interview of the month By Nadja Kostka and Mike Sidwell

Ulrich Busch heads a newly founded department for prosecution of bribery and crimes against competition at the Prosecutor’s Office in Frankfurt, Germany. As a senior prosecutor he has been involved in the investigative proceedings of numerous corruption, business offences and organised crime cases. This month Transparency Watch spoke with him about his work and his experience as the chief prosecutor of the SIEMENS/ENEL international bribery case.

Transparency Watch (TW): What challenges do prosecutors like you face in carrying out their work?

Ulrich Busch (UB): The requirements of this profession go beyond the prosecution of criminal offences and include tasks like dealing with the media and politics, staff management, instructing judicial trainees, continually struggling to secure personnel and material resources, further vocational training and many more. And on top of all this, trying to keep one’s personal independence.

TW: Have you ever faced any intimidation or threats?

UB: Even in Germany it’s not unusual for prosecutors to be threatened, especially by accused or convicted people. Just two days ago I received an anonymous letter concerning a former colleague who was threatened with attacks against him, his friends and family. I have had to face such threats myself sometimes. Fortunately, in most cases threats are not meant seriously. But from time to time they can cause a grave intrusion to one’s privacy.

TW: What kind of bribery have you uncovered most often?

UB: In the past, the prosecutors in Frankfurt mainly had to deal with the bribing of public officials, but there has been a change over the last few years. Nowadays, the majority of cases concern a bribe being offered to employees or managers in business transactions. In comparison, the number of bribery cases in international business transactions is still small – I have personally dealt with around 10-12 cases in the past 5 years. With regard to this number, it must be considered a disadvantage that we have no central investigating authority for international cases of corruption in Germany and that it is down to the competence of regional or even local prosecuting authorities of the 16 federal states (Bundesländer) to handle such cases.

TW: In your speech at the 10th anniversary of the OECD Anti-Bribery Convention you note that in your opinion the SIEMENS/ENEL case is an excellent example of good cooperation between the prosecuting authorities fighting bribery on an international level. What has been your experience with mutual legal assistance?

UB: In the last few years the cooperation between prosecuting authorities has improved significantly, especially within Europe. However, the quality of the assistance given depends on immediate and personal contacts between the prosecuting authorities involved. Furthermore, there are still serious problems with countries where corruption is an integral part of the political system, or with countries where money laundering and concealment of assets are regarded as profitable business activities.

TW: You mentioned in the same speech that it took three years to receive a response to your request for mutual assistance from Liechtenstein. Why did it take so long?

UB: To be accurate, we had a quick response to our request which informed us about the seizure of the requested documents. But it then took nearly three years until the documents were handed over to us. This delay could have resulted from lengthy appeals being lodged by trustees in Liechtenstein who function as front men for third-party assets. These people are in a position to prolong the granting of mutual assistance for a long time by lodging a variety of appeals. Therefore it can be a lengthy process till a decision is taken by the Supreme Court on whether to grant mutual assistance.

TW: Considering your experience with Liechtenstein, what kind of difficulties do you think a developing country might face if they made a similar request?

UB: I would not expect any problems different from the ones mentioned before. I have the impression that the judicial authorities in Liechtenstein are working with correctness and do not violate the principle of equal treatment. This doesn’t change the fact that from our point of view the legal situation is unsatisfactory in the respect of how many possible appeals can be lodged.

TW: Do you think there is a danger that national security concerns could be cited in order to avoid enforcing the OECD Anti-Bribery Convention in Germany?

UB: Not from my experience. On the whole the implementation of the OECD Convention and its basic ideas are well on their way in Germany. There is one big exception: the shameful situation concerning elected representatives and members of parliaments in our country, who are still largely exempted from punishment for bribe-taking.

TW: From a prosecutor’s point of view, what can be done for the OECD Anti-Bribery Convention to be fully implemented?

