Connect with us


Inside Ukraine’s war crimes investigations | Russia-Ukraine war



Warning: This story includes accounts of torture, murder and references to sexual assault that some readers may find disturbing.

Bucha, Ukraine – On March 11, Olesya Masanovec, a sociable 40-year-old manicurist and devoted mother, stepped out of her family’s charming single-storey home onto Yablunska (Apple Tree) Street.

It had been eight days since Russian troops had stormed down the “street of death” as it would later become known by locals, and occupied an office block where they set up a makeshift military base and field hospital.

Olesya’s husband, Nikolay Masanovec, a tall wiry, 42-year-old truck driver and kickboxer, had taken on the responsibility of fetching water every three days with Nikita, their shy 15-year-old son. The pair were forced to walk to a local well after the family’s water supply, which ran on an electric pump, had ceased to work after the Russians cut off the electricity.

Multiple residents told Al Jazeera that Russian soldiers had gone door-to-door, taking any men with suspected military connections or who had tattoos considered nationalistic such as the tryzub (trident), a feature of Ukraine’s coat of arms. Nikolay survived the early interrogations, but he and his son continued to take nervous detours around checkpoints to avoid Russian soldiers.

In recent days, Russian soldiers, including snipers, had begun shooting at civilians along Yablunska Street, an important thoroughfare, as they tried to find food and drink. Satellite images from March 11 show 11 dead bodies scattered along the street.

Despite the dangers, Olesya had decided it was essential to venture out as she had run out of critical medicine she needed for a heart condition and would have to visit a hospital in central Bucha. The route would usually have taken about 30 minutes on foot, but part of the railroad tracks she had to cross had been mined, meaning the journey would likely have taken her longer.

The family had recently cooked the last of their homegrown potatoes and with all the shops closed, they were fast running out of food. So Olesya decided to also visit her friend, Oksana, who had some spare essentials and was living in a makeshift bomb shelter in a kindergarten near the hospital.

Nikolay was nervous as he watched his wife leave their home in the late morning. With jet-black hair and hazel eyes, she was as beautiful to him as she was 22 years earlier when, fresh from his military service, he had crossed the street to strike up a conversation with her.

The telephone signal had been patchy since Russian troops had targeted the local communications infrastructure, so he feared it would be difficult to reach her on her mobile. However, she promised to try to text after leaving the hospital, as soon as she was with Oksana. He also knew she loathed any form of conflict and would never do anything to aggravate the occupying forces.

Nikolay never heard from his wife again.

He spent that afternoon and evening scaling the corrugated steel roof to catch some signal. Eventually, he spoke to Oksana, who confirmed Olesya had never arrived at the shelter. Nikolay says he spent the next three days racked with anxiety. Unable to sleep, he would stare at the ceiling through the night until, eventually, he began to “accept she wasn’t coming back”.

A photo of Nikolay Masanovec (left) and Nadia Masonovec (right) in a room with a shelf behind them.
Nikolay Masanovec and Nadia Zvonok in Nikita’s room. ‘I felt complete emptiness,’ says Nikolay, recalling the moment he saw the body of Olesya, his wife who went missing on March 11 [Nils Adler/Al Jazeera]

‘Complete emptiness’

On March 27, police rang Nikolay to say they had identified Olesya’s body from a photo of numerous dead bodies found in a small square near Bucha train station, a short distance from the hospital.

Upon hearing the news, Nikita, who had remained quiet and withdrawn during the two weeks his mother was missing, ran to the garden and punched two holes in the wooden casing of the family’s electric water well.

A few days later, when Russian forces had withdrawn from the area, Nikolay travelled to the local morgue by bus to identify the body with Nikita and two friends.

“The moment I saw her body, I felt complete emptiness,” he recalls before taking a long deep breath. “I saw her face and the (mandala) tattoo on her wrist, which had been partially burned.”

The city administration was in chaos. The morgue, short of staff, had run out of room for all the dead bodies arriving from the mass graves that had been discovered. Overwhelmed, the coroner had only managed to write a brief report stating that Olesya had died after being struck with a blunt object. According to the report, the date of her death was March 25, meaning she had been alive for about 14 days after she went missing.

Nikolay sits slumped on a wooden kitchen stool as he pulls up a photo of his wife’s body on his phone. Nikita sits on his parents’ bed in the adjacent room with his hood up and a distant gaze. He is a gentle boy who will enthusiastically talk about his hobbies, including gaming, programming, and kickboxing – but when it comes to the subject of his mother, he withdraws.

