlights in the guidelines that investigation of corruption offences, including in emergency situations, often go beyond the jurisdiction of one country. As a consequence, law enforcement authorities seek international cooperation.
In conducting such cooperation in emergency situations, it is recommended that law enforcement authorities:
- Conclude memoranda of understanding with international financial institutions integrity and investigative units to accelerate investigations and facilitate information exchange;
- Use the international FIUs’ platform to exchange operative information;
- Enhance the use of law enforcement and criminal justice cooperation platforms (for example, the International Anti-Corruption Co-ordination Centre platform) and designate focal points responsible for relevant activities;
- Use secure communication channels to forward information and evidence;
- Give priority to mutual legal assistance (MLA) requests in emergencies;
- Assess the risks associated with emergencies for conflicts of jurisdictions in joint investigations and decide how to minimise such impact;
- Evaluate the necessity and scope of international co-operation in cases involving multiple jurisdictions, especially the mutual exchange of information and evidence, co-ordination of investigative steps and measures and considering closer co-operation in the form of parallel or joint investigation. For example in 2018, Denmark initiated an investigation into bribery of a Danish company engaged in the construction of a power plant in Mauritius; in 2020, the Independent Commission Against Corruption joined the investigation. Moreover, it not only launched its own investigation, but also initiated the establishment of a joint investigation group together with Denmark, which made it possible to collect an important body of evidence and arrest the individuals involved in the crime;
- Contact foreign counterparts as soon as possible to clearly explain the urgency of the case during an emergency;
- Organise co-ordination meetings among the members of parallel or joint investigations through secure online communication channels;
- Determine the most effective manner of implementing requests seeking to seize or confiscate assets during emergencies.
It is recommended that governments:
- Accept MLA and extradition requests through electronic communication channels;
- Ensure the possibility of hearings via videoconferencing. In Nigeria for instance, certain hearings concerning extradition, were successfully held on an online platform.