 I'm the CEO of Transparency International Australia and I'm absolutely delighted to be moderating this session, a very important session on how foreign bribery undermines democracy and human rights and why enforcement is needed and victims' rights should be recognised. I'm joining this call from Melbourne, Australia and I'd like to start by acknowledging the traditional owners and custodians of the land that I'm on. This is the Wurundjeri people and peoples of the Kulin nations and I pay my respects to Elders past, present and emerging. Our discussion today is really very timely to kickstart the Summit for Democracy but also in recognition of International Anti-Corruption Day just around the corner on the 9th of December and International Human Rights Day on the 10th of December. Bribery and corruption is not a victimless crime and too often it's the most marginalised people and communities that are disproportionately impacted, particularly women, girls and indigenous peoples. And so after my almost 30 year career working to improve responsible business conduct, integrity and good governance, there is no doubt in my mind that corruption and human rights violations frequently go hand in hand. And in recognition of that, the discussion that we're about to have is really going to put a spotlight on the negative impact that foreign bribery has on democracy but also on civil, political, economic, social and cultural rights. And so I'm delighted to be joined by this stellar panel and together we're going to consider some of the data on foreign bribery enforcement, some case examples on the harm caused to victims and how this could and should be addressed and compensated for in foreign bribery proceedings. So to help set the scene, Transparency International's well-known and famous Exporting Corruption Report, the most recent one in 2020, found that only four of 47 countries that we looked at, which did include 43 of the 44 parties to the OECD anti-bribery convention, are actively enforcing against foreign bribery. So it's only four out of 47, an incredibly low number. And further, many of the cases confirmed that bribes are in fact being paid to high-level officials and political parties, which of course undermines democracy in the most fundamental ways. So how are we going to run the event? Well, firstly, I will let you know that we are actually going to be recording this session, so I hope that's okay with all of you, but just a note in terms of your responses, the event is being recorded. We're going to start with two questions to each panelist, and I will need to be tough on time. So if you see me holding my hand up at this, fellow panelists, that's a warning, that you really need to wind up that response. And then this will be followed by a Q&A session. So for all of those of us joining the call, please use the chat function to write your question, and if it is to a specific panelist, pop that in there as well. And then I'll moderate those questions. So to begin with, it's my great pleasure to introduce our first panelist, Drago Koss. Drago is chair of the OECD Working Group on bribery, which of course monitors states compliance with obligations in line with the OECD Anti-Bribery Convention. And just by way of update, recently the OECD Working Group on bribery held some pretty difficult discussions on the issue of victims' rights in foreign bribery proceedings as part of an update to the OECD Anti-Bribery Recommendation. And that update was adopted by the OECD Council in November. I think it's fair to say regrettably, certainly from the point of view of Transparency International, the nays did win that day, and victims' rights were not included. But it is worth noting that the preambulance of the OECD OECD recommendation, the harmful effects caused by foreign bribery, and considers the importance of effectively combating foreign bribery in order to assess, address, and prevent those effects on society. But it doesn't go far enough in our view. Drago has a distinguished record of international public service. He's a past chair of the Joint Independent Anti-Corruption Monitoring and Evaluation Committee in Afghanistan, and past chair of the group of states against corruption. And interestingly, in his home country, Slovenia, Drago was the first chair of the Commission for the Prevention of Corruption, and also a FIFA UEFA referee, and is still a referee observer, which I was very interested to learn. So Drago, over to you. Firstly, based on your experience, is foreign bribery really damaging the levels of democracy, which really is part of the premise for our meeting today? Well, thank you, Serena, and let's say best regards to everybody online. Now, I would not thank you for opening my wounds again on their accommodation, on the issue of the victims, but you see here in the working group on bribery, we really deal with many different cases of where, let's say, bribe payers from one country were paying the bribes to individuals in other countries, sometimes even the guys at the top. And we know, you know, in general terms, we always say that corruption is destroying the democracy from within itself. And since this is what we're dealing with is the foreign bribery, it's even more dangerous than the domestic corruption due to the fact that the bribe payers usually do not take care about the consequences of their bribes in those countries. And we have a numerous number of cases, let's say, when we see that countries which have already achieved something in the fight against foreign bribery started to go backwards. Some of them are not going backwards, I would say they're running backwards. And this all has consequences on the level of democracy there. We see lately that there is a very direct link between the willingness of countries to fight not only domestic but also foreign corruption and the level of democracy there. Unfortunately, in the last year, we see the increasing number of countries where the so-called autocratic regimes, which do not care too much about the human rights and liberties, they do not care too much about the democratic values are gaining, let's say, the importance. And we have more and more of them in the group, but also outside of the group. What is especially dangerous when we discuss the effects of foreign bribery in, let's say, some countries is the fact that if the individuals who are receiving bribes want to conceal this fact, especially if they want to conceal the consequences of the bribes, which usually goes in favor of foreigners, then they are forced to use much more brutal ways concealing their deeds, including completely neglecting or even directly misusing democratic processes in their countries. We see in some of our member states, let's say that really it doesn't take much that all the safeguards or, let's say, the established practices which have been brought in cumbersome for many years can disappear in the number of, let's say, the number of weeks, if not days. It just depends who is the person at the top. So we are forced to use more and more our famous Article 5, which is, let's say, basically asking countries to follow the rule of law when fighting foreign bribery without any exceptions. But I would say that without strong reaction from the side of the group, but also from the side of the whole international community, I'm afraid that for some years situation will get even worse and we have everything possible what we can do to prevent this from happening because otherwise we will see even more democracies scrambling because of different issues, but also because of bribery, because the bribe payers are misusing the current situation at a large extent. Well, that's a fairly gloomy picture you've painted for us there. Just as a follow-up, I wonder if you could comment on the extent to which you've seen victims actually being compensated for harm caused by foreign bribery and whether or not you've seen any changes in the confiscation angle in terms of the proceeds of foreign bribery being confiscated? Well, since you mentioned already at the beginning that we did not manage to introduce concrete provisions on protecting the victims, you can imagine that there's also nothing in either the convention or the 2009 recommendation which would help the victims. So we do not enter those discussions very often in the working group on bribery. We hear from time to time when countries, let's say, explain the cases where they were really doing things to assist the victims. But can you still hear me? Yes, I can hear you, but you have disappeared from my screen. But I can certainly hear you. So I think press on, Drago. Well, I will try to get back. Yeah, well, so as I said, we don't have many cases where countries would explain even formally or even informally that they have assisted victims. We hear from time to time cases