Nadia Zvonok, Olesya’s grandmother, a gentle and lively woman of 82, dabs her eyes with a tissue as she recalls her granddaughter as a child. She describes a happy, sometimes mischievous girl who loved to play games like hide and seek and grew up to become a responsible, loving, and patient mother.

Nikolay and Nadia walk into Nikita’s cluttered bedroom. Nikolay proudly lifts a painting of a pair of red lips by Olesya from a large, glass display cabinet. “She was very creative. She was always making art,” Nadia recalls fondly. A passport photo of Olesya sits among the row of sports trophies. It was taken around the time she first met Nikolay.


War crimes and crimes against humanity

Russian forces first entered Bucha in late February 2022 as they launched an invasion of Ukraine and attempted to make their way to Kyiv, the country’s capital, 25km (16 miles) southeast of Bucha.

Ukrainian resistance repelled the initial advance, forcing Russian troops to withdraw from the area before re-grouping and returning on March 3. What followed was a brutal campaign of violence against the local population.

When Russian forces withdrew from the Kyiv region at the end of March, evidence of mass graves and civilian executions began to emerge. In response, an ad hoc collaborative network of international and domestic bodies started documenting the many cases like Oleysa’s that could support investigations into possible war crimes and crimes against humanity.

Ukraine’s Prosecutor General’s Office, the Security Service of Ukraine and regional police forces are working to collect evidence of these potential crimes along with the International Criminal Court (ICC), which launched a nationwide investigation on the fourth day of Russia’s invasion. In mid-April, during a visit to Bucha, Karim Khan, the ICC’s chief prosecutor, said: “Ukraine is a crime scene.”

Earlier in the month, a team of French forensic experts joined local investigators in exhuming and identifying bodies in Bucha.

War crimes include a wide range of serious violations of international law set out in the Rome Statute, including the killing, torture, and rape of civilians during armed conflict. In addition, the deliberate destruction of civilian infrastructure is also considered a war crime.

Crimes against humanity codified in the same Statute include murder, enslavement, torture, and forcible deportation of a population “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. Crimes against humanity, unlike war crimes, can also occur during peacetime.

There are 123 countries members of the ICC. Russia withdrew its intention to join in 2016 after the court classified the Russian annexation of Crimea as an occupation. Ukraine is also not a member of the ICC but has granted jurisdiction to the court to investigate war crimes on its territory.

A photo of Oleksandra Matviichuk looking to the side.
Oleksandra Matviychuk of the CCL says they currently have more than 8,000 cases in their database, including accusations of murder, torture, beatings and rape by Russian forces [Nils Adler/Al Jazeera]

‘Tip of the iceberg’

Oleksandra Matviychuk, head of the board for the Center for Civil Liberties (CCL), a human rights organisation supported by the European Commission and the UN Development Programme, says they are finding it “impossible to cope” with the sheer number of testimonies coming in every day. The CCL supports the Ukrainian authorities and the ICC with collecting testimonies.

Matviychuk has been working on human rights cases for more than 20 years, including multiple instances of torture, kidnapping, and murder committed by Russian forces and pro-Russian separatists in Crimea and Donbas since the armed conflict began in early 2014.

She believes it is important to acknowledge that Ukraine is still a young democracy working on rooting out institutional corruption. As a result, the CCL has worked on developing legislative initiatives for reform of the country’s major institutions including the security service, judicial sector and police force.

But she is visibly distressed when she describes the alleged war crimes committed by Russian forces in Ukraine since February. Matviychuk says such acts are a “cruel military tactic” deployed by Russia during conflicts “to achieve their geopolitical goals”, but she was still unprepared for the “sheer scale and brutality” of their recent actions.

The CCL currently has a few hundred volunteers sifting through testimonies, medical documents, and other evidence sent in by people who complete a screening process and questionnaire, and who say they have been the victims of or witnessed crimes committed by Russian forces. They also collaborate with a number of regional human rights organisations that provide evidence to a shared database. They currently have more than 8,000 cases, including accusations of beating, looting, murder, torture, kidnapping, and rape, in the CCL database that they can share with the police and the security service. She says this is “only the tip of the iceberg”.

