SPEECH OF JUDGE EVA JOLY
I would like first to say that the fight against
corruption and money laundering is very difficult in all countries,
not only in the new democracies, but also in countries with old
democracies and stable institutions like France, Italy and even
Norway, because all criminal law systems since the Code of
Hammurabi were built up to track thieves and were not oriented
towards the elite. The testimony which is very important in the
American, the Anglo-Saxon and the Roman law was made to tell "I saw
the thief stealing" while in the economic crimes there are not
testimonies nor witnesses because it is a secret, hidden
That is why it is indispensable to inverse the
burden of proof in economic crime matters. This would mean that if
one person is suspected of corruption or any other economic crime
s/he should be able to explain where the money comes from and this
will make prosecution much more easier. In case that the person
cannot prove where the resources come from they are to be
confiscated. This is not a violation of human rights, because the
role of the testimony in the economic crime is not the same as if a
simple theft is concerned.
France introduced a change in the burden of proof as
regards organized crime 18 months ago because it applies new
economic regulations. At present, the French prosecutors only have
to prove that a person is related to the organized crime. If this
is proven, the person has to explain where the money comes
Norway has a similar provision according to article
317 of its Penal Code which says that if a person is convicted of a
serious offence, for example s/he is accused of corruption for
embezzling 1 million francs and s/he is sentenced of that crime,
and s/he also owns significant assets, the person has to justify
their origin. When legal origin of assets cannot be proven they are
considered to be of a criminal origin and could be confiscated.
This is one of the very efficient measures that could be undertaken
in order to make the work of the investigation more efficient as
regards to this type of criminality.
I would also like to focus on the importance of the
image of Bulgaria as to economic crime. Bulgaria was among the
first countries to sign the OECD Convention on Fighting Bribery of
Foreign Officials in International Business Transactions and has
adopted new laws, correspondent to the European legislation, but it
is also true that implementation of these laws is not good enough.
It is also known from the work that is being done by the Center for
the Study of Democracy and Coalition 2000 that the perception of
the problem is very important and that 82% of the Bulgarians think
that they live in a very corrupt country. International investors
would not take their decisions based on these numbers but would ask
for the opinion of the international business community, i.e.
Bulgaria has an important problem with its image and it has to do
even more to demonstrate that it fights against corruption and is
becoming a transparent country.
There are also other measures that have to be
undertaken in order to increase transparency. The revenues and the
fortune of all politicians and decision-makers should be declared
and made accessible by the public. In Norway the revenues of all
citizens are made public in Internet and everybody could check what
the income of the others is.
It is also important to apply preventive measures.
For instance, in the privatization process there were scandals
about some of the privatization deals. Therefore, more transparent
procedures should be introduced. A better functioning of the stock
exchange is crucial for the Bulgarian economic future. A good
system of monitoring is also needed.
In order to prove that you are doing something
against corruption you have to take measures in your judicial
system. I think that the first thing to do is to improve its budget
because your budget is only 1/10 of the normal European level. In
Bulgaria it is 0.3 % of the GDP, in Norway - 3 %, in France - 1.6%.
With such a small budget allocated to the judiciary it is not
capable of carrying out the difficult tasks facing it. It is also
very important to have good policemen making the investigation,
good prosecutors and good judges because it does not make sense to
have good investigations if you cannot rely on the judges at the
More transparency, more means to the justice system
and legislative changes making the proof of economic crime easier -
I think that these things can be done simultaneously, they are not
expensive and they would make life easier for your prosecutors.
Question by Mr. Vassil Kirov, Director, Financial
Recently, the Minister of Interior of Bulgaria
presented the Draft Law on Asset Forfeiture. One of the major
problems that we faced during the elaboration of this law was
related to the proof of the criminal origin of the property,
subject to confiscation. My question comes after the statement of
Judge Joly that if a prosecutor proves that a person has a
connection with organized crime this would be evidence enough for
this person to be compelled to prove the legal origin of his/her
property and, consequently, if s/he cannot prove this, the property
could be confiscated. How can a prosecutor prove that a person has
a connection with the organized crime - should s/he prove that the
person has been involved in a particular crime or should any
special investigation techniques be used or other procedures?
