united nations convention against corruption. negotiation and adoption of the convention the united...
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UNITED NATIONSCONVENTION AGAINST
CORRUPTION
Negotiation and adoption of the Convention
The United Nations Convention against Transnational Organized Crime,2000, includes some provisions on corruption. During its negotiation, the need for another convention wholly devoted to the issue of corruption becomes blatant
General Assembly creates an Ad Hoc Committee for the Negotiation of a Convention against Corruption (Res/55/61)
It defines terms of reference for that committee, requesting it to complete its work by the end of 2003 (Res/56/260)
Over 120 States participating in the open-ended Ad Hoc Committee successfully complete the Convention in less than 2 years and only 7 sessions
General Assembly adopts the new Convention unanimously on 31 October 2003 (Res/58/4)
Status of the Convention
The Convention is opened for signature at a high-level political signing conference held from 9 to 11 December 2003 in Mérida, Mexico, and thereafter at UN Headquarters, New York, until 9 December 2005
As of today, 105 States have signed the Convention and two States have ratified it *
30 ratifications are necessary to bring the Convention into force
* For up to date status see:
http://www.unodc.org/unodc/en/crime_convention_corruption.html
Domestically
Cabinet guided negotiating mandate presentation to National Anti-corruption Forum on
5 December 2003 Stakeholders workshop on 18 March 2004
report-back comparative analysis with domestic regulatory
framework implementation programme for different sectors
Presentation at 2nd National Anti-corruption Summit in November 2004
Structure of Convention
Besides chapters on General provisions (I),Implementation mechanisms (VII) and Final provisions (VIII), the Convention contains 5 substantive chapters:
Preventive measures (Chapter II)
Criminalization and law enforcement (Chapter III)
International cooperation (Chapter IV)
Asset recovery (Chapter V)
Technical assistance and information exchange (Chapter VI)
Use of terms (Art.2)
Convention does not define corruption
Corruption is a fluid and evolving concept
Convention covers various existing forms of corruption
( bribery, embezzlement, trading in influence, abuse of functions…)
It enables States to deal with other forms that may emerge in the future
Use of terms (Art.2)
Convention broadly and comprehensively defines “Public official”: Any person holding a legislative, executive,
administrative or judicial office;
Any person performing a public function, including for a public agency or public enterprise, or providing a public service
Context of domestic law to be taken into account to determine who belongs in above categories
Preventive measures
Convention contains an extensive set of preventive measures
Anti-corruption policies and practices Anti-corruption bodies Measures for the public sector Codes of conduct for public officials Public procurement and management of public finances Public reporting Measures for the judiciary and prosecution services Measures for the private sector Participation of civil society Measures to prevent money laundering
Anti-corruption policies and anti-corruption bodies (Art. 5-6)
Parties are required to develop coordinated preventive anti-corruption policies and
best practices collaborate with each other in the prevention of corruption establish anti-corruption bodies to implement policies and
disseminate knowledge on corruption prevention ensure such bodies are independent and free from undue
influence
Public sector, conduct of public officials (Art. 7-8)
Transparency and integrity in public sector
Objective and transparent systems for recruitment, promotion, retirement of civil servants
Legislative and administrative measures to establish
. criteria for candidature and election to public office
. transparency in funding of candidates for elected public offices and funding of political parties
Standards of conduct for public officials Codes of conduct established and sanctioned by disciplinary or
other measures
Reporting of acts of corruption by public officials
Declarations on outside activities, assets and gifts
Public procurement and management of public finances (Art. 9)
Public procurement:Set of measures to ensure transparency, competition and objective criteria in decision-making
Management of public finances:Procedures and safeguards to ensure accountability and oversight on management of public finances
Judiciary and prosecution services (Art.11)
Measures to strengthen integrity and
prevent opportunities for corruption within judiciary and prosecution services
Takes into account: Independence of judiciary Crucial role of judiciary in preventing corruption
Private sector (Art.12)
Measures to prevent corruption in private sector : Cooperation between law enforcement and private entities (also Art.