Matviychuk says she would process any report of possible war crimes, even if it was committed by a Ukrainian. “I am a human rights defender and defend people whose rights are violated regardless of the side. In this war, we are fighting for our democratic choice, so it’s important for us to stay in line with international humanitarian law.”

Matviychuk says Ukraine needs more international support, as domestic capacity is overwhelmed. “At the international level there is only one effective mechanism that can provide justice and that is the ICC,” she says, “but they only look at a few cases.”

Ukrainian authorities have currently opened 16,000 investigations into possible war crimes, more than the most capable country could investigate, she says.

“Ukraine does not have the capacity to process all the war crimes committed,” Matviychuk adds.

A photo of a table and chair in a dirty, rusty room with a wall of a mechanical device in front of the table and chair and a box of papers and gloves and cloth on the side of it on top of the the table.
Kyiv regional police claim this room was used to torture Ukrainian citizens suspected of having ties to the military [Nils Adler/Al Jazeera]

‘People were tortured’

More than 1,000 bodies of civilians have been discovered in the Bucha region since Russian forces withdrew from the area. According to the Kyiv police, some 650 people were executed.

On May 19, the New York Times published a story that documented how Russian forces had allegedly executed at least eight people at their makeshift base at the office block on 144 Yablunska Street on March 4.

Russia has regularly denied that any atrocities were committed in Bucha, describing footage of bodies in the area as “staged”.

Al Jazeera visited the location on May 21 with a special police investigation team, including forensic experts collecting evidence of possible war crimes.

In the small bleak courtyard located next to the grey building that Russian troops had used as a base, and where the executions reportedly occurred, a vase full of flowers stands near a small pool of coagulated blood on the floor.

Natalya Kozhevnykova, a police investigator, peers at the bullet holes scattered across the courtyard, placing a series of numbered markers around them, and asking her colleague to take a picture. A resident of Bucha, she describes this job as “deeply personal”.

Kozhevnykova and two colleagues enter the office building where Russians had set up a base, making their way through a series of cold, dank corridors and down a steep staircase into the bowels of the building.

Boxes of food rations emblazoned with the distinctive star logo used by the Russian military are strewn over tabletops, and countless administrative papers lie scattered on the floor.

Eventually, they reach a room with a network of electrical cables and valves covering the bare concrete walls. In the centre of the room sits a single wooden chair and table. A filthy cloth and heavy-duty gloves lie beside two empty cardboard boxes. A towering plain-clothed police investigator puts a finger on the chair. “This is where people were tortured,” he says, before pointing to a wire mesh partition that forms a dingy storage enclosure, “and that is where they were they kept prisoners”.

A photo of the police officer Natalya Kozhevnykova speaking to someone who is pointing to an alley.
Police investigator Natalya Kozhevnykova speaks to a local man about information he has gathered about the alleged killing of at least eight Ukrainians [Nils Adler/Al Jazeera]

‘Repeat offenders’

Outside, in a warehouse where Russian troops kept their tanks and weaponry, Kozhevnykova finds an array of ammunition that survived the burning inferno left by the Russians as they withdrew. She dusts for prints and takes photos. Her team collects as much personal information as they can about the individuals who allegedly perpetrated war crimes.

Kozhevnykova claims that since February 24, the police have identified several “repeat offenders” – Russian soldiers accused of recent crimes around Kyiv that matched earlier records from Crimea or Donbas in their database.

The CCL has also logged similar cases. “We have identified people who have been present in different conflicts like [in] Abkhazia, Ossetia, Transnistria, Crimea and Donbas,” says Matviychuk. The CCL now has a list of “several dozen people” according to her, higher-ranking officials, or leaders of armed groups. For Matviychuk the presence of “repeat offenders” suggests that the alleged war crimes committed by Russian forces are part of a “systematic plan and behaviour encouraged by the Russian Federation”.

Three kilometres (1.9 miles) from 144 Yablunska Street, Oleh Karpov, a 48-year-old truck driver, and good friend of the Masanovec family, was taken from his home at gunpoint by Russian troops.

His friend and neighbour had been found with a phone, which was prohibited under occupation, so Russian troops had detained any man associated with the suspect.

The soldiers beat his knees with their rifles before knocking out several teeth. His speech is still impaired from the damage to his mouth.