Judge Eva Joly:
In Norway it is possible to seize the entire
property of a person when s/he is convicted of a serious crime.
This is a new law in Norway, we have now a training program for
prosecutors to apply it and we can use it in investigations against
foreign citizens as well. That's a very efficient idea, it's the
idea that if you're caught once for one criminal act we will
inverse the burden of the proof for the rest of your property. If
you're caught for having got money just before a bankruptcy, we
could use that saying "You have to tell us where the other money
comes from". It is linked to the judgment - you have to be
convicted of only one offence, but when you are convicted then the
In France there is a law which states that it is
enough to prove that a person has been in relationship with other
people who have been convicted for a crime/corruption to require
that person to provide evidence of the origin his/her money.
I would like to promote for the idea that in the
area of economic crime in Bulgaria you should think in a new way.
You can say that you've got this very serious problem with too many
rich people that became rich through procedures that you don't
approve and this affects your social contract. Your will to live
together is affected by these few people stealing from the wealth
of the whole country. And they're also compromising the future
because they are frightening investors to come. So, give yourself
legal means to take the money, focus less on the guilt - it is less
important that the criminals are going to jail for years - and have
their money back.
I think that you have to bear in mind that when you
start working on these problems very strong forces will be against
these rules and people will tell you that this is against human
rights and that these are old fashioned socialist rules. You
shouldn't believe that. You should think that people saying so are
people interested in saying so. Stick to the problem that you have
too much corruption, you have image to redress and this should be
known all over the world.
Question by Mr. Petar Petkov, Prosecutor, Supreme
Prosecution of Cassation:
Following the statement of Ms. Koutzkova, I would
also like to emphasize the need to solve the major problem of our
penal process, namely its speed. I also think that fixed deadlines
for all proceedings in the penal process should be introduced -
deadlines for the investigation, the pretrial proceedings, the
court proceedings etc.
I would like to ask Ms. Joly whether there are cases when
magistrates - prosecutors or judges - have been accused of crimes
of corruption and, more generally, how are the magistrates in
France and Norway usually investigated?
Judge Eva Joly:
In France we have had, to my knowledge, one case of
corruption in the judiciary which was discovered by chance because
the telephone conversations of a criminal network were tapped and
when the police were listening to the tape they found out that a
prosecutor was involved in the affair. Then we started a separate
investigation on him and at the end he was deprived of his rights
as a prosecutor until his retirement which is a very serious
sanction. This was a "petite" corruption, because it was only about
a car. In the cases of corruption which I saw in my dossiers,
however, it is a question of hundreds of millions of francs. So,
this prosecutor took an incredible risk for his career for a small
But in France and in Norway nobody thinks and says
that the judiciary is generally corrupt.
I would like, in my turn, to pose a few questions to
you. We have in Europe very bad experience when fixed deadlines
were introduced in a system that is overcharged and is not
sufficiently equipped. If you introduce such imperative deadlines
this would have an excellent amnestying effect. So, you should
introduce them when the judiciary becomes able to meet them.
I will give you an example from Italy: in order to
respect the deadline according to art. 6 of the European Convention
on Human Rights the Italian magistrates had to organize a procedure
of appeal in a certain period of time and they had to set free an
assassin because they were not able to organize the appeal by that
deadline. This is a situation that should be avoided.
You've just said that there were 80 people convicted
of corruption last year and there are many pre-trial investigation
going on similar cases. Could you please tell us what is the amount
of money that you have confiscated from the persons that you have
convicted? Are these persons convicted of large scale corruption
cases and have you managed to restitute the funds and confiscate
the property of all these persons?
Unfortunately, I cannot state a concrete
amount that has been seized but according to the Penal Code in all
cases when a person is convicted of a crime of corruption, when
s/he tried to offer a bribe, his/her property is to be confiscated
by the state.