where countries are complaining that the funds we should be sent back to countries which have been damaged by corruption have been again used by the by the corruptors and that the problem for countries have to, let's say, to reestablish or, let's say, to make it absolutely impossible for the corrupt guys from whom the assets have been confiscated that they will not get the exactly some assets back. I do recognize that this is a threat, that this is a challenge. But I still think that this threat is not thrown up that we will simply avoid compensating the victims. So what we have to do is we have to precisely find procedures. How should we deal with those compensations and not forget the compensation? And speaking with countries which are which have some experience in this area, I have to say it is possible. They all recognize that. But there is a bigger problem, which I see the bigger problem is that simply sometimes they don't want to do it. And this will be, let's say, the the the most hardest nut we will have to crack. So it's not so much about technicalities of returning the confiscated assets back to the victims. It is about how to convince the countries which are confiscating those assets that they will do it. Of course, we have a country which are willing to do it. We have countries which are doing doing it on a regular basis, but nobody wants to let's say nobody wants to get very popular because of that, because everybody is afraid that they will be facing even more requests for compensation. So it is a thin line. But again, I'm confident that we can find solutions. Great. And I'm glad glad you still have optimism around this. And I certainly concur with you that political will is a very hard nut to crack. Our next panelist. So thank you, Drago. Our next panelist, Anita Ramasastri, has been really making a difference throughout her international career. And Anita brings a business and human rights perspective to our discussion. Anita is the Henry M. Jackson Professor of Law and Director of Graduate Program in Sustainable International Development at the University of Washington. And she is the immediate past chair and still current member of the UN Working Group on Business and Human Rights. And in that working group, she leads the work stream that really integrates the two aspects of both responsible business conduct and preventing corruption and ensuring respect for human rights. So, Anita, welcome. Anita, you've heard what what Drago's had to say. What do the UN guiding principles on business and human rights and indeed the agenda of the working group? Tell us about state and multi national obligations with regards to foreign bribery and victims rights. Great. Thank you so much, Serena. And thank you to Transparency International for this invitation. I am someone who comes out of the anti-corruption world, but have turned my attention to this parallel world of business and human rights. And I should say it's not just the United Nations. You know, Drago works with the working group on bribery, but there's also another part of the OECD, which is focused on responsible business conduct. And the OECD guidelines really ask companies to think about responsible business as an integrated agenda that you need to prevent corruption, but you also need to prevent human rights impacts in your business operations. The cornerstone of that is what I implement through the UN, which is the UN guiding principles on business and human rights. But I want everyone to realize that what we're saying here is holistic, responsible business means that companies need to account for bribery and prevent bribery, but also need to realize that that very often their activity also has a strong human rights impact. And I'm not going to go into the details of that, but just to say the UN working group appointed by the Human Rights Council as we go around the world, we go on country missions. And what we've noticed around the world throughout all of the regions is that when we speak to communities that have suffered human rights abuses, whether it's a dam that has burst or there is a failure to conduct an environmental impact assessment and now they're suffering the consequences in terms of pollution and health hazards or whether it's pharmaceutical supply chains where bribes have been paid and medicines have been diverted around the world when we speak to communities using the human rights lens. So we're there to ask them about business activity that has had a human rights impact. What we often find is that they also speak about either petty or grand corruption, right? Either companies are paying administrators to circumvent regulations or you have, let's say, a security guard who's paid a bribe and is then detaining a human rights defender. So the thing is, while in the anti bribery space, we talk about victims, but we don't document the harms. If we look in the business and human rights space, the harms are well documented. And perhaps we don't have the concrete evidence of bribery, but we have longstanding community impact. So I just want to say that I think it's important for us to connect these agendas because, again, it will help us understand how foreign bribery and private sector bribery does undermine human rights across the globe in a way that is, and again, subverts democratic processes in terms of what we're seeing. So I would just say that I think that aligning the agendas and really focusing on how business and human rights and the UN guiding principles, which require companies to look at their human rights impacts, needs to be integrated into a stronger kind of corruption prevention agenda. I think you make some really important points there about a cautionary tale about siloing the way that we address these areas of work Just by way of follow up, you touched on then your missions and I wonder if you could just share with us a little bit more what you've heard or what in terms of some of the cases that you've seen or been told about that show the negative impact of foreign bribery on human rights and what would be your assessment on how there is both enforcement of foreign bribery and also recognition and protection of victims' rights in practice? Yeah, so a couple of things there. One is that I think it's very important for the human rights community to continue to advocate for strong anti-corruption measures at the intergovernmental and at the national level. So that's one piece, which is that we need advocates in from the human rights space. But in terms of cases, and I'll just mention one, I mentioned a few kind of examples of what typically happens, but we have in the situation of the Democratic Republic of Congo, the situation of Dan Gertler and the bribery allegations and, of course, sanctions were levied against him. There's both the human rights impact of failure of DRC to collect billions of dollars in terms of payments right because of the bribery leading to underpayment into the Treasury. But what you see in the human rights side is that there's now cases that are being mounted about direct impacts that the quality of the mining, the safety, the way in which people are actually impacted by the mining conditions leads to much more direct human rights impacts to the communities that are either mining impacted and living near the mine. And those are, I think, the more direct human rights impact. So that the Treasury piece is certainly a human rights issue, but it's really that direct consequence as well that we need to document more. But I'll just conclude by saying what's important here is that while we talk about anti-bribery and, of course, the OECD convention, we also have the UN guiding principles were voluntary at first for companies. But now we have the European Union, France, the Netherlands just announced a couple of days ago, binding mandatory human rights due diligence, meaning companies are going to have to, similar to anti-bribery, institute procedures and controls to prevent human rights abuses in their activities. Why is this important? Well, hopefully, again, it'll be another way of getting at the same issue. If there's corruption linked to this, then processes will have to improve. But most importantly is this idea and the Netherlands has said that they're going to introduce something called a statutory duty of care and civil liability so that while a prosecutor may or may not investigate the allegations of foreign bribery in these cases, victims themselves will have direct standing in home country jurisdictions to seek remedy and reparations for the harms that they've suffered, which might be monetary, but might be injunctive, right, that you want the mining to stop or you want permitting processes to be improved. So I just want to say that I think that there's a lot of hope. I hope in terms of robust human rights due diligence, serving