He takes a long drag from a cigarette as he recalls the moment his hands were tied behind his back and the soldiers violently pushed him against the wall. He says they lifted his clothes to look for any tattoos of Ukrainian symbols. Able to understand what they said in Russian, he says he realised the group of soldiers had decided to execute him and the other men. Fortunately, the soldiers received a radio call to move out. “You are lucky,” one of the soldiers said as they left.

During his time under occupation in the centre of Bucha, Karpov saw “many dead bodies” and vividly recalls the constant uncertainty locals felt while running essential errands. “If you passed a checkpoint and you were lucky, they wouldn’t shoot you; if you were with your child, they probably wouldn’t shoot, but not always,” he says. “You just never knew.”

A photo of Oleh Karpov walking on a sidewalk with someone next to him.
Oleh Karpov, 48, says he was badly beaten by Russian soldiers during the occupation of Bucha and has teeth missing and broken from the beatings [Nils Adler/Al Jazeera]

Sexual violence: ‘The most hidden crime’

Karpov says local women in the area were under a constant threat of sexual violence from Russian troops.

Standing by a small bus station in central Bucha, he points at a part of the street near the entrance to Bucha railway station, where he says a notorious checkpoint stood. His mother, who watched from the window every day, told him that the soldiers would specifically stop and harass women with dark hair. Karpov says this was where many women went missing.

Karpov, who had accompanied Nikolay and Nikita to the morgue to identify Olesya’s body, says he spoke privately to a female police officer who told him that her body had shown non-fatal injuries consistent with rape, information which he has since told his grieving friend.

The chaos that ensued after the Russian withdrawal here meant the morgue was over capacity and understaffed. To further investigate her death, the police officer advised the family to open an inquiry at a later date.

Matviychuk believes that acts of sexual violence are “the most hidden crimes” committed by Russian troops in Ukraine. “When you are tortured, you feel shame, but you will still talk, but when you are raped, you feel shame, but you don’t talk,” she says, adding that this makes it difficult to quantify exactly how many cases there have been. A fear that Russian troops will eventually return to the region has also stopped many people from reporting potential war crimes, according to Matviychuk.

Irina Pryanishnikova, a spokesperson for the Kyiv region police force, says that although the issue of sexual violence under occupation is widespread, “the victims are not ready to talk about it”. As a result, police in the Kyiv region have only processed two cases, including one where the perpetrators allegedly killed the survivor’s husband and held her young son hostage before raping her multiple times.

As of June 3, the Office of the United Nations High Commissioner for Human Rights (OHCHR) had received reports of 124 alleged acts of conflict-related sexual violence – mostly against women and girls – across Ukraine.

The UN’s special envoy for sexual violence in conflict, Pramila Patten, listed several incidents to the Security Council on June 6 recorded by a national hotline for domestic abuse. They include rape, gang rape, pregnancy following rape, attempted rape, threats of rape, coercion to watch an act of sexual violence committed including against a partner or a child and forced nudity.

A photo of a railway that had been struck by a missile.
The site in Malyn of a long-range missile attack by Russia [Nils Adler/Al Jazeera]

Missile attacks

Since the war began, there have been daily air raids across the country, killing civilians and damaging vital infrastructure.

In eastern Ukraine, one such attack in the city of Kramatorsk killed more than 50 people, including five children, waiting for trains to evacuate the area, prompting Ukraine’s President Volodymyr Zelenskyy to call for a future global war crimes tribunal. In a presidential address, he said, “Like the massacre in Bucha, like many other Russian war crimes, the missile strike on Kramatorsk must be one of the charges at the tribunal, which is bound to happen”.

On May 20, Russia launched a long-range missile attack on the railway station of the northern Ukrainian city of Malyn. The mayor of Malyn, Oleksandr Sytaylo, announced in a video message that day that about 100 houses near the station had been damaged. The Malyn attack and others are being investigated as possible war crimes.

The attack had left a large crater, about four metres deep and eight metres wide (13 by 26 feet), in the middle of a tangle of railway lines, a vital route for trains travelling between the east and west of the country. The intensity of the blast ruptured a pair of tracks, leaving them contorted and angled towards the sky.

Alexander Kostolomov, 35, lives a few hundred metres from the blast. According to the local authorities, his home had been spared considerable damage due to an idle storage wagon that had blocked most of the shrapnel and shockwaves emanating from the attack.

