German police clearance may have been forged or faked

A developing story out of New Zealand indicates a government inquiry has been launched into Kim Dotcom’s (born Kim Schmitz) residency as legal experts doubt his alleged clear criminal record.

Dotcom is a German-Finnish computer programmer and businessman who rose to prominence during the dot-com bubble and was convicted of insider trading and embezzlement in its aftermath. He is also known as the founder of Megaupload and its associated websites. He legally changed his surname to Dotcom circa 2005. On January 20, 2012, the New Zealand police placed him in custody under the charges of criminal copyright infringement in relation to his Megaupload website.

German law dictates Dotcom’s convictions should not have been wiped before 2017 and one lawyer believes he may have forged his way into New Zealand.

Arriving in New Zealand, every foreign national must present a police clearance form and until now New Zealand’s Prime Minister John Key has insisted Kim Dotcom’s was clean, but yesterday admitted their background checking process is flawed and that a Government inquiry is underway.

“There’s clearly an anomaly between the way the law is interpreted with tests between residency and the Overseas Investment Act because one looks at convictions and one looks at records and that’s a slightly different test,” says Prime Minister John Key.

Regardless of how the law was interpreted it’s clear that New Zealand’s residency and immigration background check program is severely flawed if source documents are not validated.

South African Police Clearance Certificate obtained through corruption

Former South African police constable was recently found guilty of corruption for selling “clean” police clearance certificates. Through various South African media sources, a former police constable was fined R10,000 or six months in prison for corruption by the Bellville Specialized Commercial Crime Court this past Monday.

Thanduxolo Mbeke, 31, was sentenced to an additional two years in jail. According to court records, Mbeke accepted a R1500 bribe for a police clearance certificate. He subsequently pleaded guilty.

In November of last year, the Western Cape directorate for public prosecutions authorized a sting operation after Mbeke requested R2000 from bus owner Moosa Moolla.

Moolla reported Mbeke immediately to the Cape Town Central vehicle identification section (VIS), which assisted in the arrest.

A month later, Moolla returned to the VIS and gave Mbeke the money who accepted it and immediately issued a “clean” police clearance certificate without actually checking Moolla’s records.

Conclusion: this recent story exemplifies the need for global and transnational organizations to ensure that screening providers of international or global background screening services comply with required Foreign Corrupt Practices Act and Anti-Bribery compliance requirements. For assistance in evaluating such risk please feel free to contact us.

Malaysian Immigration Department Removes Certificate of Good Conduct Requirement, Oh My!!

Malaysian Immigration Department Removes Certificate of Good Conduct Requirement, Oh My!!

At a time when many countries throughout the Asia Pacific Region are combatting terrorism, illegal immigration, human trafficking, forged identity documents, and Certificates of Good Conduct (criminal record checks) it appears Malaysia may be making it easier for criminals to beat the system.

A recent report from a third-party immigration assistance firm related that the Malaysian Immigration Department recently announced that it will eliminate the requirement for foreign nationals to undergo a Certificate of Good Conduct Certificate process through the  Malaysian Ministry of Foreign Affairs Office when applying for a Residence Pass.

This at a time when Malaysia was upgraded to Tier 2 from Tier 3 in the United Stated Trafficking in Persons (TIP) Report for 2010.

According to the TIP Report the following is a description of the Tier Placements:

TIER 1

Countries whose governments fully comply with the Trafficking Victims Protection Act’s (TVPA) minimum standards.

TIER 2

Countries whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards.

TIER 2 WATCH LIST

Countries whose governments do not fully comply with the TVPA’s minimum standards, but are making significant efforts to bring themselves into compliance with those standards AND:

a) The absolute number of victims of severe forms of trafficking is very significant or is significantly increasing;

b) There is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year; or
c) The determination that a country is making significant efforts to bring itself into compliance with minimum standards was based on commitments by the country to take additional future steps over the next year.

TIER 3

Countries whose governments do not fully comply with the minimum standards and are not making significant efforts to do so.

Sri Lanka police introduces SMS service to track status of Police Clearance Certificate

Sri Lanka Police on its 145th anniversary yesterday, launched a new service of SMS to track the status of the Police Clearance Certificates (PCCs).

The SMS service, named as Police Clearance Certificate Status Tracking SMS Service, is offered in collaboration with the Information and Communication Technology Agency (ICTA) .

The new service will benefit persons who request police certificates for various purposes such as local and foreign employment.

Under the new system applicants can type PLC(space)CRT followed by the assigned reference number on their mobile phone and send it to 1919 to find out the status of their PCCs.

Mexico – Country Background Screening Essentials

By Terry Corley, Aletheia Consulting Group

Good Practice Guidance: Potential candidates may be required to consent to background checks in Mexico, including requests about their criminal history, consumer credit, and motor vehicle records, as a condition of employment. If consent is not provided, an employer may legally refuse to hire a potentially qualified candidate. An employer must request the background check of an applicant prior to extending an offer of employment. The applicant must then decide if they will consent to undergo the background check process. Employers must be able to demonstrate proof of consent. In order to substantiate valid consent was obtained it must include specific language indicating that the candidate agrees to the background check.