a strong corruption prevention agenda. And I think that, you know, the developments in the trends that we're seeing in mandatory human rights due diligence, I think the the anti-corruption and anti-forror bribery world has a lot to learn more generally about the importance of undertaking robust due diligence in terms of not not not just identifying corruption vulnerabilities, but really looking into the integrity and character and track record of all of the business associates throughout their supply chains. And I think it's no surprise that when you look at sectors like mining that you mentioned, large-scale infrastructure, dams, of course, these are sectors that are not only most prone to business and human rights violations, but also most corruption prone as well. So thank you very much, Anita. Our next panelist is it's my pleasure to introduce Edson Cortes. Edson is the executive. And I hope you're still with us, Edson. I can't see you on my screen. So hopefully you are here. It's just a glitch. But Edson is the executive director of Centro Integritaghe Publica, or CIP, SIP, or also known as TI's chapter in matter in Mozambique. So great to have you here, Edson. In May of 2021, SIP and the Norwegian Mitchelson Institute produced a ground-bake break titled Costs and Consequences of the Hidden Depth Scandal, and this report looks at how a hidden and corrupt loan to Mozambique, a guaranteed loan of US $2 billion, actually cost the country US $11 billion and undoubtedly exacerbated poverty in the country. So before we turn to the actual report that you co-authored, Edson, can you tell us a little about what's the state of play of foreign bribery in Mozambique in general? And perhaps you could just touch on a couple of cases and the impacts, including the impact on democracy and human rights that it's had in Mozambique. Morning there. Thank you, Serena. Well, in Mozambique, we have this type of case related with corruption, viral corruption. And I will try to nominate three cases. And the impact of this case is because this is a loan that the government contract with the foreign banks, for example, digital migration in Mozambique in 2030. A Chinese company won this tender without any kind of direct adjudication. And the company is as well connected with the daughter of the former president of Mozambique, Mr. Mandegebuzzi. And we have also the construction of the Nacala airport by the Brazilian company Odebrecht. If you heard about Lavajato scandal, you heard about Odebrecht. So Odebrecht built a huge airport in Nacala province without any business plan. And this is a huge white elephant in Mozambique. No one uses this airport. It costs more than a hundred million US dollars. The former minister of finance is involved in this kind of. And we also have the problem with Embraer is a Brazilian aircraft builder. They sell three aircraft, the Mozambique company, Ireland and the former minister of transport is suede and now is in jail because of this, because he won two million dollars in this kind. All these candles, the government asked for loans to be involved in this counter to pay these companies. And after these, they need to pay the debt service. And if the government need to pay the debt service, they don't have money to invest in the social areas as education and health. And we here in Mozambique, we know that if you have some money and you suffer something, you are some disease, it's better to go to the private sector instead of go to the public health service, because if you go to the public health, you will die, because you don't find the medicines. So this is the kind of thing that we suffer here because of the lack of investment in the public service because the government have a lot of loans and they need to pay for the. You might have just dropped out there, Edson, I hope you come back on in a minute, but I think you make some really, you know, really important points, one about, you know, just the impact of corruption and particularly in infrastructure sector that can end up in white elephant projects, but also, of course, the very fundamental issue that the bribery and corruption, you know, is really robbing your country of money that is needed for essential services. And I'm glad you're back now. Just a follow up question, Edson, now turning to this infamous tuner bombs or hidden loans case, what did your report find in terms of the harm that it caused? Well, this is the huge corrupt scandal in Mozambique related with the dengue, it's the scandal that started in 2012 until 2004, when the private and private investors, a Lebanese company, joined with Credit Suisse and VTB, they arranged a huge, big scam with the police to get more than two billion dollars. And after the, in 2016, when the American funds of investments start to complain about the money they invested in Mozambique, and we don't pay the money, the scandal appeared in the media. So, and when this appeared, Mozambique received more than four hundred million dollars from the international donors for their budget. They, this kind of mobility we call, they, we call a budget support. And when the donors knows the details about this, can they suspend the aid? And this aid goes to the social areas. So, and from 2006 until 2009, Mozambique's, the donors cut the budget support until now. More than two million Mozambicans go beyond the private line. Many companies, small, medium companies, close it because they won tenders with the government, with the state. And the state, they don't have enough money to pay the tenders. And we start to see the tension with political things because some people in the political elites, they benefit from this scam. But other people in the political elites, they don't benefit and they suffer also with the huge economic and financial crisis. So now we have a trial for more than 19 persons, include the former minister, former, the son of former president of Mozambique, Armand Gebuza, who won more than 33 million dollars in this kind of, and all of people who belongs to the inner circle of President Gebuza, they won a lot of money with all this kind of. And after the audit, the crawl audit, they don't understand where $700 finish. So this is the point of situation now. And the, we have a, the, the, the, the, we are fighting and we have a trial here in Mozambique in UK in Switzerland. Hello, can you hear me? Yep, I can, I can hear you. Yep, we can hear you. Okay. I think you, you've frozen a little bit there, Edson. Can you hear me or just give a thumbs up if you can hear me? Otherwise, perhaps we'll come back to you. No, no, I can, I can hear you. I can hear you. Okay. Well, perhaps if, perhaps if you just one more, one more minute and then wrap up and then we'll move on to Sue. Well, I think I'm done. Okay. Thank you. So Mariah, thank you for that, Edson. And I will come in and we certainly got all of that. And I guess, you know, really what you've, you've described to us is, is really the really disastrous and tragic consequences that this case has had. And I think it's a watch this space in terms of the cases, certainly in the UK. And I'm sure our next guest, Sue, will be watching very closely to see what happens with this case in the UK. So we're going to now to turn to have a look at a couple of the major exporting countries, the UK and France, looking at the supply side of foreign bribery, if you like. Susan Haudley, welcome. You've got your job cut out for you, tracking that case clearly in the UK. Susan is the executive director and founder of the UK NGO Spotlight on Corruption and was previously the founder and policy director of Corruption Watch UK. She's worked on anti-corruption issues in the UK for nearly two decades and is very well known and respected beyond the UK borders and her work in this area. So, Sue, welcome. The UK, a common law jurisdiction, has been a leader in some respects in terms of recognizing the harm caused by foreign bribery. The UK has compensation principles and has made a few awards. But can you really tell us about just how well that's worked? How was compensation calculated, even roughly? And what were some of the avenues that have been used to make that compensation? Thank you so much and thanks for your kind words, Serena. I'm really pleased to be part of this discussion. And Drago alluded to the painful process of victims not being recognized in the last round of OECD discussions about the new recommendation. And it's a pity because actually, the UK's compensation principles came out of the 2016 London Anti-Corruption Summit where they communicate specifically, recognize that compensation can be, I quote, an important method to support those who have suffered from corruption. And so the UK developed compensation principles in June 2018 for their prosecuting and investigating bodies. So that's a serious forward