He describes how he and his wife had long stopped reacting to the air raid sirens, so when the explosion occurred, panic gripped them. His dog, a tough Staffordshire bullterrier, began to bark uncontrollably, as Kostolomov led his terrified wife under the stairs for shelter before heading out to help people injured in the blast.

Victor Kulish, a 45-year-old railway worker, was ending his shift when the missile hit. He had just picked up a broom to sweep the courtyard of a gated storage area owned by Ukrzaliznytsya, the state rail company, when the impact occurred just over 100 metres (328 ft) away. Shrapnel flew through the wire fence surrounding the facility, slicing his skin and clothes several times and injuring two of his colleagues. He has a cut across the bridge of his nose where a piece of shrapnel flew past him, which he dismisses as “just a scratch” but says his colleagues “are still in hospital”.

As he speaks, an air raid siren begins to wail and everyone is moved out of the area. Vasyl Volotovskyyi, a 21-year-old student from Kyiv, points to the sky as people filter out of the station and says, “with these missiles, they [the Russians] want to exhaust us emotionally”.

Russia claimed they had hit a large delivery of weapons from the United States and Europe in the attack.

According to Kulish, there was no weapons delivery, “only a civilian train full of civilians parked here before the missile attack”.

“Thank God it had just left before the missiles struck,” he says. Al Jazeera was unable to independently verify if a delivery of weapons was destroyed.

A day later, on March 22, there was another missile attack on the railway station in Malyn, killing one Ukrzaliznytsya employee and injuring four others.

Matviychuk says the CCL has documented “hundreds of cases where Russian troops attacked civilian infrastructure, schools, churches, railway stations and residential buildings”, which she says is designed to drain resources that could have gone to military engagements and the defence of Ukrainian cities.

A photo of someone holding an old passport photo of Olesya Masonovec.
An old passport photo of Olesya Masonovec. She was roughly 19 at the time. At 40, she became one of the victims of Russia’s occupation of Bucha. ‘I just want justice,’ says her husband Nikolay [Nils Adler/Al Jazeera]

‘Cycle of impunity’

Matviychuk is worried that if Russian attacks on civilians and civilian infrastructure in Ukraine are not stopped, a “cycle of impunity” will continue.

“Russia wants to win this war by inflicting enormous pain on civilians,” she says. However, she says, some of the alleged crimes, such as the rape of children, as having “no logical justification”.

Having listened to countless testimonies over the past few months, Matviychuk is visibly emotionally exhausted as she sits in her small Kyiv office. “As human rights defenders we work with human pain,” she says. For now, she says she is afraid to address the emotional trauma of the last few months, certain that it has left her “broken”.

The UN special rapporteur on extrajudicial summary or arbitrary executions, Morris Tidball-Binz, recently called for “proper coordination” between national and international investigators. It was important, he said, to avoid “the re-traumatisation of victims and witnesses arising from being interviewed multiple times by different investigators”.

On May 23, a court in Kyiv sentenced Russian soldier Sergeant Vadim Shishimarin to life in prison in the first war crimes trial since the invasion began. Shishimarin, 21, had shot Oleksandr Shelipov, 62, in the head in the northeastern region of Sumy on February 28.

There has not been a full police investigation into the death of Olesya. Nikolay would have to file a report. It is a step, he and his family, who are still coming to terms with her death, are not ready for right now, especially since he believes the authorities are already stretched beyond capacity.

“Maybe after the war,” he says. “I just want justice. I want to see the perpetrators in prison.”

Source link

Continue Reading
Click to comment

Leave a Reply

Your email address will not be published.


Angolan journalists continue to face criminal insult and defamation proceedings




New York, June 30, 2022 – Angolan authorities should drop criminal defamation and insult investigations into journalists Escrivão José, Óscar Constantino, and Fernando Caetano and ensure that investigative journalism is not criminalized, the Committee to Protect Journalists said Thursday.

The three journalists each told CPJ that they are facing ongoing legal processes over criminal defamation and insult complaints about their work.

“The spate of spurious criminal defamation cases against journalists in Angola shows that politicians and powerful figures are allergic to public scrutiny and are taking advantage of colonial-era laws to criminalize journalism,” said Angela Quintal, CPJ’s Africa program coordinator, in Johannesburg, South Africa. “Prosecutors must stop pandering to elites who want to keep citizens in the dark and should refuse to entertain such cases in line with a 2010 resolution by the African Commission on Human and Peoples’ Rights urging African Union members states to abolish criminal defamation and insult laws.”

