José Lopes da Mota Deputy Prosecutor General Former President of Eurojust

Transcription

1 * José Lopes da Mota Deputy Prosecutor General Former President of Eurojust 1

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3 Fraud and corruption in health care recognised as a global problem Different players (persons, companies, entities) Acting in different places Different connected actions Preparation, organisation, planning, execution, appropriation of assets, laundering of crime proceeds In different countries no borders Cross border links 3

4 International activities v. National responsibilities A filter impunity Fighting crime: a task for the States How to be effective? The challenge The chain : Intelligence (information) Reporting Investigation Prosecution Trial Assets recovery Fighting international crime requires coordinated international action of national authorities International cooperation Rule of law, fair trial, fundamental rights (European Convention on Human Rights, UN Covenant on Civil and Political Rights) 4

5 Criminalisation which crime? Nullum crimen sine lege Common crime definition by national legislations Double criminality principle Establishment of national jurisdiction National law shall apply Who is competent to do what? (Not me!) At local level, where facts are committed, measures are taken Territoriality principle Natural judge principle 5

6 Police cooperation police channels Mainly exchange of information Judicial cooperation Police channels (Interpol, Europol, Sirene-SIS) Judicial channels (direct contacts; EJN, Eurojust EU) Central authorities (Administration, Ministries of Justice) Diplomatic channels (embassies, Foreign Affairs Ministries) Evolution: from request to mutual recognition Requesting country (authority) Requested country (authority) Issuing judicial authority Executing judicial authority (EU) 6

7 Collection of evidences (investigation) Mutual legal assistance (MLA) Identification, freezing, seizure, confiscation, recovery of proceeds of crime Restitution Extradition (surrender) of criminals Protection of witnesses Transfer (concentration) of proceedings 7

8 Global level United Nations Convention against Transnational Organized Crime ( Palermo Convention, 2000) 186 States Parties Convention against Corruption ( Merida Convention, 2003) 178 States Parties OECD (Organisation for Economic Cooperation and Development) Convention on Combating Bribery of Foreign Officials in International Business Transactions (1997) 41 States 8

9 Council of Europe Criminal Law Convention on Corruption (1999) 45 States Additional Protocol to the Convention (2003) 41 States Civil Law Convention on Corruption (1999) 35 States 9

10 European Union Convention on the fight against corruption involving officials of the European Union or officials of the Member States (1997) Corruption on the private sector Framework Decision 2003/568/JHA Convention on the Protection of the European Communities financial interests (1995) and Protocols (1996, 1997) 10

11 United Nations and Council of Europe UN Convention against Transnational Organised Crime (2000) Council of Europe Convention on Mutual Legal Assistance (1959) and its additional Protocols (1978, 2001) Council of Europe Convention on Extradition (1957) and its additional Protocols (1975, 1978) European Union Conventions on Extradition (1995, 1996) Council of Europe Convention on Transfer of Proceedings in Criminal Matters (1972) Council of Europe Conventions on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990, 2005) 11

12 European Union Convention on Mutual Legal Assistance (2000) and its additional Protocol (2001) Framework Decision on Joint Investigation Teams (2002/465/JHA) Framework Decision on the European Arrest Warrant (2002/584/JHA) Framework Decision 2003/577/JHA on the execution in the European Union of orders freezing property or evidence Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to confiscation orders 12

13 European Union (cont.) Council Framework Decision 2006/960/JHA simplifying the exchange of information and intelligence between law enforcement authorities of the EU Member States Decision 2007/845/JHA cooperation between Asset Recovery Offices of the Member States in the field of tracing and identification of proceeds from, or other property related to, crime Framework Decision 2008/841/JHA on the fight against organised crime Directive 2014/41/UE regarding the European Investigation Order Directive 2014/42/UE on the freezing and confiscation of instrumentalities and proceeds of crime (replacing FD 2001/500/JHA and 2005/212/JHA) 13

14 OLAF European Anti Fraud Office (Commission) Administrative investigations of fraud and corruption affecting EU financial interests EUROPOL European Police Office Police/law enforcement cooperation EJN European Judicial Network Judicial cooperation facilitation/direct contacts Contact points in Member States/legal information EUROJUST EU Judicial Cooperation Body Coordination /support Cross border, serious, organised crime 14

15 Active and passive bribery Of domestic and foreign public officials Of parliamentarians and members of international parliamentary assemblies Of domestic, foreign and international judges and officials of international courts In the private sector Active and passive trading in influence Money laundering of proceeds from corruption offences Accounting offences (invoices, accounting documents etc) connected with corruption offences Obstruction of justice, illicit enrichment, embezzlement Organised crime, cross border crime 15

16 MLA (Mutual legal assistance) in general and in particular Taking evidence or statements from persons (including videoconference) Executing searches and seizures, and freezing Examining objects and sites Providing information, evidentiary items and expert evaluations Providing originals or certified copies of relevant documents and records, including government, bank, financial, corporate or business records Identifying or tracing proceeds of crime, property, instrumentalities or other things for evidentiary purposes 16

17 Joint investigations Spontaneous exchange of information Special investigative techniques Controlled deliveries Electronic and other forms of surveillance Undercover operations Interception of telecommunications Information on and monitoring of banking transactions Access to bank accounts 17

18 Confiscation measures Instrumentalities and proceeds or property the value of which corresponds to such proceeds and laundered property Financial Intelligence Units (FIU) Monitor, analysis and report suspicious transactions (money laundering) Exchange of information Asset Recovery Offices Facilitation of tracing and identification of proceeds of crime and other crime related property which may become the object of a freezing, seizure or confiscation order 18

19 A comprehensive detailed set of legal instruments and tools for international cooperation against fraud and corruption is available A need for a specific instrument on health fraud and corruption? Filling the gap law in the books vs. law in action Which role for national official bodies and entities and NGOs? Prevention, reporting, administrative investigations Support, assistance and expertise to competent authorities dealing with investigations and prosecutions Cooperation with competent authorities (National, EU) 19

20 Thank you! Obrigado! 20