office, national crime agency and prosecution service. And these principles are quite groundbreaking. I mean, they require and commit the agencies to identify who can be regarded as a victim, assess the case for compensation, obtain the evidence and ensure that the process of paying compensation is fair, transparent, accountable and avoids further corruption, which cuts to none of the point that Drago was raising. So how have they really worked in practice? So actually, all the most significant compensation claims happened before these principles were introduced. You had a situation where we've had 4.6 million dollars paid to Tanzania under the first ever deferred prosecution agreement, then a smaller compensation to Kenya and Mauritania by accompanying bribing electoral bodies to win printing contracts for electoral material. And then the largest ever most significant ever compensation order was 11 million pounds to Lithuania, which was actually 50% of the contract price. So the really significant good compensations. I mean, the Tanzania one was 21% of the overall sanction. The Lithuania one was 60% of the overall sanction. But what happened next? So in 2016, there was suddenly silence. They produced the compensation principles, but nothing was happening. And we had a five year gap with some very, very big bribery cases. We had airbars, we had unit oil with no compensation at all. And so finally in July this year, there was the construction company, Amic Foster Wheeler. There was a amount of 210,000 pounds was paid in compensation to Nigeria. But crucially, this represented just 0.2% of the overall fine, the overall sanction paid. And it wasn't paid to any of the other five countries involved in that bribery scheme. So overall, you've had seven deferred prosecution agreements for foreign bribery in the UK, which resulted in settlements of 1.4 billion pounds and compensation of 4.8 million paid. So that's just 0.34% of the overall amount has ever been paid in compensation. And it isn't any better with criminal convictions. In fact, it's worse. So I think it's worth looking up on Edson's very powerful presentation there, that there was a recent case where Credit Suisse was fined in the UK by the regulator and they imposed a fine of 147 million as part of which they required the bank to forgive $200 million worth of debt. But overall, the 350 million pound fine went into UK and US treasuries when Edson was pointing out, people in Mozambique were forced into really abject poverty by this bribery scheme. So I don't wanna, I mean, I can tell you in detail how compensation is calculated, it's very limited, it's very much about whether a contract was inflated, the goods were delivered and it's only ever about the amount of the bribe paid, which is why we've seen very, very small amounts generally apart from the very groundbreaking Lithuania deal which has never been replicated. What are the barriers very briefly? The key barrier is actually not the prosecutors it's the courts and in the UK the case there is you can only do compensation in simple cases. So the bottom line is foreign bribery is never simple, it's always complex and the more widespread, more egregious the bribery, the more complex the less likely compensation is to be paid, which is a very unsuspecting situation which we've been pointing out that we need a legislative amendment in the UK to address. Second barrier is about how to return which Drago raised and I think the important thing is we do have some really effective principles from the global foreign asset recovery on how to do this that shouldn't be a barrier as Drago says, this can be done, it's not being perfectly done, we have lots of questions about how the UK is doing it but one very final comment I wanna make is really the narrative around how money is returned because what we're seeing in the UK is money is being returned particularly from civil recovery cases but it's being returned with a big bang of aid and patronage, here we are, we're making generous payment in the Kenya case, it's fundamentally undermined democracy in Kenya, a very small amount was paid and Boris Johnson our now prime minister went to Kenya and he said we're spending this on ambulances and the company involved put out a big press release saying we have helped by ambulances in Kenya so the company that paid the bribes that are fundamentally undermined democracy in Kenya was allowed to use it as a PR opportunity so there's some real issues about how do you make sure it's a revolution and not just patronage and the northern countries being generous with this money. Now I think that's a really good point that you make that it's the risks of it being turned on its head and becoming a PR exercise for the company is a really valid one and certainly I mean I was really shocked to hear that the more egregious and widespread the bribery the less likely the compensation will be paid, I mean that is a fundamental problem that we've got if we're only tinkering at the edges and it's the simplest smaller cases that have been compensated but just quickly Sue I just wondered whether or not you think there's scope in the UK for victims other than the state to be recognised you know this issue around individual victims as well. So this is a really key question I hope we can get into a really meaty discussion about it. I mean for some time we've been pushing UK prosecutors to look at community impact statements in bribery cases not least to make jurors in criminal cases interested and excited by these cases which could otherwise be incredibly dry reams and reams of financial information and you know getting the voices of victims heard in UK courts and the harm really represented it's a real uphill battle and we're not winning that one I'm afraid, I mean I think the other case is we've been highlighting the discrepancy between how harm is identified so in individual cases they recognise that harm includes undermining the proper functioning of government or public services but that harm isn't reflected in the conference assessments of harm. So the courts take a very, very narrow view in the UK and they're very reluctant to expand the definition beyond the state and prosecutors really are a bit bound by that you know they can try and bring test cases up it's very hard, I think the key test is one that relates to something Anita raised which is a case in the UK involving a mining company that paid bribes in the DRC linked to the Gertler case that Anita mentioned and in that case some quite groundbreaking work has been done by a colleague NGO that we work with called RAID Rights and Accountability and Development and they brought forward 16 individuals to the SFO to be compensated who were affected this really raises some very interesting issues about when is corruption individualised when is the harm of corruption individualised or is it always really a community harm can you actually find individuals and do you create unintended consequences by that you create a kind of gold rush to the compensation of individuals which might leave other people out so that's a kind of key difference I think in human rights and corruption. Thank you for that and all power to RAID and Patricia Feeney who have been leading this work in the DRC for many, many years. So thank you very much Sue. Our next panellist I'm delighted to welcome Caroline Goussée legal councillor from the French Ministry of Foreign Affairs. Welcome Caroline. I should have said Caroline is an active French representative in numerous international fora including the United Nations, the OECD and the G20 and she's also previously practised as an attorney specialised in white collar crime including asset recovery and generally corruption issues. So welcome Caroline. We're really pleased to have you here. Caroline, how can victims of foreign bribery be compensated in France noting it's a civil law jurisdiction and could you perhaps explain a little bit to us the framework for victims to make claims before the criminal court? Hi everyone and thank you very much for having me delighted to participate and I was very interested in the previous presentations and answers and actually I have so many questions I think for Sue and I found it interesting the remark on jury trials for corruption offences in the UK while in France we do have jury trials but not for corruption offences so I think it might be the topic of another future debate but it's very interesting. Yes and I would also like to comment on what was mentioned before I think we understand compensation of victims more generally in the sense of asset return to victims of corruption but before that and thank you for your question you have possibilities afforded for victims to be a legal party in criminal civil trials in France and in other countries and on this I would like to