Convictions for criminal defamation carry prison terms of up to 1.5 years and a fine set by a judge; insult convictions carry one year and a fine, according to the penal code and Nelson Custódio, a local lawyer who represents both Caetano and Constantino, and who spoke to CPJ via messaging app. CPJ has recently reported on several other criminal defamation cases against journalists in Angola.

On June 6, investigators with the police criminal investigation service in the capital, Luanda,  sent a summons to José, editor of the privately owned newspaper Hora H, and on June 13 they questioned him in relation to defamation and insult complaints filed by Bento Bento, the ruling People’s Movement for the Liberation of Angola (MPLA) first secretary in the capital, according to news reports and the journalist, who spoke to CPJ via messaging app.

Bento’s complaints stemmed from a March 29 report by Hora H’s affiliated online video outlet, in which José covered corruption allegations involving a land deal by Bento, José told CPJ. Authorities released José after classifying him as “arguido,” or a formal suspect in criminal proceedings, a necessary step to possibly being charged with a crime or arrested.

José told CPJ that Hora H had sought Bento’s comment more than a month before publishing their story.

“Instead of any reply to our questions, Bento chose to intimidate journalists by using his political weight to sue us,” José said, adding that this was the 24th criminal defamation suit he had faced over his work. He said most of those cases were unresolved, and some had closed without a formal prosecution.

CPJ called Bento and contacted him via messaging app for comment but he did not answer.  

Separately, on June 20, a judge in the province of Kwanza Sul held a hearing in criminal defamation and insult cases against Constantino, a reporter for the Catholic Church-owned broadcaster Radio Ecclésia, according to news reports and Constantino, who spoke to CPJ via messaging app.

That case stemmed from complaints filed by Morais António, the former president of the provincial electoral commission, over a 2020 report by the journalist about António’s resignation amid an alleged sex scandal, according to those sources. Constantino has been classified as arguido in that case since 2021, he told CPJ.

He said his court appearance in the case is scheduled for July 6, when he expects to learn whether he has been convicted. The public prosecutor had asked for the charges against Constantino to be dropped because of a lack of evidence, according to news reports and Custódio.

António told CPJ by phone that he believed Constantino “went beyond the facts in his reporting” and accused the journalist of failing to publish his reply to the allegations. Constantino told CPJ he stood by the reporting, which he said was based on António’s resignation letter.

António also filed separate criminal defamation and insult complaints against Caetano, a correspondent for the U.S. Congress-funded broadcaster Voice of America and the news website Club K in Kwanza Sul province, over a December 2017 report by Club K about alleged corruption in the management of the provincial electoral commission, the journalist told CPJ by phone. Caetano said he was notified of his status as arguido in the case in November 2021.

That 2017 report was published under someone else’s byline, and featured a photograph that was later reused in an unrelated report written by Caetano in December 2019, Caetano told CPJ. He said he was not the author of the 2017 report and had “no say” in the photo in the 2019 article, adding, “This is a good example of how easily journalists can get sued in Angola for next to no reason.”

António told CPJ that Caetano must prove that he was not the author of the 2017 report, as the photograph was the same and Caetano was the only Club K reporter in the province.

“If it is not him so who is it?” António said, noting that the 2017 article alleged that he had embezzled money.

Caetano had his first court hearing in that case in March, according to Custódio. The case was adjourned and a date for the next hearing had not been set by June 29, Custódio said.

Kwanza Sul public prosecutor Mário Sacuiema told CPJ in a phone interview that he could not comment on Constantino or Caetano’s cases, and confirmed that a date for Caetano’s next court hearing had not been set.

Source link

Continue Reading


CCOs and Execution of Compliance Certification: A Significant Risk? (Part III of III)




CCOs, by definition, are careful and deliberate.  It comes with the profession.  As risk managers, CCOs are skilled in identifying, assessing and acting in a risk environment.

The impact of the new CCO certification requirement, however, presents serious risks that cannot be brushed off or ignored in the face of assurances that prosecutorial discretion will protect CCOs from misguided prosecutions.  Frankly, CCOs recognize that there is too much at stake, including their careers and their liberty interest. 

DOJ’s new requirement was designed and rolled out in good faith, in an attempt to bolster the standing of CCOs in the corporate governance landscape.  To address the potential negative reaction to the certification requirement, DOJ included an important provision in its Glencore FCPA plea agreement.

