Category: News

Dans son avis écartant du projet de loi Sapin 2 un mécanisme novateur de transaction pénale pour les infractions de corruption, le Conseil d’Etat sermonne le ministre en ces termes :

«… En l’absence de contradiction et de débat public, l’intervention de la justice perd sa valeur d’exemplarité et la recherche de la vérité s’en trouve affectée. »

Le Conseil d’Etat semble donc penser que la justice pénale actuelle, qui ambitionne de mener chaque dossier de corruption devant une audience de jugement, permet « exemplarité » et « recherche de la vérité ».
Pour ceux qui suivent ces affaires, cela fait au mieux sourire.
Les rares affaires qui sont jugées, souvent plus de dix ans après les faits, se terminent par des relaxes ou des peines de prison avec sursis et de faibles amendes. L’exemplarité est nulle. Quant à la vérité, tout le monde a oublié au moment du jugement quels étaient les faits et les protagonistes (s’ils sont encore vivants).

Following the leak of what we’ve now come to know as the Panama Papers, I joined Pascal Saint-Amans, Director of the OECD’s Centre for Tax Policy and Administration, Friederike Röder, France Director of the NGO One and Serge Michel, a journalist at Le Monde, on the TV channel France 24, to share my thoughts about the global impact of this leak.

Here are my four main points:

1. Because of an efficient US tax fraud policy, there are very few Americans included in the Panama Papers.

French newspaper LeMonde addressed this phenomenon in its article – the one I reference in my interview. And The New Yorker also posed this question in its coverage of the Panama Papers, presenting some of the same points.

2. Public registries of companies’ beneficial ownership is not the magic wand some people think it is. Public registrars are not armed to check the information provided to them on such a complex issue as the identity of a beneficial owner. The World Bank STAR initiative took on this topic in its “Puppet Masters” report, to which FraudNet gave its contribution.

3. Companies’ service providers (and this includes law firms) should always have the information about beneficial ownership available. This information should be available on the basis of a judge order for law enforcement as well as for victims of fraud. Law firms, when they act as company service providers, should not abuse legal privilege or confidentiality rules, as in the case of Mossack Fonseca.

4. Finally, I raised the question as to whether whistleblowers should be rewarded as the US legislation provides for.

Watch the two-part debate here:

“Haven Forbid: Panama Papers, how to stop tax dodging?” on France 24

• Part I
• Part II

ICC FraudNet is an international network of independent lawyers who are leading civil asset recovery specialists in each country. Recognized by Chambers Global as the world’s leading asset recovery legal network, our membership extends to every continent and the world’s major economies, as well as leading offshore wealth havens that have complex bank secrecy laws and institutions where the proceeds of fraud often are hidden. Founded in 2004 by the Paris-based International Chamber of Commerce (ICC), the world’s business organization, FraudNet operates under the auspices of the ICC’s London-based Commercial Crime Services unit.

ICC FraudNet is an international network of independent lawyers who are leading civil asset recovery specialists in each country. Recognized by Chambers Global as the world’s leading asset recovery legal network, our membership extends to every continent and the world’s major economies, as well as leading offshore wealth havens that have complex bank secrecy laws and institutions where the proceeds of fraud often are hidden. Founded in 2004 by the Paris-based International Chamber of Commerce (ICC), the world’s business organization, FraudNet operates under the auspices of the ICC’s London-based Commercial Crime Services unit.

 

I was honoured to be invited by the Italy Commission of the Paris Bar Association to speak in February at its presentation about the evolution of criminal justice in Italy and France over the past 20 years. I, along with Renaud Van Ruymbeke, First Vice President of the Tribunal de grande instance of Paris, and Lorenzo Salazar, Assistant Attorney General at the Naples Court of Appeal, helped demonstrate some important differences between trying a case in Italy versus trying a case in France. The event was moderated by Martina Barcaroli, head of the Italy Commission of the Paris Bar and Giandomenico Magliano, the Italian ambassador in France.

My presentation focused on one main point of comparison—the statutory independence of Prosecutors in Italy. One of the major differences between French and Italian criminal systems is that Prosecutors in Italy have an independent status, while, in France, Prosecutors are under the hierarchy of the Ministry of Justice. I noted that the independent status of Italian Prosecutors, viewed as a model by many in France, raises the question of democratic control over their activity.