point out that we have talked about the OECD convention and the OECD recommendation and I think I should just mention the ANCAC because it is everyone knows around this table how important this text is as well and in the ANCAC we often think about Article 57 but before that you have Article 53 for direct measures of recovery and I think it's an often overlooked article of the convention and it's too bad because it's quite an efficient way to compensate victims of bribery of crime, bribery and corruption. I know that time is running so I'll try to be as brief as possible but in French law physical and legal persons including states can initiate action to establish ownership of property or claims for compensation and it's either by participating in criminal proceedings as a civil party or by instituting separate civil proceedings and the person bringing a civil action on behalf of the state must only establish in accordance with principles of international law here's our capacity to represent that state before French courts and I briefly mentioned two minutes ago civil proceedings and I think it's also an interesting way because the legal understanding of the victim under French criminal law is not expensive, technically speaking one must prove that it has suffered a direct and personal harm from the offence. Compensation can very well be obtained before civil courts and it's interesting because work corruption is a criminal offence and offence is in... I mean we most of them are not considered criminal proceedings as the only or main way to obtain compensation for the injury but cases brought on civil liability claims that are in and I would... I'm speaking at the control of common law jurists and legal technicians but I think it's close to total liability and in that sense and you mentioned my former practice as an attorney but that's very technically what we did is to have asset recovery cases brought before civil courts with a legal standing that is easier to prove and a legal claim that is easier to establish than before criminal courts and I'll be very frank as well in terms of money-wise and compensation-wise it's also more often than not more interesting before civil courts than it might be before criminal courts and very briefly because I'm also here to speak on behalf of my government and what we can do well in France among different faults is that victims legal standing is not the only way to ensure that we take victims into consideration and victims of foreign bribery the French legal provisions for example that create a right for civil society organizations to initiate criminal proceedings in cases of international transnational corruption is another way and I think you know that in France NGOs can file a complaint if they are acting on behalf of the victim or in their own right and some very well-known cases of transnational corruption in a larger sense of the word not in the bribery sense of the word I mean there are some cases of bribery but more generally at least some cases have been brought to courts on the basis of NGOs complaints and this is I think it's an interesting way again to take into consideration and to ensure legally speaking that victims are taken into consideration in foreign bribery cases and I will just point out that this has been considered a good practice in the implementation of the NCAC. Thank you for that. And just quickly by way of follow up I understand that in France there are new provisions on a social reuse mechanism and an asset return mechanism Could you just spend perhaps two minutes telling us about those? Yes indeed we are first of all we're very happy about enacting the new mechanism on asset return and we have had actually discussions with countries that have not inscribed this into law but that had experience in returning assets to foreign countries and foreign populations. This new law it creates a new mechanism to return ill-gotten gains and its aim is to return some confiscated in procedures in criminal procedures of ill-gotten gains as close as possible to the populations of the countries of origin through cooperation and development actions and so this has been entered into law in August but it will be complemented by a provision in the 2022 finance law and we are discussing actually with civil society including transparency international but also having informal conversations with foreign delegates again who have had experience in this to put into place the best modalities that we can think of to implement this new mechanism and yes you also mentioned a new provision that expended the prerogatives of the French authority that is responsible for managing seized or confiscated assets and it's the agrasque and now the agrasque can make available to associations, foundations and organizations real estate that it manages and that has been subject to a final confiscation decision and there is a decree that is actually quite interesting that determines the modalities of this mechanism and it's based on public procurement and the agrasque decides based also on public and general interest the way it will make available real estate to these associations and foundations and I'll just say very quickly that it is I don't want to say that it's inspired but it's actually in a way inspired from an Italian law and I think you some of you may know this that it's an anti-mafia law and it's the idea of community restitution and it is applicable to corruption and criminal organized crime offences and I know that the French government has had discussions as well with Italian representatives on how to take example on what was done I think well I think it's very much on watch this space with regards to that to see how that does actually play out but it's good to hear Caroline that regardless of where the inspiration came from that there is some progress there so thank you very much for that our final panelist is Juanita Olaya and welcome Juanita and certainly last but not least by any means at all and Juanita has spent many years working on this subject she's an activist, a chain filmmaker she also founded and currently chairs the Uncat Coalition's Working Group on Victims of Corruption which is doing really fantastic work and I can say in the Asia-Pacific region because we've been part of some of that she's also tirelessly been raising the need for us to see and deal with the human rights violations and corruption nexus in an integrated way and that goes back to the point Anita was making earlier about we just can't have this siloed approach to this any longer and she also has a private practice in Berlin and is also now really interested in public, private and civil society organization or change so Juanita welcome and can you please tell us why you think it is just so important to repair the damaging impact of corruption and specifically foreign bribery which is what we're talking about although it's all connected what happens if reparation doesn't take place? Just need to take yourself off mute you're still on mute Juanita I haven't that's it well no I think you're still on mute now there we go now you're fine yeah thank you Serena and thank you Transparency International for inviting me to this wonderful event what happens if reparation doesn't occur? imagine if you had a leaking pipe at home or in your village or in your city and you left it out leaking leaking water water that you need to drink to live to cook and instead of repairing it you went around finding the people who damaged it and left the pipe to leak that's what happens when you don't repair the damage that corruption causes you leave the damage untouched you leave the damage perpetually affecting citizens of these cities of these villages of these houses of these countries suffering from what a few people did so when we're talking about reparation we're talking about and addressing the victims of corruption we're talking about collective damages most of the time these things that are hard to hard to depict and to make material but that are but that you know they are there when they hurt when you don't have them when there's no trust in government when there's no when the basic human rights are violated when democracy doesn't work you know take the other other case that Edison brings back to our memories that case who's still not being repaired caused harm not only in Mozambique but also in a lot of countries in about seven eight if not 12 other countries in Latin America for example the other case disturbed entire judicial systems that were bended on their favor the other case bended entire financial a political finance campaigns on their favor how many elections were blurred because of their intervention were affected because of their intervention how many key infrastructure projects were affected because of their intervention so that's why I'm