As set out by DOJ, a CEO and CCO would be required to execute the form Certification thirty (30) days prior to the end of the Independent Compliance Monitor’s Term, which in the case of Glencore is a three-year term.  Paragraph 10 of the Plea Agreement sets out the following important language:

Where necessary and appropriate, the Defendant will adopt new or modify existing internal controls, compliance policies, and procedures in order to ensure that the Defendant maintains: (a) an effective system of internal accounting controls designed to ensure the making and keeping of fair and accurate books, records, and accounts; and (b) a rigorous anti-corruption compliance program that incorporates relevant internal accounting controls, as well as policies and procedures designed to effectively detect and deter violations of the FCPA and other applicable anti-corruption laws. The compliance program, including the internal accounting controls system, will include, but not be limited to, the minimum elements set forth in Attachment C. The Office[r]s, in their sole discretion, may consider the Monitor’s certification decision in assessing the Defendant’s compliance program and the state of its internal accounting controls.

DOJ’s last sentence in Paragraph 10 contemplates that the CEO and CCO may, in their discretion, may consider the Independent Compliance Monitor’s certification, in reaching their own determination as to the state of the Company’s compliance program. 

Another significant consideration is the language of the CEO and CCO certification itself — which states that “such anti-corruption compliance program is reasonably designed (emphasis added) to detect and prevent violations of the [FCPA] and other anti-corruption laws throughout the company’s operations.”

In effect, CEOs and CCOs  can rely on the Independent Compliance Monitor’s certification and the limitation on its certification that the compliance program is “reasonably designed” to detect and prevent violations of the FCPA.

Even with these positive factors, however, CEOs and CCOs will need to design and implement an appropriate procedure to document their respective due diligence and analysis of the Company’s compliance program.  This consideration, at first glance, appears to be straight-forward but could quickly unravel into difficult issues.

A CCO should be able to rely on and document any internal and external reports, assessments, and reviews of the Company’s compliance program conducted as part of the remediation effort.  DOJ clearly contemplates that a Company’s compliance program over a three-year monitorship period will undergo significant change and improvement.  By definition,  a CCO will be intimately involved in this process.

The CCO’s ability to rely on these reports, assessments and reviews may require a personal review and evaluation to justify such reliance.  CCOs need to evaluate when a further examination of a specific report may be warranted.  In this situation, a CCO may have to devote and document follow-ups to specific issues flagged in the report, assessment and review.  CCO will inevitablye face difficult situations where reliance on a report may not be completely justifiable.

A further complication may arise when a Company subjects its compliance program to a robust testing and evaluation by an outside party.  in these circumstances, an independent test of an enhanced compliance program may require a CCO to review the test results carefully with a questioning eye.  This process may, in turn, delay the CCO’s certification or even raise further issues requiring analysis and review.

The risks presented by even these obvious situations are even more troublesome given the legal risks posed by acknowledgement that a “false” certification would constitute a violation of the False Statements and Obstruction of Justice criminal statutes, 18 U.S.C. §§1001, and 1519, respectively.  By conceding the issues of “materiality” under 18 U.S.C. §1001, and “tangible record” under 18 U.S.C. §1519, a CCO may be setting him or herself up for a criminal prosecution where the issue may not rise to a criminal violation.

CCOs have enough problems in the corporate governance world.  On balance, it is difficult to maintain that the CEO and CCO certification requirement is a net plus for CCO stature in the corporate governance landscape.

Given the controversy surrounding this issue, I fully expect there will be more discussion between the CCO community and DOJ.  After all, DOJ’s most important ally in the corporate world is the CCO — and DOJ should avoid any negative impact on such a critical ally.

Source link

Continue Reading


First election in Caricom this year brings change




Grenadians this week began living under a new government following general elections late last week that saw a government which had won all 15 seats in the previous two elections suffer an electoral meltdown, losing nine of those parliamentary slots as the New National Party (NNP) heads into the opposition.

The Caribbean Community’s first major elections for this year mean that attorney Dickon Mitchell, 44, has been sworn in as Grenada’s new prime minister replacing long-serving Keith Mitchell—no known relation—after becoming party leader just last October.

Clearly tired and worn out by Mitchell and the NNP, Grenadians decided to give the fresh-faced attorney and the National Democratic Congress (NDC) a chance to run the mini archipelago that also includes Carriacou and Petite Martinique for the next five years.