39)
Transparency regarding identity of those establishing/managing corporate entities
Good practices in contractual relations of businesses with the State
Safeguards in procedures regarding public subsidies and licences for commercial activities
Restrictions on employment of former public officials in private sector to prevent conflicts of interest
Appropriate accounting and auditing standards and controls on maintenance of financial books and records
Provision of proportionate and dissuasive civil, administrative or criminal penalties for failure to comply with such measures
Public reporting and participation of society (Art.10 and 13)
Facilitate access of general public to information on organization, functioning and decision-making of public administration
Ensure that anti-corruption bodies are known and accessible to the public
Promote the active participation of civil society, NGOs and community-based organizations in the fight against corruption
Encourage citizens to report to national investigating and prosecuting authorities on convention offences (Art. 39)
Measures to prevent money laundering (Art.14)
Comprehensive regulatory and supervisory regime for banks and other financial institutions based on guidelines from regional, interregional or multilateral initiatives to:
Identify customers, keep records, report suspicious transactions
Monitor cross-border cash and negotiable instruments’ movements
Obtain information on originator in electronic transfer of funds
Cooperation within each State and with other States financial intelligence units to collect, analyze, disseminate
information on potential money-laundering and transfer of proceeds (see also art. 58 on Financial intelligence units)
Criminal offences (Art.15-25)
Mandatory offences“Parties shall … establish as criminal
offences, when committed intentionally” Bribery of national public officials (Art.15) Bribery of foreign public officials and officials of
public international organizations (Art.16) Embezzlement, misappropriation or other diversion
of property by a public official (Art.17) Laundering of proceeds of crime (Art.23) Obstruction of justice (Art.25)
Other Criminal offences (Art.15-25)
“Parties shall consider … establish(ing) as criminal offences, when committed intentionally”
Trading in influence (Art.18) Abuse of functions (Art.19) Illicit enrichment (Art.20) Bribery in the private sector (Art.21) Embezzlement of property in the private sector (Art.22)
Mandatory offences: bribery of public officials (Art. 15-16)
Bribery of national public officials (Art.15) Promise, offer, give, solicit or accept Any undue advantage to/by a public official In order for that official to act or refrain from acting In the exercise of official dutiesBribery of foreign public officials and officials of
international organizations (Art.16) Same definition, except that: Solicitation and acceptance of undue advantage by
foreign/international officials is an optional offence
Mandatory offences: embezzlement (Art. 17)
Embezzlement, misappropriation or other diversion of property by a public official
for his/her benefit of any property, public or private funds or securities or
any thing of value entrusted to public official by virtue of his/her position
Mandatory offences:Laundering of proceeds of crime (Art.23)
Laundering offence applies to proceeds of widest range of corruption offences
Laundering is defined as Conversion or transfer to conceal criminal origins Concealment of nature, source, location, disposition,
movement or ownership Laundering also covers:
Knowing acquisition of proceeds of crime Participation, association, conspiracy, attempts, aiding,
abetting, facilitating etc in relation to laundering offence As an additional possible offence: the knowing concealment
or continued retention of property resulting from an offence (Art.24)
Mandatory offences: Obstruction of justice (Art.25)
Using force, threats, intimidation or promising, offering or giving undue advantage to interfere with giving of evidence or testimony to interfere with exercise of duties of judicial or law
enforcement official in connection with proceedings on corruption offence
Other offences (Art.18-22)
Trading in influence (Art. 18) Promise, offer, give, solicit, accept An undue advantage to/by a public official In order to abuse real or supposed influence With a view to obtain from administration or public authority an undue
advantage Abuse of functions (Art. 19)
Performance or failure to perform an act by a public official To obtain undue advantage for oneself or other
Illicit enrichment (Art. 20) Significant increase in assets of a public official With no reasonable explanation
Bribery, embezzlement in the private sector (Art. 21-22)
Prosecution, adjudication and sanctions (Art. 30)
Besides the array of provisions addressing prosecution and sanction of serious crime, the Convention contains some specific features regarding prosecution and sanctions of public officials:
Balance between immunities or jurisdictional privileges of public officials and effective investigation, prosecution and adjudication of corruption offences
Procedures to remove, suspend, reassign accused public official, with due account of the presumption of innocence
Procedures for the disqualification of persons convicted of corruption offences from holding public office or office in public enterprise
.
