anti-corruption conference – corruption: impact & monitoring anti-korupcijska konferencija –...

Anti-Corruption Conference – Corruption: Impact & Monitoring

Anti-korupcijska konferencija – Korupcija: uticaj & monitoring

19. oktobar 2005, Podgorica

Uticaj korupcije na ekonomski razvoj i smanjenje siromaštva

Impact of corruption on economic development and poverty reduction

I panel session

United Nations Convention against Corruption

United Nations Office on Drugs and CrimeDivision for Treaty Affair(Updated: 13 October 2005)

Division for Treaty Affairs19 Oct 2005

Negotiations ProcessAdoption of United Nations Convention against Transnational Organized Crime -Creation of the Ad Hoc Committee for the Negotiations of a new Convention against corruption (A/RES/55/61)

7 sessions of the Ad Hoc Committee held in Vienna with over 120 States participants

Adoption of the United Nations Convention against Corruption (A/RES/58/4)

High-level Political Signing Conference in Merida, Mexico

2000

2002

2003

2001Terms of Reference – Intergovernmental Open-ended Expert Group Meeting


Corruption --- Multi-dimensional Challenge

Human Rights

Democracy

Rule of Law

MarketsQuality of Life

Human Security

Sustainable Development

CORRUPTION


Corruption – A Global Threat

Cost of corruption exceeds by far the damage caused by any other

single crime

• World Bank – More than 1 trillion US$ is paid in bribes a year and the harm exceeds the proceeds – US$ 1 bribes = US$ 1.7 damage

• Asian Development Bank – Cost of corruption = up to 17% of GDP


Growing Responses

8th CrimeCongress

GA Res.51/191UN Declaration

TOCC Negotiation

GA Res.58/4Adoption of CAC

MeridaConference

GA Res.55/61Establishment of

Ad Hoc Committee

GA Res.55/181Asset Recovery

Ad Hoc Committee (1st –7th Sessions)

1996 OAS Convention

1997 EU Convention

1997 OECD Convention

1999 CoE Conventions 2003 AU

Convention


Aims and Structure of Convention

PreventiveMeasures

InternationalCooperation

AssetRecovery

Technical AssistanceInformation Exchange

Implementation

CriminalizationLaw Enforcement

3. Integrity, Accountability and Proper Management of Public Affairs and Property

1. Prevent and Combat Corruption More Efficiently and Effectively

2. International Cooperation & Technical Assistance including Asset Recovery


Use of Terms (Art.2)

No Definition of Corruption

Broad and Comprehensive Definition of Public Officials

1. Any Person Holding a Legislative, Executive, Administrative or Judicial Office

2. Any Person Performing a Public Function or Providing a Public Service

3. Any Other Person So Defined in the Domestic Law of State Party


PREVENTIVE MEASURES

Art.5-14


Art.6Art.6

Ensure the Existence of Anti-Corruption Bodies

Anti-Corruption Policies and Bodies

Requirements

Implement Effective and Coordinated Anti-Corruption

Policies

Art.5Art.5


Preventive Measures(Art. 5-14)

TransparencyIntegrity

Accountability

Codes of Conduct (Art.8)

Public and Private Sectors Civil Society (Art.9)

Integrity of Judiciary and Prosecution Service (Art.11)

Prevention of Money-Laundering (Art. 14)


Comprehensive Preventive Measures in

Private Sector

Preventive Measures in Private Sector

Enhanced Accounting and Auditing Standards

Prohibition of Off-the-Book Account and other

Acts

No Tax Deductibility of Expenses Constituting

Bribes

Effective, Proportionate and Dissuasive Civil, Administrative

or Criminal Penalties


Other Preventive Measures

Participation of Society • Ensure Active Participation of Civil

Society (Art.13 (1))• Provide Public Access to Anti-

Corruption Bodies (Art.13 (2)) • Encourage Citizens to Report on

Offences (Art.39)

Prevention of Money-Laundering • Establish Comprehensive Regulatory

and Supervisory Regime • Ensure Internal and International

Cooperation (Art.14)


CRIMINALIZATION

Art.15-25


Mandatory and Other Criminal Offences

5 Mandatory OffencesBribery of National Public Officials (Art.15)Active Bribery of Foreign Public Officials (Art.16)Embezzlement, Misappropriation and Other Diversion of Property (Art.17)Money Laundering (Art.23)Obstruction of Justice (Art.25)6 Other Criminal Offences

Passive Bribery of Foreign Public Official (Art.16)Trading in Influence (Art.18)Abuse of Function (Art.19)Illicit Enrichment (Art.20)Bribery in Public Sector (Art.21)Embezzlement in Public Sector (Art.22)


Bribery of Public Officials (Art.15)

Promise, Offering or Giving

Solicitation or Acceptance by National Public

Official

Undue Advantage for the Official or Another Person/Entity in Order to Act or Refrain from Acting in the Exercise

of Official Duties


of Official Duties


Active Bribery of Foreign Public Officials (Art.16)

Promise, Offering or Giving

Solicitation or Acceptance by Foreign Public

Official or Officials of Int’l Organizations


of Official Duties


Embezzlement (Art.17)

Embezzlement, Misappropriation or other Diversion of Property by a Public Official

For his or her Benefits

Of any Property, Public or Private Funds or Security or Any Thing of Value

Entrusted to Public Officials by Virtue of his/her Position


Money Laundering (Art.23)Conversion or Transfer of Proceeds of Crime

Concealment or Disguise of Proceeds of Crime

Mandatory Offences

Subject to Basic Concept of Legal

System

Acquisition, Possession or Use of Proceeds of Crime

Participation, Association, Conspiracy, Attempt…


Obstruction of Justice (Art.25)