Keith Mitchell and Mia Mottley of nearby Barbados were the only two leaders in the 15-nation bloc whose governing parties had held every single parliamentary seat and had run their countries largely without any opposition in an atmosphere of peace. In the case of Grenada, Mitchell had done it three times in the past 20 years but voters say they have had enough of nepotism, corruption, a weak economy and other problems besetting the country.

Dickon Mitchell was sworn in at the weekend as the nation’s ninth prime minister and immediately warned about a possible purge of the public service of hundreds of political appointees.

“Under my leadership I intend to break that vicious cycle of nepotism. The key criteria will be merit in particular as it relates to the government service in all aspects including the police, nurses, teachers and doctors. We need to run our country based on merit, hard work, the desire and willingness to overcome and to find solutions to the challenges that face us. We will not move forward or prosper as a people on the sole basis for job selection, promotion, for the award of contracts on party loyalty or personal loyalty,” he told a weekend forum.

Source link

Continue Reading
New York6 seconds ago

EXCLUSIVE AUDIO: Biden voicemail telling son Hunter 'you're in the clear' on NYT article

Civil Rights Violations1 min ago

Russia tells BBC “we did not invade Ukraine” and there is “no war” there – BBC News

Military Corruption2 mins ago

Eliot Cohen on "Seeing the Russian Military Clearly"

Police Bribery7 mins ago

High court makes major decision on New York concealed gun law

General11 mins ago

Angolan journalists continue to face criminal insult and defamation proceedings

World13 mins ago

Police search for Harrisburg man convicted in absentia for having indecent contact with 8-year-old girl in 2017

Police Brutality27 mins ago

Dozens of calls to US law enforcement resulted in death

New York1 hour ago

ABC News Live: Supreme Court strikes down New York concealed carry gun law l ABCNL

Civil Rights Violations1 hour ago

SCOTUS Gun Stun: Bearing Arms in Summer Bruen Decision

Military Corruption1 hour ago

Is Russian Loss A Possibility In Ukraine? Why Collapse Of Putin’s Mighty Army Cannot Be Ruled Out

Police Bribery1 hour ago

The Mystery of the $200 Million Drug Bust | The War on Drugs

World1 hour ago

ACB traps Superintending Engineer while allegedly accepting Rs.15 lakh bribe

Police Brutality1 hour ago

Videos show violent encounter between Medford police and man accused in trespassing case

New York2 hours ago

What a return of the Marcos family could mean for the Philippines | DW News

Civil Rights Violations2 hours ago

Top U.S. & World Headlines — June 24, 2022

World8 months ago

Albanian Daily News

North America9 months ago

Administration’s Anti-Corruption Efforts Likely to Yield Greater FCPA Enforcement in Latin America and Beyond | Womble Bond Dickinson

Military Corruption6 months ago

Judy Byington intel Restored Republic via a GCR update 9 January 2022 US News Today

North America8 months ago

Heidi Planck missing update – Jason Sugarman ‘probed over a $43M fraud’ as Reddit & Webslueth users seek LinkedIn clues

Military Corruption6 months ago

Nicholas Veniamin with Michelle Fielding: TRUMP WIN and ROLL OUT, QUANTUM SYSTEM, MILITARY!

World6 months ago

Prison governor arrested over bribery and drugs allegations at Wormwood Scrubs

North America9 months ago

Brian Laundrie timeline – What Gabby’s fiancé did as throttled body lay outside from camping with sister to hitchhiking

World9 months ago

Behind the blue line: Investigating Abdullah Shah

General9 months ago

Who Is Curtis Sliwa? A Look at the GOP Mayoral Candidate’s Wild Ride in New York

North America9 months ago

Former Boeing 737 MAX Chief Technical Pilot Indicted for Fraud | USAO-NDTX

North America9 months ago

Brian Laundrie update: Where does the search stand now?

General9 months ago

U.S. Arrests Alex Saab, Deal Maker for Nicolás Maduro of Venezuela

Police Bribery6 months ago


North America9 months ago

Gabby Petito autopsy update – John Walsh ID Special Report ‘claims Brian Laundrie is in Mexico’ as fiance still missing

North America9 months ago

Founder of Russian Bank Pleads Guilty to Tax Fraud | OPA