Transcript Document
The United Nations Convention against Corruption
Pre-existing anti-corruption treaties, why a new one?
2003 United Nations Convention against Corruption 2003 African Union Convention 1999 Council of Europe Conventions 1997 Organization for Economic Co-operation and Development Convention 1997 European Union Convention 1996 Organization of American States Convention
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2000 2001 2002 2003
Negotiations process Adoption of United Nations Convention against Transnational Organized Crime - Creation of Ad Hoc Committee for the Negotiations of a new convention against corruption Terms of Reference – Intergovernmental Open-ended Expert Group Meeting 8 sessions of Ad Hoc Committee held in Vienna with over 120 participating States General Assembly adoption of the United Nations Convention against Corruption High-level Political Conference in Merida, Mexico
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Structure of the Convention
Prevention (Art. 5-14) Criminalization Asset Recovery International Cooperation
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Provisions' different levels of obligation
Mandatory provisions - obligations to legislate, e.g. “each State party shall adopt” Measures that States parties must consider applying, e.g. “shall consider adopting” or “shall endeavour to” Optional measures, e.g. “may adopt” 5
Anti-corruption policies and bodies
Art.5
Effective and coordinated anti-corruption policies to:
Art.6
Art.36 (law enforcement)
Anti-corruption bodies:
promote participation of civil society
reflect the rule of law and proper management of public affairs
review legal and administrative measures
to implement the policies
disseminate anti-corruption knowledge The bodies must:
be independent
adequately resourced
properly trained
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Preventive measures – public sector (Art. 7)
Civil servants’ recruitment, hiring, retention, promotion and retirement to be based on merit and aptitude
Special measures for selection, training and rotation for public positions vulnerable to corruption
Transparency Integrity Accountability
Training programmes
Transparency in the funding of candidatures and political parties
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Preventive measures – codes of conduct (Art. 8)
Codes of conduct
Public officials’ reporting of corruption
Disclosures of activities or gifts from which conflicts of interest may derive
Disciplinary measures
Transparency Integrity Accountability
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Preventive measures – public procurement (Art. 9)
Based on competition and objective criteria
Public distribution of invitations to tender, conditions for participation, award criteria
Systems of review and appeal
Declaration of interest, special training of public procurement personnel
Transparency Integrity Accountability
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Preventive measures – public reporting (Art. 10)
Citizens to have access to information and decision-making process of public administrations
Administrative procedures to be simplified
Transparency Integrity Accountability
Information on activities of public administrations to be published
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Preventive measures – the judiciary (Art. 11)
Independence of the judiciary
Independence of prosecution service
Transparency Integrity Accountability
Specific codes of conduct
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Preventive measures - private sector (Art. 12) Enhanced accounting and auditing standards Proportionate and dissuasive civil, administrative or criminal sanctions Comprehensive Preventive Measures in Promote cooperation between law enforcement and private entities Private Sector Prevent conflicts of interest Prohibition of off-the book account and other acts No tax deductibility of expenses constituting bribes
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Other preventive measures
Participation of Society (Art. 13) Ensure active participation of civil society
Provide public access to anti-corruption bodies
Encourage citizens to report on offences Money-laundering (Art. 14)
Comprehensive regulatory and supervisory regimes for banks and non bank financial institutions
Ensure domestic and international cooperation
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The United Nations Convention against Corruption
Prevention Criminalization Law Enforcement (Art. 15-42) Asset Recovery International Cooperation
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Mandatory and other criminal offences 5 Mandatory Offences Bribery 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 Private Sector (Art.21) Embezzlement in Private Sector (Art.22)
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Bribery of public officials (Art.15) Promise, Offering or Giving
Undue Advantage for the Official or Another Person/Entity in Order to Act or Refrain from Acting in the Exercise of Official Duties Undue Advantage for the Official or Another Person/Entity in Order to Act or Refrain from Acting in the Exercise of Official Duties
Solicitation or Acceptance by National Public Official
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Active bribery of foreign public officials (Art.16) Promise, Offering or Giving
Undue Advantage for the Official or Another Person/Entity in Order to Act or Refrain from Acting in the Exercise of Official Duties
Solicitation or Acceptance by Foreign Public Official or Officials of Int’l Organizations
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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
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Money laundering (Art.23) Conversion or Transfer of Proceeds of Crime Concealment or Disguise of Proceeds of Crime Acquisition, Possession or Use of Proceeds of Crime Participation, Association, Conspiracy, Attempt…
Subject to Basic Concept of Legal System
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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
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Other criminal offences (Art.18-22) Passive Bribery of Foreign Public Officials or Officials of Int’l Org (Art.16) Embezzlement in Private Sector (Art.22) Trading in Influence (Art.18) Abuse of Function (Art.19) Illicit Enrichment (Art.20) Bribery in Private Sector (Art.21)