I stressed that the statutory independence of Prosecutors, per se, does not produce effective criminal justice in economic and financial matters, and it can be quite the opposite. Even Mr. Salazar admitted that this independence was the source of some “anarchy” in the application of laws in Italy.

In countries, like the United States and Germany, where the fight against international corruption is most effective nowadays, Prosecutors don’t have an independent status, but are clearly considered as being part of the Executive Branch of government. In Italy, however, they are considered as being part of the Judiciary Branch. In the competition between criminal enforcement authorities in economic and financial matters, both Italian and French authorities were losing out. U.S. Prosecutors led the way, particularly through the use of pleas or DPAs, including against French and Italian companies severely sanctioned in the U.S.

Finally, Italian criminal justice chose to abandon the inquisitorial system with investigating judges in favour of the adversarial system. While this shift might be possible in France, I stated that the Italian experience needs to be examined more carefully to retain its positive attributes and to avoid any negative consequences, like the length of trials in Italy.

Thank you to Le Monde for providing the platform that allowed me to expose the French government’s lenience in international corruption cases. Your recognition of the opinions of citizens like myself is a reminder of the importance of a free press, and that our voices matter.

http://www.lemonde.fr/idees/article/2015/03/26/l-incantatoire-lutte-contre-la-corruption-de-christiane-taubira_4602213_3232.html?xtmc=l_incantatoire_lutte&xtcr=2”

In the midst of agonizing media coverage of international terrorism, a massive flow of refugees into Europe and the shifting sands of politics around the world, government fraud and corruption managed to make news in 2015. It was the year of governments living dangerously as enormous frauds crippled economies, burdened already beleaguered taxpayers and all but destroyed trust in government and political leadership in some countries.

Although it may not be clear whether instances of government fraud are actually increasing, we do know that the size, scope and complexity has grown over the years. As citizens of a global economy, we also recognize that sooner or later, we all feel the ripple effect.

What do these crimes in far flung parts of the world have in common? A look at the economic tragedies in Moldova, Guatemala and Brazil — three of the largest, most complex cases that made headlines in 2015 – reveals some common themes and potential strategies.

They did not occur over night. The participants were all part of a system that not only allowed, but enabled fraud to take place on a large scale. While the bulk of the fallout may have happened in 2015, these schemes had been operating or were in the planning stages for years.

The governments of Moldova and Brazil were entangled with another enormous entity with strong ties to government. In Moldova, it was the banking system. In Brazil, it was Petrobras, the government oil company. In Guatemala, the business of politics and fundraising was so intertwined with government that the process was corrupt, lacking a strong enough system of checks and balances.

In all three cases, there was a history of corruption, not enough oversight and inadequate strategies and enforcement in place to protect the government and taxpayers. All three countries also include large numbers of poor and working poor with much to lose.

Immediate action to address these weak links must include aggressive efforts to recover hundreds of millions in stolen assets that rightly belong to taxpayers. Amidst the news of potentially crippling financial frauds, there is good news. Earlier this year, after 16 years of negotiations, a deal was reached in which Switzerland agreed to give Nigeria U.S. $380 million, allegedly stolen by the former military dictator Sani Abacha and stored in European bank accounts. In addition, asset recovery professionals won a landmark court victory in 2015 in the UK in the largest corruption and asset recovery case ever undertaken by the Municipality of Sao Paulo and the government of Brazil outside of Brazil.  The judgment, which will have a significant effect on the law of civil fraud internationally, entitles the government to U.S.$28 million.

As the sagas continue, here’s both an update and a look back at three of the largest government corruption scandals of the year.

Moldova

A billion dollar bank fraud was discovered in the former Soviet Republic of Moldova, estimated to be about 15 percent of the country’s GDP. The fraud cleaned out three of the country’s banks, and plunged Moldova, already the poorest country in Europe, into recession. A huge bailout rescued the banks, but at the hefty price of a half of the country’s annual budget.

Since the scandal broke, the government has been on the verge of collapse with a rapid fall in the value of the leu, the national currency, and a steep rise in the cost of living. Thousands have taken to the streets to protest, calling for the resignations of government leaders. Earlier this month, Moldova’s former Prime Minister Vlad Filat was arrested and detained on charges of theft of Moldova’s money from Banca de Economii.  Analysts fear that with political parties in disarray, Russia may take control.  Read full post.