UB: In my opinion, one of the most important points is to improve the cooperation in practice between prosecuting authorities of the involved countries. Another point is to define more clearly and to standardise the group of people to be punished for bribing in international business transactions, e.g. who is regarded as a ‘public official’ and who shall be treated alike? The SIEMENS/ENEL case highlighted this problem as ‘public official’ has a different meaning according to the individual definitions of the OECD Convention, German law and Italian law.

TW: The SIEMENS case was very well covered by the media. Would you say that the publicity has had a positive effect on the German exporting industries in regard to fighting corruption? And, have you noticed an increase in complaints since the trial?

UB: With regard to the first question: the answer is a definite yes, as far as preventive efforts are concerned. The first important cause for general awareness of the problem was the implementation of the OECD Anti-Bribery Convention in 1998 and, following it, the ban to acknowledge bribe payments in foreign countries as tax deductible. The publicity of the SIEMENS case has increased this effect. On the other hand, this doesn’t mean that the willingness of exporting companies to uncover any former criminal offences of their own has increased. So, as far as the second question is concerned, we haven’t noticed any more complaints than before.

TW: What is your opinion on the amnesty programme that Siemens has offered to their employees?

UB: It is important to mention that the privileges Siemens can offer with this programme to employees who give a voluntary statement are limited to measures concerning civil law, e.g. to omit making them liable for compensation and to refrain from dismissing them. It does not affect the prosecution of criminal offences committed by them. Under these conditions the programme is a good thing, as long as it does not lead to preferential treatment of principal offenders like involved managers. And from what I hear, the programme seems to be quite successful.

TW: Do you think some companies harbour a ‘culture’ of corruption?

UB: Yes. Everything we know from the SIEMENS case is proof of it, at least with regard to the past. Defendants and witnesses have told us how a system was in place to pay bribe money to managers in foreign countries using slush funds, foundations in Liechtenstein, money transfers via "cash breaks" and other methods usually connected with organised crime.

Aside from the SIEMENS/ENEL case, we have learnt in the last two years that such practices have been evident not only in the Power Generation unit, but also in other divisions of the Siemens group and that Siemens was not the only company to bribe in the power generation business.

In my opinion, it is beyond reasonable doubt that there are many other cases of companies employing corrupt practices, however many of these will unfortunately remain undetected.

TW: As head of the newly established department for prosecution of bribery and crimes against competition at the Prosecutor’s office in Frankfurt, what are your long term goals?

UB: With the newly established department in Frankfurt we now have two departments with eleven prosecutors, including two senior state prosecutors, to fight bribery and crimes against competition. And for the first time we have an explicitly mentioned responsibility for cases concerning the implementation of the OECD Anti-Bribery Convention. We will use this strengthening to accelerate investigations and push for public charges in the face of a large amount of ongoing proceedings. Besides this, we are striving to further improve cooperation with various institutions like the revenue and cartel authorities, local administrations, compliance officers and the auditing departments of authorities and companies to uncover new cases of corruption. At present there are several hundred cases waiting to be finalised.

TW: What role do you think whistle-blowers play in the cases you’ve uncovered?

UB: According to past experiences they play an essential role. In contrast to other crimes, there are no direct victims with an interest in detection and prosecution in corruption cases. So many cases would not have been uncovered without the help of insiders.

TW: What do you consider to be real, effective deterrents to bribery? Why?

UB: An effective and swift prosecution, the public unmasking of involved managers and a complete forfeiture of illegal profits. White-collar criminals can only be impressed by detection, imprisonment, negative publicity and a lack of commercial success.

TW: What motivates you to fight corruption?

UB: To realise that it is an almost invisible and for a long time underestimated phenomenon in our society, which nevertheless can cause serious economic loss as well as immeasurable non-pecuniary damage, especially to the economic, political and social system of a country. Furthermore, the experience that a criminal who commits acts of economic offences like bribery or bribe-taking still comes off better than a dim thief or robber.