Use of Physical Force, Threats or Intimidation

or

Promising, Offering or Giving Undue Advantage

To Interfere with Giving Evidence or Testimony

Use of Physical Force, Threats or Intimidation

To Interfere with Exercise of Duties of Judicial or

Law Enforcement Officials


Other Criminal Offences (Art.18-22)

Passive Bribery of Foreign Public Officials or

Officials of Int’l Org (Art.16)

Trading in Influence(Art.18)

Abuse of Function (Art.19)

Bribery in Private Sector

(Art.21)

Illicit Enrichment (Art.20)

Embezzlement inPrivate Sector

(Art.22)


Protection of Witness and Reporting Persons (Art.32-35)

Protection of Reporting Persons

Protection against Any Unjustified Treatment Optional

Protection of Witness, Experts and Victims

Effective Protection from Potential Retaliation or

Intimidation

In Accordance with its Domestic Legal

System and within its Means


Jurisdiction (Art.42)

No Safe Haven for Offenders

Offence on Territory, Vessel or Aircraft

Offender not ExtraditedBecause of Nationality

Offence againstState

Offenders or VictimsAre Nationals

Participation of Laundering Outside Territory

Aimed at Laundering in Territory


INTERNATIONAL COOPERATION

Art.43 - 50


International Cooperation

Mandatory Offences

Optional Offences

Narrow Dual Criminality Requirements

In MLAs

Question of Dual Criminality


Extradition (Art.44)

Ensure that All Convention Offences are

Extraditable Offence between States Parties

Either “Extradite or Prosecute”

Own Nationals

No Refusal on Sole Fiscal Ground

Harmonization with ExistingTreaties and Domestic Law


Mutual Legal Assistance (Art.46)

Widest Measures of Mutual Legal Assistance in

Investigations, Prosecution and Legal Proceedings in relation to

Convention Offences

• Designate Central Authority to Receive, Execute and Transmit Request

•No Refusal of MLA on the Ground of Bank Secrecy

•MLA can be Provided in the Absence of Dual Criminality for Non-Coercive Measures


Other Cooperation Measures

Joint Investigation

(Art.49)

Special Investigative Techniques (Art.50)

Cooperation in Inquiries

Channels of Communication and Information Exchange

(Art.48)


ASSET RECOVERY

Art.51-59


Asset Recovery – Major Breakthrough

Measures to Prevent and Detect Transfer of Proceeds (Art.52)

Return of Assets as Fundamental Principle

(Art.51)

Measures for DirectRecovery of

Property (Art.53)

Measures for Recovery of Property through

International Cooperation (Art.54 - 55)

Measures for Return andDisposal of Assets (Art.57)


Return of Assets (Art.57)

Other Cases

Proceeds of Other Offences Covered by UNCAC

Embezzled Public Funds from the State

Return Depending on How Closely the Assets were Linked to the Requesting State Party

Return to the State

Return to the State if it Establishes Ownership or Damage Recognized by the Requested State Party as a Basis for Return

May be Returned to the Requesting State Party, a Prior Legitimate Owner or

Used for Compensating Victims


Other Mechanisms

Prevention and Detection (Art.52)•Prevent Illicit Transfers

•Generate Records for Eventual Trace and Confiscation

Direct Recovery (Art.53)•Provide Direct Recovery in Civil or Other Proceedings

Comprehensive Framework for International Cooperation (Art.54-55)

•Incorporate More General MLAs Requirements, Mutatis Mutandis


Obligation to Enable Confiscation of

Proceeds of Crime

Domestically & Upon Request from Another Party

Confiscation of Proceeds of Crime

Domestically Art.31 Internationally Art.55


Direct Recovery of Property (Art.53)

Courts shall be allowed to


Recognize, in confiscation decisions, another party’s claim as legitimate owner of property



Order corruption offenders to pay compensation to another state party

States parties shall be allowed to

States parties shall be allowed to

Initiate civil action in another party’s courts to establish ownership of property acquired through corruption


TECHNICAL ASSISTANCE AND INFORMATION EXCHANGE

Art.60-62


Technical Assistance & Information Exchange (Art.60-62)

Criminal JusticeAnd

Institution-Building

Technical Assistance and Exchange of Information

Training Programmes

Studies, Research and Evaluation

Assistance to Developing Countries and

Countries in Transition

Voluntary ContributionsUN Funding MechanismPercentage of Proceeds

of Crime


IMPLEMENTATION

Art.63-64


Mechanisms for Implementation (Art.63-64)

COSP to Address Criminalization of Passive Bribery of Officials of

International Organizations

25-27 Jan. 20068th Ad Hoc Committee

To Prepare Draft Rules of Procedure

Within 1 Year from Entry into ForceCOSP 1

•Promote, Facilitate and Review Implementation•Make recommendation•Facilitate Information Exchange

Entry into Force14 Dec 2005


Status of ratification, by region

12%12% 52%

21% 3%

AfricaAsiaEastern EuropeLatin America and CaribbeanWestern Europe and Other


For further information:

Division for Treaty Affairs

United Nations Office on Drugs and Crime

P.O.Box 500 Vienna

A-1400 Austria

Tel: +43-1-26060-4534

Fax: +43-1-26060-5841

http://www.unodc.org/unodc/en/crime_convention_corruption.html

[email protected]


Thank you for your kind attention

anti-corruption conference – corruption: impact & monitoring anti-korupcijska konferencija –...

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