very adamant at putting forward and clearly the human rights impacts of corruption and I do agree with Anita and underscore what she says about the need to integrate those agendas to to to connect them and to see them together because a company that bribes or that bribes its way into a market is not compensating its human rights it's creating additional impacts by its behavior so we cannot separate corruption as if it was a separate silo from other types of behavior just like avoiding taxes isn't as well and I agree however and I am glad it's not the word but I'm relieved to hear about Drago Soro on not having the recommendation recognize the victims as upfront as it needs to but as others have also mentioned that talks more about the mental state of mind at the OECD and less about the actual frameworks at hand to be used for reparation because the frameworks do exist just as Caroline reminds us of the ONCAC convention that very clearly talks about the need for reparation and the need for any sort of reparation and the need to recognize the citizens role in that reparation and their right to demand for that reparation so the frameworks are there and also as Anita mentions the business and human rights framework the universal declaration of human rights they are all very clear so while we can still live without the explicit mention in the recommendations about victims of corruption in the OECD recommendations we will continue to expect reparation to happen because we cannot leave the pipes leaking however what happens is that despite the frameworks being there they're actually not being used that's also Sue mentions with very clear examples they're not being used on practical reasons because you know what you hear is oh it's hard to find the victims oh it's hard to figure out a scheme of reparation that works oh and citizens are not being called to represent their interests in many countries which is possibly because it is the citizens it is the victims of corruption that know how reparation can take place that know what it feels not to trust their governments that knows which human rights have been violated through corruption so they should be involved not because it's nice to have them but because they are the best ones the best place to identify reparation and to enable it there's however a lot of hope just as Carolyn indicated and I want to emphasize the amazing leadership that France has been having in this field not only by using the framework because as France has stepped up enforcement France has also have been stepping up their efforts into addressing reparation to enabling that assets come back to the citizens and are used for the benefit of citizens of the countries that are victims of those cases so indeed as Drago also says it's more about not wanting which is puzzling because we're living in a paradox world where we're claiming the importance of things we're not willing to repair so how come we talk about the with grand words about democracy and the importance of democracy but fail to know how to repair it how can we talk grandly about the importance of trust trust in our societies but don't know how to build it so we have to repair these pipes that are leaking thank you very much Kat, one need to thank you I mean I guess you've made it really clear that the frameworks are there reparation is just not happening so is it as Drago suggested is it political will what is it why is it that it's not happening and more importantly I guess in just a couple of minutes what's it going to take to move it takes the carolines of this world it takes the many carolines of this world it is less than political will what is needed because I meet I see very often prosecutors judges lawyers companies company officials people working on sustainability issues that are determined to make this happen and those are the ones that make it possible so it just takes about someone really using the frameworks at hand so it doesn't need to wait for big legal reforms or for high level politicians to take decisions it really takes for the people with their instruments at hand to make it work and it takes using the laws that are there to enable citizens to take part in this to use their standing to use their voice to be involved so it's very easy it actually I think it's more like a mental problem it's like a mental change it's a small one it's not a big one most of the time it also becomes very clear for many people when it hits home so my my my main recommendation is use the frameworks at hand great thank you well I wanted to thank you all this has been an incredibly rich discussion we're now going to move to a couple of questions that have been put in the in the chat function and Drago there's a question for you actually there's a couple of questions the first one Drago for you is quite a contentious issue I think but the question is you know should there be more emphasis by the OECD in the private sector to avoid regulatory arbitrage when it comes to bribery and it then suggests you know do we need an international anti-corruption court has been widely debated and you know I'm not sure that's what we need but I'm very interested to hear from you Drago you know my position this is very clear you know we have enough international rules we have enough let's say legal framework to do things we just have to do them the problem we face today is not only in the air of compensation I don't agree more and I was seeing thumbs up from your other panelists this does not only apply in the air of compensational victims you see Juanita has said this is a small mental problem when we were discussing this it was quite a big mental problem especially for me but you see I was so happy today to listen to Caroline and I would like to say something else you know I was bragging so much about this issue that I finally made some of the countries agreed that we will start a separate action on let's say start develop something which would lead us to enhance possibilities for victims to be compensated and I really hope that I can count on Caroline on this one because we are quick we are discussing the French reports so I will immediately jump on the French delegation when they come in in half an hour or one hour and let's say the last question is the global interruption court yes unfortunately yes we are we see so many cases where let's say the top decision makers from many countries are not being brought to justice and their country simply because they the either the investigators or the prosecutors they do not feel strong enough to do it or they're simply not able to do it we have we have cases let's say let's say when somebody from country a bribes somebody in country top politician in country c through intermediary in country b when all the procedures are gone are done we have the following situation in country the judge said this is not a bribery in country b intermediary still sitting in jail in country three the top politician has been sentenced for corruption and released by by the constitutional court in a clearly political motivated decision so we have we still have impunity and as as as much as I really hate to say this I don't see any other way than let's say to really to introduce the rule of law against everybody in the world and when I see everybody in the top politicians because let's say the loaf the small fish will always be fried in their national in the countries then then we will have to get we'll have to need we'll need the interruption court of course not all countries we join you have some countries we simply do not care about that but maybe the rest of the world will do and at least for those countries who will join we might we might bring in a bit more justice as today thank you for that there's there's also a follow-up question or not a follow-up but a second question for you Drago which I think is from my colleague at TI Berlin the question is you know what what can be done oh sorry Juanita did you want to add something to that last question yes Serena thank you just briefly on the on the international court idea I think it's it's it's an interesting idea it would have been interesting 30 years ago but it's not anymore it's not useful anymore because the problem we're having today is not is not be able to be an address by international court that we will not be able to put together to work in the way we needed to work as Drago says for the few cases of high-level officials that are not bring being put up to justice and the problem of enforcement today remains national remains national and it needs to be addressed at the national level I think it's just a very romantic and appealing idea that but I think it would distract create a lot of distraction from the real work at hand that we have which is the strength national judicial systems well I couldn't agree more