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Law enforcement (Art.36) States parties shall: Ensure the existence of bodies or persons specialized combating corruption through law enforcement in
Independence (political and financial)
Resources – adequate
Training – appropriate
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The United Nations Convention against Corruption
Prevention Criminalization Law Enforcement Asset Recovery International Cooperation (Art.43-50)
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International cooperation
Mandatory Offences
Question of Dual Criminality
Optional Offences
Narrow Dual Criminality Requirements In MLAs
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Extradition (Art.44) Either “Extradite or Prosecute” Own Nationals Conditional Surrender of Nationals to be Returned to Serve Sentence
Ensure that All Convention Offences are Extraditable Offence between States Parties
Grounds of Refusal Human Rights No Refusal on Sole Fiscal Ground Consultation before Refusal Harmonization with Existing Treaties and Domestic Law
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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 Execute or Transmit Request to Receive,
•No Refusal of MLA on the Ground of
Bank Secrecy
•MLA can be Provided in the
Measures Absence of Dual Criminality for Non-Coercive
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Other international cooperation measures Law enforcement cooperation (art. 48) Parties shall cooperate with one another to enhance the effectiveness of law enforcement…to establish channels of communication and secure the rapid exchange of information concerning all aspects of the offences covered by the Convention Joint investigations (Art. 49) Parties shall consider agreements in matters related to investigation, prosecution and judicial proceedings and the establishment of joint investigation bodies Special investigative techniques (art.50) Parties must allow “controlled delivery” and other special investigative techniques, such as electronic or other forms of surveillance and under cover operations and allow for the admissibility in court of evidence derived
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The United Nations Convention against Corruption
Prevention Criminalization Law Enforcement Asset Recovery (Art.51-59) International Cooperation
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Chapter V, Asset Recovery (art. 51-59)
“The return of assets is a fundamental principle of this Convention… Parties shall afford one another the widest measure of cooperation and assistance in this regard” (art. 51)
Scope of application of Chapter V: corruption offences 5 Mandatory offences
Bribery of 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 private sector (art.21) Embezzlement in private sector (art.22)
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Prevention of transfer of proceeds of crime (Art. 52) States Parties must require their financial institutions to:
Verify the identity of customers
Determine the identity of beneficial owners of high-level accounts
Apply enhanced scrutiny to accounts maintained by prominent public officials
Report suspicious transactions to competent authorities
Prevent the establishment of banks with no physical presence – “shell banks”
The implementation of these provisions may require legislation
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The implementation of these provisions may require legislation or amendments to civil procedures and jurisdictional rules Direct recovery (Art.53) – civil prosecution States parties shall be allowed to Initiate civil action in another party’s courts to establish ownership of property acquired through corruption Courts shall be allowed to Order corruption offenders to pay compensation to another state party Courts shall be allowed to Recognize, in confiscation decisions, another party’s claim as legitimate owner of property
Advantages of civil prosecution: useful when criminal prosecution in not possible – death or absence of alleged offender allows to establish liability on the basis of civil standards – different evidentiary requirements 32
Recovery and international cooperation (Art.54-55)
Give effect to an order of States Parties shall permit their competent authorities to confiscation issued by a court of another Party
Freeze or seize property upon a freezing or seizing order issued by a court of a requesting Party States Parties shall consider measures to
Allow confiscation without criminal conviction – when offender cannot longer be prosecuted because of death, flight or absence The implementation of these provisions may require legislation
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Disposal of confiscated property, no longer at the discretion of the confiscating state Property confiscated (art. 31 or 55) must be disposed of, including by return to prior legitimate owners (art. 57)
Internationally art.55
Domestically art.31
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Confiscation and disposal of proceeds of crime is relatively recent in international law
UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988)
UN Convention against Transnational Organized Crime (2000)
parties must adjust legislative and institutional formworks to comply with it UNCAC breaks new grounds:
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Return of assets (art.57) Embezzled public funds or laundering of embezzled public funds
Return to requesting Party Return to requesting Party if it can reasonably establishes prior ownership
Proceeds of other offences of corruption Other cases
Confiscated property may be returned to the requesting Party, prior legitimate owner or used for compensating victims
Return of assets is unconditional, Parties to give special consideration to agreements for the final disposal of assets
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The work of UNODC to promote the Convention Effective Implementation Full Compliance Universal Ratification Assist the Conferences of the States Parties Promotion of Ratification Provision of Technical Assistance
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For further information: United Nations Office on Drugs and Crime Vienna International Centre PO Box 500, A-1400 Vienna, Austria Tel: +43-1-26060-4487 Fax: +43-1-26060-7 4506 http://www.unodc.org/unodc/en/crime_ convention_corruption.html
THANK YOU FOR YOUR ATTENTION
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