Post Mortem Analysis of Anti-Corruption Cases

July 2019 - Ongoing

Introduction

​The USAID Serbia Government Accountability Initiative, implemented by Checchi and Company Consulting, Inc., is requesting proposals for a comprehensive `post-mortem` analysis of past corruption cases in Serbia, to provide feedback to the specialized anti-corruption courts and public prosecutors’ offices and information to GAI in development of technical assistance to build the capacity and improve the performance of courts and public prosecutors’ offices.

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​The Government Accountability Initiative (GAI) is a four year, USAID-funded activity, aimed at strengthening capacities and connections of key Serbian stakeholders to increase government accountability at the national and local levels. The project was awarded in February 2018, and is implemented by Checchi and Company Consulting, Inc.

Under Component 3 (Adjudication of Corruption Cases), GAI supports the Supreme Court of Cassation (SCC), Republic Public Prosecutor's Office (RPPO), Ministry of Justice (MOJ), and specialized anti-corruption court units and prosecutors’ offices.

Under Component 3, GAI will:

Purpose and objective

The process shall be clearly focused on constructive institutional and procedural improvements, and not on finding fault. Results of a post-mortem will feed back into GAI support for individual institutions such as specialized anti-corruption courts and for the creation of an electronic register of corruption cases (ERCC). The analysis will be presented to government representatives and the general public.


GAI seeks to procure the services of an independent and credible research organization, consultancy firm, or group of consultants with a proven track record of conducting quality analysis of litigation strategy. The main purpose of this contract is to determine where cases have failed or stalled, by analyzing the court decisions in first instance cases for two periods:
   a)  Relating to a selected corruption-related criminal offences in the period March 1, 2014 - March 1, 2018 — before entry into force of the Law on Organized Crime and Corruption on March 1, 2018, and accompanying changes in the Serbian Criminal Code that introduced a catalogue of new corruption-related criminal offences;
   b)  Corruption-related criminal offences adopted after March 1, 2018 in the specialized anticorruption court units of Higher Courts in Belgrade, Nis, Novi Sad, and Kraljevo.

The Law on Organization and Jurisdiction of State Organs in Fight against Organized Crime, Corruption and Terrorism Financing (hereinafter: Law on Organized Crime and Corruption) created four specialized anti-corruption court units and four Higher Courts in Belgrade, Novi Sad, Niš and Kraljevo, and related prosecution and investigation task forces. The adoption of the Law was followed by the amendments to the Criminal Code. Twenty-six criminal offenses related to corruption were amended or introduced in the legal system. The new court units began operation on schedule in March 2018, with training and technical support provided by donors.


With the aim to understand which strategies are most successful in prosecuting and adjudicating corruption cases in Serbia, and to define common shortfalls, the selected contractor will develop a comprehensive, learning-oriented, post-mortem analysis of corruption cases based on a pre-selected catalogue of criminal offences from the Serbian Criminal Code.


In order to support improvement in successful prosecution and adjudication of corruption cases, the analysis shall identify areas of weakness in case preparation, prosecution, and adjudication. 

Activities

4DC proposed an agile approach which will be based around specific tasks which need to be carried out. Having in mind the limited time to carry out the activities envisaged under the RFP, 4DC divided the project into several activities, rather than typical project phases.

1

Setting up the project management structure

At the very beginning of the project, our team will hold meetings with representative of GAI in order to fully define the exact project scope and approach. Having in mind the envisaged activities and timeframe, it is important to set-up a project structure which is simple and effective, defining reporting requirements, channels of communication etc.

2

Hold initial meetings with key stakeholders

Immediately after the initial meetings with GAI representatives, we will hold initial meetings with representatives of target courts. The goal of these meetings is to clarify the scope of the assignment, the role of the consultant and the activities which should be carried out by the consultant and by the stakeholders. These meetings will be organized in coordination and close cooperation with GAI, ensuring that this analysis is clearly perceived by the beneficiary as an integral part of the GAI project.

3

Define a methodology for selection of sample cases

In parallel with holding initial meetings, during the Inception phase we will also define the methodology based on which sample cases will be selected. In order to do so, it will be necessary to divide the relevant cases into several groups, based on different criteria (i.e. number of defendants, type of corruption, area in which corruption occurred (financial, procurement etc.) and similar). Once the different groups of cases have been established, we will ensure that a relevant number of sample cases is included for each of these groups.

4

​Define “assessment check-list” and Excel tool for information gathering

It is our understanding that the post mortem analysis consists of two analyses of corruption cases, depending on the time of passing of judgment - before and after entry into force of the Law on Organized Crime and Corruption on March 1, 2018, and introduction of twenty-six corruption-related criminal offenses. These two analyses are very similar and with the same goal – to identify most successful strategies as well as pitfalls related to prosecuting corruption-related criminal offenses. However, these two set of cases are not without any differences, due to changes in legal framework.


In order to ensure clear understanding of what the analyses should focus on, their exact scope and approach will be clarified and defined during the meetings with GAI representatives and described in the Inception Report. In order to expedite and push forward this critical task, our experts will sample a preliminary set of different types of corruption-related cases to identify extent of the available information in the cases and their relevance/importance for post mortem analysis and drawing conclusions.


These preliminary findings will be jointly considered with GAI experts in order to jointly list out the set of parameters which should be included in the analysis (i.e. the number of accused persons, sector in which the offence occu

5

Information gathering and analysis

In this phase our aim will be to understand and document where anti-corruption cases have succeeded, failed or stalled – and why.


In-depth analysis of complex and highly specific criminal cases, such as anti-corruption cases, will be tremendously work intensive. This is why it will be crucially important to jointly identify and set the criteria for selecting representative (sample) cases – up to 250 of them – in order to capture truly representative findings about the performance of anti-corruption prosecution and adjudication system.


The criteria for selecting sample cases should not be based only on statistical representation of 26 criminal-offenses in total number of cases, but also their recency and current trends, different outcomes of decisions (decided on merits, dismissed, stalled etc.), the geographical location of criminal offenders, financial value of the criminal offense etc.

6

​Presentation of analysis and its findings to key stakeholders

Once the final version of the analysis is approved by GAI, the key findings of the analysis will be presented to representatives of GAI and relevant stakeholders. This will be carried out by the end of project month 5 or earlier, dependent on the Final Report acceptance process.

Conclusion

4DC will conduct a comprehensive learning-oriented analysis of selected corruption cases to provide information to specialized anti-corruption courts and public prosecutors’ offices and other interlocutors (MOJ, Supreme Court, Republic Prosecutor’s Office) on areas for capacity building and improvement.The analysis will focus on detection of trends and patterns in prosecuting criminal offences with elements of corruption in the indicated periods.


At a minimum, the prosecutorial strategies will be assessed through following indicators:

For the public prosecution:

  • Capacity in drafting the indictments
  • Formulation of charges in the indictments
  • Capacity in gathering of evidence to support the charges

For the judiciary:

  • Judicial review of the indictment including the legal qualification of criminal offense
  • Reasoning of judgments
  • Sanctioning
  • Case law harmonization (references to other cases, differences among courts, etc)