UNITED NATIONS CONVENTION AGAINST CORRUPTION

1

• UNITED NATIONSCONVENTION AGAINST CORRUPTION

2
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)

3
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

4
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

5
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)

6
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

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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

8
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

9
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

10
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

11
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

12
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

13
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

14
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)

15
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)

16
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)

17
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)

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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 duties
• Bribery 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

19
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

20
Mandatory offencesLaundering 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)

21
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

22
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)

23
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
• .

24
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

25
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

26
Jurisdiction (Art. 42)

• Objective Offenders should have no place to hide
  from investigation and prosecution
• Mandatory jurisdiction
• offences on a States 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/att
  empt/facilitation of a laundering offence to be
  committed on the States territory
• offence against the State

27
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)
28
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

29
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

30
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

31
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)

32
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
  

33
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 Partys claim
  as legitimate owner of property acquired through
  convention offences

34
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

35
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

36
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

37
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