Stéphane Bonifassi, of Lebray & Associés, specializes in representing victims of fraud, and is the executive director of ICC FraudNet. Named one of the world’s Most Highly Regarded Individuals by Who’s Who Legal: Asset Recovery 2015, he is the former president of the criminal law commission of the International Association of Lawyers (UIA) and the former chair of the business crime committee of the International Bar Association (IBA). Bonifassi regularly speaks and writes about issues including corruption, fraud, asset recovery and mutual legal assistance. He contributed to the book, Asset Tracing & Recovery: the FraudNet World Compendium, and his article The Long Arm of the Law – Obtaining Jurisdiction and Evidence in France, was published in International Legal Practitioner.

ICC FraudNet is an international network of independent lawyers who are leading civil asset recovery specialists in each country. Recognized by Chambers Global as the world’s leading asset recovery legal network, our membership extends to every continent and the world’s major economies, as well as leading offshore wealth havens that have complex bank secrecy laws and institutions where the proceeds of fraud often are hidden. Founded in 2004 by the Paris-based International Chamber of Commerce (ICC), the world’s business organization, FraudNet operates under the auspices of the ICC’s London-based Commercial Crime Services unit.

If you are reading this, chances are you have been affected by international corruption. Because this type of fraud occurs in the shadows in the form of bribery and other financial crime — and it happens to corporations and governments rather than individuals — the problem generally fails to arouse media attention or public anger sufficient to facilitate change. People know it’s a problem, but it’s not personal.

However, those of in the field of asset recovery understand that we are all ultimately victims of these crimes. Just how big is the problem? This month at ICC FraudNet’s annual conference, held this year in Vienna, one of our featured speakers, Martin Kreutner, executive secretary of the International Anti-Corruption Academy (IACA) based in Laxenburg, Austria, shared some sobering statistics – even to me and our members who tackle fraud around the world every day.

An estimated $1 trillion dollars is paid in bribes every year around the world, Kreutner said, resulting in significant losses to governments. In some African countries, bribes accounted for losses of up to 25 percent of the GDP, while in Asia the number was close to 17 percent. In Europe, the figure is estimated at between 5 to 10 percent of the GDP. Given our global economy, the effects are also global, including public discontent. The latest Eurobarometer survey found that about 76 percent of Europeans believe corruption in government is widespread, and more than half believe it has increased in their own countries. Not only Europeans are distrustful of their government. In the U.S., according to a recent Gallup poll, about 75 percent of Americans believe corruption in the government is widespread.

Kreutner was just one of the experts who addressed ICC FraudNet members at the conference, and participated in panel discussions focused on fraud trends and strategies we use to help victims recover their assets and hopefully a sense of well-being. The purpose of the event is to increase worldwide cooperation in the fight for fair competition and a business environment free of corruption and fraud. For example the keynote speaker was Elena Panfilova, vice chair of Transparency International (TI) and the chair of TI Russia, whose speech included information about tracing property in foreign jurisdictions.

Read the full post.

Stéphane Bonifassi, of Lebray & Associés, specializes in representing victims of fraud, and is the executive director of ICC FraudNet. Regarded as a Most Highly Individual by WhosWhoLegal: Asset Recovery 2015, he is the former president of the criminal law commission of the International Association of Lawyers (UIA) and the former chair of the business crime committee of the International Bar Association (IBA). Bonifassi regularly speaks and writes about issues including corruption, fraud, asset recovery and mutual legal assistance. He contributed to the book, Asset Tracing & Recovery: the FraudNet World Compendium, and his article The Long Arm of the Law – Obtaining Jurisdiction and Evidence in France, was published inInternational Legal Practitioner.

ICC FraudNet is an international network of independent lawyers who are leading civil asset recovery specialists in each country. Recognized by Chambers Global as the world’s leading asset recovery legal network, our membership extends to every continent and the world’s major economies, as well as leading offshore wealth havens that have complex bank secrecy laws and institutions where the proceeds of fraud often are hidden. Founded in 2004 by the Paris-based International Chamber of Commerce (ICC), the world’s business organization, FraudNet operates under the auspices of the ICC’s London-based Commercial Crime Services unit.