There is no one specific law governing background screening in Mexico, however various pieces of legislation do cover parts of the screening process. These areas include the following:

• Constitution of Mexico,
• Mexico Federal Freedom of Information Act (FOIA)
• Federal Law on the Protection of Personal Data in the Possession of Private Entities,
• Federal Law of Transparency and Public Access to Government Information,
• Transparency and Access to the Federal District Public Information Law

Since 2002, the Mexico Federal Freedom of Information Act (FOIA) protects personal data collected by the government, and guarantees the related treatment, including access by individuals and the possibility to replace, rectify, complete or correct such information (habeas data). The main objective of Mexico’s FOIA is to guarantee the protection of personal data and to promote a culture concerning its treatment.

Culturally it is common practice throughout Mexico for candidates to obtain and provide an employer with a copy of their Letter of No Criminal Record (“Carta de No Antecedentes Penales” also known as “Certificados de No Antecedentes Penales“) as a condition of employment.

Pending changes in law or regulation

The most recent development to the legal landscape in Mexico was this passage of the Federal Law on the Protection of Personal Data in the Possession of Private Entities July 2010.

The Federal Law on the Protection of Personal Data in the Possession of Private Entities regulations comply with the internationally recognized principles such as: lawfulness, quality, access and correction, information, security, custody and consent.

This new regulation is based upon the OECD models, the European Directive and the principles of APEC.

Violations of the new privacy regulation can carry severe civil and criminal liability

Criminal Record Governing Legislation

Criminal information maintained by Mexican courts and local Federal Public Ministry (MPF) (“Ministerio Publico Federal”) agencies (local law enforcement agencies) is not classified as public information and cannot be accessed directly by a third-party.

Federal and individual Mexican state attorney general authorities however promulgate regulations that govern access to and dissemination of Certificates of No Criminal Record (“Certificados de No Antecedentes Penales“) to data subjects throughout Mexico for immigration as well as for employment purposes from the following agencies.

- Federal Attorney General’s Office – “Procuraduría General de la Repúblíca”, or

- Attorney General of the State Justice – “Procúraduría General de Justicia de Estado”

Requests for Letters of No Criminal Record can either be submitted and retrieved from most agencies by a candidate themselves and or their designated legal representative.

As an example the Attorney General, Expert Services Division, San Luis Potosí Mexico (in Spanish) publishes instructions to the public for how they may apply for their own “Letter of No Criminal Record” (in Spanish).

Current laws and regulations related to the collection, dissemination of criminal records by the San Luis Attorney General’s Office are the following:

Organic Law of the Attorney General of the State of San Luis Potosi Article 36 Subsection XVII, 37 (POE 07/07/2009) Regulation of the Organic Law of the Attorney General of the State of San Luis Potosi Article 19 fraction X , 77 , 78, 79 and 80 (POE 12.19.2009) Finance Act for the State of San Luis Potosi Article 92 Fracc. II (POE 12/19/2009).

Permissible Screening Components

Identity Validation

• Instituto Federal Electoral Card, or
• Mexican National Passport

Criminal Record Check

• Attorney General of the State Justice (Statewide),
• Federal Attorney General of the Republic of Mexico (Federal),
• Attorney General of the Federal District (Federal District), or

Police Clearance Authentication of Mexican Certificates of No Criminal Record

Mexican State & Federal Fugitive Search

Academic Verification

Employment History

Mexican law requires employers to respond to employment verification requests by providing an employee’s termination date, position held, and the terms and conditions of thier employment. While an employee’s consent is required, either verbal or written consent by an applicant who is the data subject of the request is considered sufficient.

Professional Credential Verification

Reference Interview

Civil Suits & Judgments

Directorship Search (Conflict of Interest Search)

Restricted Party Search

Database search of corporate scandals, money laundering, corrupt government official database, criminal courts, law enforcement most wanted, fugitives, terrorist, insurgents lists, law enforcement derogatory news files, restricted parties (sanctions, warnings, debarred), and politically exposed persons (PEP).

Threshold for Screening Components

Consent Form – Potential candidates may be required to consent to background checks in Mexico, including requests about their criminal history, consumer credit, and motor vehicle records, as a condition of employment. If consent is not provided, an employer may legally refuse to hire a potentially qualified candidate. An employer must request the background check of an applicant prior to extending an offer of employment. The applicant must then decide if they will consent to undergo the background check process. Employers must be able to demonstrate proof of consent. In order to substantiate valid consent was obtained it must include specific language indicating that the candidate agrees to the background check.

Identity Validation

• Instituto Federal Electoral Card or Mexico National Passport (Scanned image copy)

Criminal Forms – although individual state requirements may vary the following is intended to summarize the basic requirements: 

• Special Letter of Authority (limited power of attorney) – Must include last residential complete address and dates of residence in Mexico.
• Proof of Identification – Mexican Instituto Federal Electoral Card or also known as the IFE Card (Scanned color copy) or National Passport (Scanned image copy)
• Complete set of rolled fingerprints certified by a recognized police authority

Police Clearance Authentication

Scanned image of “Mexican Letter of No Criminal Record” obtained within last 30 days

Data Retention Guidelines

Records pertaining to employee background checks are highly confidential and must be retained for a period of at least five years.

Copyright © 2011 Aletheia Consulting Group