coming from Australia where we have an enormous amount of work to do we don't even have a national integrity commission so I couldn't agree more and in fact an international anti-corruption court would perhaps be the perfect distraction from progress in Australia so but I might be sharing too much Drago there was another question for you what can what can be done in countries like Germany where you know that the protected legal interest is you know often the integrity of office and so then it means that individual victims cannot be compensated and the question is you know is the working group the OECD working group looking into this issue well I have to say the germany is changing too you know this time 20 years ago let's say the rules which were protecting the let's say the legal interests of offices were much stricter than they are today so things are changing there too of course it doesn't go from what they want today too but things are moving of course sometime will be needed but I would say in terms of the let's say of Germans activities in our group we consider Germany is one of our best member states it's not perfect of course because nobody's perfect but Germany is doing quite well as soon as we will manage to push through with the standards let's say also in this area in the OECD then of course Germany will align I don't have any doubts on that the only problem is let's say we will have to be very clever we will have to find we will have to start thinking out of the box because we tried let's say to with the clear cut provision or compensation of victims which did not work so we will first of all you will have to collect all the forces in the form of countries which have something in place which are doing it let's say like United Kingdom or France and some other countries which are really supporting this idea in the working group when we are discussing the recommendation and when we will form this group then maybe we'll get to some ideas how to do it no it's very typical for Germany you know Germans Germany was the last country in Europe to ratify the ANCAC but when the ANCAC was ratified Germany basically more or less implemented everything what's in the convention so this is German style you know they first do it and then they ratified we have plenty of countries which first ratify the convention and they do it after 100 or 200 years so I would not see Germany as a big problem for sure they will be getting everywhere where the standards will lead them thank you it's very interesting and I just wanted to thank Anita she's shared a link in the chat function on the report that the UN working group on business and human rights did and presented to the Human Rights Council and this goes to this issue of very much you know joining the dots between the business and human rights aspects and the anti-corruption aspects and I just want to commend everyone involved in that report it's a cracking good report so thank you now and just encourage any other participants if you have questions please do put them in the chat function I actually did have a question and it really was something that came to mind as Sue was speaking and of course thinking about the UK's the SF5 foreign bribery act which of course Australia has kind of picked up and really modelled amendments to our Corporate Crimes Act on the problem is great work's been done by the Attorney General's Department and we have now a draft draft amendments very similar to the UK the problem is it's sat on somebody's intray and hasn't been introduced to Parliament for the last three years nonetheless I do just want to commend the hard-working staff at the Attorney General's Department for progressing that but one thing that crossed my mind is if this legislation gets up in Australia it's similar to the UK and the US in that it will introduce a deferred prosecution agreement scheme a DPA scheme and my question to Sue and to others is do you think there is a risk or in fact an opportunity that victims of foreign bribery are likely to have a better chance of compensation under a DPA scheme or in fact will that potentially let the companies off the hook and make the chances of compensation even harder and I guess I'm thinking about what you were saying Sue about the criminal process and the court process and how long it goes on but it just struck me and I see one need to have a view on this as well so DPA is good or not so good for victims of foreign bribery perhaps Sue and then one Eiter and if anyone else wants to comment Very, very pertinent and very good question Serena in an ideal world there would be community impact statements put to any court that is overseeing a DPA so you would have a third voice because at the moment DPAs are very much company and the prosecutor negotiated behind closed doors even where it's approved by a court they go to the court and I mean what we've seen in the UK is a bit of rubber stamping frankly so I think we would have to work very hard as civil society to bring that about but lots of lawyers we've spoken to in the UK context think there really is a case for third parties to be able to put representations to break this kind of cosy link but I think you know it's a really really interesting question because the other thing that you get with DPAs is you know in courts certainly in the UK victims do have a space a sentencing to come and say you know this they give an impact statement and there is no mechanism in DPAs for that so if you could find the victims in the you know to present to the court they would get more of their day in court if it's a criminal case in DPA but I think that's really important work to be done I mean the UK regime does have compensation specifically as one of the things that must happen for a company to get a DPA and I think that's good practice the fact it hasn't happened you know is being very disappointing we would like to see a lot more of it but it is there in the law so I would definitely say if anyone is in that situation where a country is putting in place new laws about DPAs to make sure that it is modelled on the UK in so far as the compensation provisions Thank you for that that's very helpful I'll certainly be taking that on board when we see where this gets to Winita if you could just add your comment for a minute or two and then there's a final question I think for Caroline and then we'll do a wrap up Other than underlining each words who just said we need to remind ourselves that about 80% of current enforcement happens through out-of-court agreements as a report that published by the US OECD a few years ago confirmed so it is an incredible opportunity to address corruption reparation and I emphasize reparation because compensation in in Roman law countries has a different connotation it is important to involve people's voices and citizens voices in that negotiation and of course the trick lies in how to open up those procedures so that citizens voice can be brought in I think whose recommendation of bringing at least impact assessments is really important and really needs to be heard of but there's also another issue is that some jurisdictions have a practice of giving too much voice to the perpetrators in those agreements far much more than the victims the perpetrators end up having a say in the destination of the assets that are involved or in the fines in the use of those of the funds and I think that that is questionable because that has stopped and that has made difficult in important cases like in the case of Orbea and in the US the actual delivery and the delivery of the funds for the benefit of the citizens so it is important to be aware of sufficient transparency practices of involvement of citizens voices and also of not taking care of the balance of how much power and voice the perpetrators vis-a-vis the victims have in those agreements it's a matter of rule of law and just to make sure it's really a good opportunity and we need to make it in ways that also doesn't make prosecutors' lives much more difficult which is also often here some of they have it doesn't have to be more complicated it actually can be much easier and I would quote the examples we have lived where DPAs have been delayed or have been made complicated because of the absence of that Yeah, great No thank you that's extremely helpful Carol and there's a question for you it has many parts so I'll let you just choose which particular part you want to answer because we've literally got two minutes but it's really about the French mechanism giving NGOs standing to file complaints on behalf of victims and the suggestion is it's one thing to put in place the legal procedures to enable that but what's the experience being so far on ensuring inclusive participation by victims and you know have there been any standout lessons about you know which NGOs are giving