Protection of victims, witnesses and reporting persons (Art. 32-35)
Effective protection from retaliation or intimidation for witnesses:
physical protection and limitations on disclosure of identity domestic or foreign relocation special arrangements for safely giving evidence
Right of victims to initiate legal proceedings for claiming compensation and restitution
Law enforcement authorities (Art. 36-39)
Parties are requested to:
Ensure existence of body/bodies or persons specialised in combating corruption through law enforcement
Independence and freedom from undue influence Training and resources
Ensure that investigating and prosecuting authorities receive co-operation and reporting of information from:
Public authorities and public officials Private sector, in particular financial institutions Citizens at large
Jurisdiction (Art. 42)
Objective: Offenders should have no place to hide from
investigation and prosecution
Mandatory jurisdiction offences on a State’s territory, vessel or aircraft
where offender not extradited because of nationality
Optional jurisdiction offender or victim are nationals of the State
outside of territory participation/association/attempt/facilitation of a laundering offence to be committed on the State’s territory
offence against the State
International cooperation in criminal matters (Art. 44-47)
Extradition (Art. 44)
Transfer of sentenced persons (Art. 45)
Mutual Legal Assistance (Art. 46)
Transfer of criminal proceedings (Art. 47)
Extradition (Art. 44)
Provisions to ensure that all convention offences are extraditable offences between Parties
Parties must either “extradite or prosecute” own nationals
Conditional surrender of nationals to be returned to serve sentence (also Art. 45 on agreements for transfer of sentenced persons)
Grounds for refusal: Human rights refusal - No refusal on sole fiscal ground – Consultation before refusal
Harmonization of convention provisions with existing treaties and domestic law
Mutual Legal Assistance (Art. 46)
“States Parties shall afford one another the widest measure of mutual legal assistance in investigations, prosecutions and legal proceedings” in relation to convention offences, including in case of liability of legal persons (Art.26)
Detailed convention provisions on transfer of persons in custody to provide testimony contents of requests Modalities of assistance, conditions for granting MLA, grounds
for refusal constitute a “mini MLA treaty” applicable by default to requests between parties not bound by a MLA treaty
States Parties are required to designate a central authority to receive, execute or transmit requests
No right to refuse MLA on the ground of bank secrecy MLA can be provided in the absence of dual criminality for non-
coercive measures
Law enforcement cooperation and joint investigative measures (Art. 48-50)
Parties are called upon to:
cooperate in inquiries concerning identity and activities of suspects; movement of proceeds of crime or instrumentalities
enhance channels of communication and exchange information on means and methods used to commit convention offences (Art.48)
conclude agreements governing joint investigations (Art.49) develop domestic and cooperative use of special investigative
techniques (Art.50) controlled delivery of funds and goods electronic or other forms of surveillance undercover operations
Asset recovery (Art. 51-59)
The return of assets derived from corruption and transferred internationally is a fundamental principle of the Convention and Parties shall afford one another the widest measure of cooperation and assistance in this regard (Art. 51)
Convention lays down Measures for the prevention and detection of transfers
of proceeds of crime (Art. 51) Measures for the direct recovery of property (Art. 53) Measures for the recovery of property through
international cooperation in confiscation (Art. 54-55) Measures for the return and disposal of assets (Art.57)
Prevention and detection of transfers of proceeds of crime (Art. 52)
Besides general measures to prevent money-laundering (Art. 14), Parties are requested to ensure financial institutions target corruption beneficiaries by:
Verifying identity of beneficial owners of funds deposited in high-value accounts
Exercising enhanced scrutiny on accounts of individuals entrusted with prominent public functions
Preventing establishment of and refrain from banking relationships with banks with no physical presence and no affiliation with a regulated financial group
Parties are called upon to establish financial disclosure systems for appropriate public officials, including disclosure of their relationship with a foreign financial account, and to provide for sanctions for non-compliance
Direct recovery of property (Art. 53)
Each Party is requested
To permit another party to initiate civil action in its courts in order to establish ownership of property acquired through corruption
To permit its courts to order corruption offenders to pay compensation to another Party harmed by offences
To permit its courts when deciding on confiscation to recognise another Party’s claim as legitimate owner of property acquired through convention offences
International co-operation in confiscation (Art. 54-55)
Parties are requested to take measures for freezing, seizure and confiscation of crime proceeds, property and instrumentalities at the domestic level (Art. 31)
At the international level, each Party is requested to enable its competent authorities to provide mutual legal assistance in confiscation (including under some conditions confiscation without a criminal conviction), and identify, trace, freeze and seize property upon request from another Party (Art. 54)
Convention defines conditions and modalities of requesting and granting such assistance (Art. 55)
No right to decline to act on the ground of bank secrecy
Return and disposal of assets (Art. 57)
Property confiscated following international cooperation confiscation should be returned: in case of embezzlement of public funds and
laundering of such embezzled funds, to the requesting Party
in case of proceeds of other convention offences, to the requesting Party provided that prior ownership or damage to the requesting Party have been established
In other cases, priority consideration given to return of confiscated property to the requesting Party, or to return to prior legitimate owners or to compensating the victims
Technical assistance and information exchange (Art. 60-62)
States Parties called upon to:
Set up training programmes for personnel responsible to prevent and combat corruption
Cooperate in collecting, exchanging, analysing information on corruption
Enhance technical and material assistance to developing countries and economies in transition for the implementation of the Convention
Make regular voluntary contributions, including a portion of assets confiscated under the Convention, to a UN funding mechanism established for that purpose
Mechanisms for implementation (Art. 63-64)
Convention establishes a Conference of the States Parties to the Convention
Mandates of the Conference: promote, facilitate and review implementation
make recommendations to improve convention
facilitate exchange of information among Parties on corruption patterns and best anti-corruption practices
Conference will meet within one year of convention entry
into force, and thereafter regularly in accordance with rules
of procedure adopted at first meeting