given standing in court to speak on behalf of victims so I guess it's really a question around you know NGOs really best place to speak on behalf and provide that voice to victims and what have you learned from that Sure, I do think we have extensive or actually material experience in NGOs bringing cases to light or to justice by being the authors of criminal complaints I'm sorry I was caught up in your question and I was caught up in my answer and I'm not sure I'll be very precise on answering the question it was the question are NGOs best place to Yeah I think it's really I think it's really a question is you know what lessons have been learned about which NGOs are given standing in court to speak on behalf so I guess maybe sitting behind that is it only the big international I NGOs who get to do that or are there others or what have been some of those learnings Well not everyone it's based on I don't know how to say that in English actually I'm thinking while I'm speaking but it is based on not every NGO can bring corruption cases before criminal courts it depends on obviously the interest that are defended by the civil society organizations so talking about corruption I'm thinking about transparency international I'm thinking about Shepa I'm thinking about Antica and I'm sure that some of you know that there was some contentious and debate about whether the government was providing adequate relevant authorizations to NGOs to bring those criminal complaints so technically speaking those NGOs one must be defending the interest at heart and two yes they have to have for lack of a better word an authorization that is delivered on a periodic basis to have this legal standing again and I think I would be happy to discuss it further with Transparency International France that has some very relevant experience in bringing those cases and I think what's important also to mention in this mechanism it's not only that we authorize it it's that it's put into law it's literally in the criminal procedure code or is it the criminal code but so it's yeah I think that's a very important point you make because having it in law then means that it's not at the the win or the approval of whoever happens to be in power at that particular time all right well we we are at the end of our session so I'm going to just ask each of each of our panelists to close with one recommendation if it was a perfect world you could have one recommendation to progress to progress enforcement of foreign bribery and victims rights what would that be and I apologize it's you know one recommendation one minute to kind of get it out there so and Nita I might go close to you great thank you very briefly I think back to what I was focusing on which is the promise of regulation in the area of human rights due diligence if we do it well and it includes a provision for civil liability and back to Juanita's point weak rule of law places where there's weak governance and weak democracy or lack of it using this as a mechanism will be victims will be able to address the fact that there is corruption as well as human rights abuses I'd also just say that the OECD national contact point system is another non-judicial remedy mechanism where you can again look at corruption and human rights hand in hand when people see remedy great thank you Drago what would your recommendation be clearly not an international criminal court I don't think but or corruption anti-corruption court but what would you suggest I would suggest that we simply strictly enforce the provisions of the legislations which are asking for confiscation of process of bribery domestic or 401 that we and that we really strictly take into account the rights of victims when deciding on what to do with the confiscated process and here I have to say that let's say in the OECD local provider bribery we call the DPS and MPs non-trial solutions I would have to say that I see much better chances that we make a really important breakthrough in this area than in the typical court decisions because what we saw until now is that let's say countries work with each other much better in when they discuss the NTRs this also goes also let's say reflects in the cooperation of the companies which are basically suspects and I think that this would be an ideal let's say terrain to check some of the ideas also in compensating the victims No, thank you very very interesting Juanita you got quite excited before and I think spilled the beans a little bit on your recommendation you suggested use the frameworks we have but is there something else you would like to add as a recommendation so you get kind of two fights at the cherry Yes, I would also add another suggestion reparation is also possible out of court governments decided and companies decided to repair the damage that corruption has happened doesn't need to wait for the responsible ones to be found and to be identified repairing the damages of corruption as they happen just as mitigating the damages the human rights and the environmental impacts that we humans make in our surrounding we make our lives better so we can do it without trials we should do it now Do it now, very good and Sue if I can jump to you for your hot recommendation So my hot recommendation is that Drago is a volunteer you Drago for this one with your community of the willing in the working group on bribery create a pilot project for some willing countries to commit to doing a proper impact assessment of the harm of bribery including multiple stakeholders experts local NGOs INGOs on some specific DPAs coming up how about that I think it's possible Drago Well thank you for putting so much responsibility for me on me you know I'm running a bit out of time because it'll be only one year more since I'll be sitting here but I'll do my best that I can promise Thank you Drago I think all of us have confidence in you absolutely to do your best and we know you can get things done even in even in a year as progress can be made so thank you and Caroline now over to you Well it's a bit harder to make a recommendation from a government standpoint because I'm making a recommendation to myself or to my government to everyone else I'll just I won't be very original I'll just relay some things that I've been previously said including by Juanita that we very much agree with is to better implement the framework in general but we talked about the UNCAC we have discussed about what can be done under the UECD but Sue mentioned the G-FAR principles and you also have the some G-20 principles on asset recovery in return and I think my main point would be and this is a position that we have in international fora is to have mechanisms in place or it is to ensure that is that there is adequate and effective implementation of the many many principles and international provisions that exist to take into account and into consideration victims in their compensation Thank you Well thank you all very much and my thanks to to those who've joined us I mean I think it's been a really rich discussion today clearly there is much to be done but I think we've heard both sides of the gloom and doom but also where there is some hope and opportunities for the future and I think what really struck me is we really need to keep our focus on the fact that bribery is not a faceless crime you know we need to keep our focus on the impact that bribery and corruption has on the lives and livelihoods of communities and the most marginalised and as we've heard from Juanita you know how do we continue to ensure that those that are directly impacted do have a seat at the table and are part of those discussions and decisions around what needs to be done We know from our own research at TI we need to keep our pedal to the floor in keeping the pressure up on enforcement and we must continue as we heard from Anita and others to make sure that we're really narrowing this understanding or perhaps widening is the appropriate better term of the nexus between corruption and human rights violations they can no longer be seen as siloed events and I would suggest that we also need to recognise the other aspect in terms of environmental degradation as well as very much being part of this if you like triangle of you know human rights violations environmental degradation and corruption risks because we know bribery and corruption has devastating impacts on the natural environment So my thanks to all of you and all power to all of you for the work that you do and I thank you very much for the work that each and every one of you do and for all of those that have joined us on the call and that's not bad it's 9.31 so one minute over and to all our participants who've joined please join me in congratulating and thanking all of our panellists so thank you very much and have a nice day and a nice evening thank you