UNITED NATIONS CONVENTION AGAINST CORRUPTION Ambassador Dr Ugljesa Ugi Zvekic

International Conventions against Corruption Basic Facts Global Conventions: UNCAC (2003/2005) UNTOC (2000/2003) OECD Anti-Bribery Convention (1997/1999) Africa AU Convention on Preventing and Combating Corruption (2003/2006) SADC Protocol Against Corruption (2001/2005) ECOWAS Protocol on the Fight Against Corruption (2001/?)

International Conventions: Basic Facts (2) The Americas: OAS Inter-American Convention Against Corruption (1996/1997) Arab States: Arab Convention to Fight Corruption (2010/?) Europe COE Criminal Convention on Corruption (1999/2002) and Civil Law Convention on Corruption (1999/2003) EU Convention Against Corruption Involving Officials (197/2005) and Convention on the Protection of the EC Financial Interests (1995/2002)

UNCAC Status of Adherence Parties - 183

PREVENTION OF CORRUPTION

Preventive anti-corruption policies and practices (Article 5) A general provision requiring States to take an effective and coordinated approach to the prevention of corruption. Anti-Corruption Policies must promote the participation of society, reflect the rule of law and promote the proper management of public affairs.

Preventive anti-corruption body or bodies (Article 6) States must ensure the existence of a body or bodies that prevent corruption with sufficient independence, resources and staff to carry out their functions. Measures they may take include implementing anti-corruption policies and increasing and disseminating knowledge about prevention of corruption. Article 11 requires States to strengthen integrity and to prevent opportunities for corruption among members of the judiciary, including by introducing rules with respect to the conduct of members of the judiciary. Similar measures are encouraged in relation to prosecution services. UNODC has strongly supported the Judicial Integrity Group, formed in early 2000 and composed of current of former heads of the judiciary or senior judges in their respective countries or at the regional or international level. In particular, UNODC supported the development of the Bangalore Principles on Judicial Conduct which a establish a set of internationally-recognized standards for ethical conduct of judges. The principles are designed to provide guidance to judges and to offer the judiciary a framework for regulating judicial conduct. Six core values are recognized: Independence, impartiality, integrity, propriety, equality and competence and diligence. UNODC has also engaged in supporting national authorities in their efforts to increase the efficiency and integrity of judicial and prosecutorial bodies. In particular, long-standing projects have been run in Nigeria and Indonesia. [SEE MORE DETAILED NOTES BELOW IF REQUIRED]. We are also presently developing an Implementation Guide for Article 11 UNCAC aimed at assisting States in assessing whether their judicial integrity systems meet the requirements of the Convention. We aim to hold two regional conferences as part of the development of the Guide this Spring with the first to be held in Amman, Jordan. WE WOULD WELCOME A SENIOR REPRESENTATIVE FROM THE LIBYAN JUDICIARY. The Open-ended Working Group on Prevention will be addressing the issue of Judicial Integrity at its fourth meeting from August 26-28 2013. Note Verbale sent out requesting input from States Parties last Friday. NIGERIA JUDICIAL INTEGRITY PROJECTS In Nigeria, UNODC began its work with a baseline survey of 5,766 stakeholders including judicial officers, court staff, prosecutors, police, lawyers members of the business community and prisoners as part of the Strengthening Judicial Integrity and Capacity Project. On the basis of the results of the assessment UNODC assisted national and regional authorities in developing action plans aimed at enhancing judicial integrity and capacity. These action plans covered issues such as; 1. Access to justice, 2. Timeliness and quality of justice delivery, 3. Accountability, integrity and transparency of the justice system, 4. Coordination across justice sector institutions. As a third stage UNODC provided assistance to national and regional bodies in implementing the agreed action plans. Specific forms of assistance included: Design and review of codes of conducts Creation of complaints mechanisms and committees Design of performance monitoring and evaluation techniques Ethics training for judges and court personnel Corruption case-work training In 2007 an additional assessment was carried out with the participation of 10,000 stakeholders across ten States. Results demonstrated that both members of the court system and court users perceived there to have been a recent decrease in corruption in the justice sector. (47% of court users felt that the level of corruption within the courts was better or much better than 2 years before). UNODC has recently launched a new major anti-corruption initiative with the Nigerian government and supported by funding of the European Union aimed at building on the progress made over the last ten years. LINK

Recruitment, Management and Training of Public Officials (UNCAC Article 7) Adequate procedures for selection and training of officials working in “high-risk” areas. Adequate remuneration and equitable pay scales. Education and training programmes, including specialized anti-corruption training. Consider taking measures to enhance transparency in funding of political parties and candidates. IFRS are the most commonly used standards world-wide. Older name was international accounting standards. International Accounting Standards Board (IASB) (The GAAP – Generally Accepted Accounting Principles used for instance in the US are gradually being switched to IFRS) Differences also to EAD? IFAC (International Federation of Accountants) Listed companies or companies (insurance institutions, financial institutions etc. whose securities may be exchanged in organised markets) Correction of error example from Russia. Estimated 95 % of companies world-wide are SMEs

Conflicts of Interest, Codes of Conduct and Asset Declarations (UNCAC Articles 7 and 8) National Implementation Application of prohibitions and restrictions to public officials. Specialised codes of conduct for “high risk” areas. Proactive measures to resolve conflict of interests. Centralised bodies for the enforcement of conflict of interests and asset declaration standards.

Public Procurement and Management of Public Finances (UNCAC Article 9) UNCAC Requirements Public distribution of information so potential tenderers can prepare and submit applications. Use objective and predetermined rules and criteria for public procurement systems. Effective system of domestic review, appeal and remedies where rules not followed. Specialised training and declaration requirements for staff responsible for public procurement. IFRS are the most commonly used standards world-wide. Older name was international accounting standards. International Accounting Standards Board (IASB) (The GAAP – Generally Accepted Accounting Principles used for instance in the US are gradually being switched to IFRS) Differences also to EAD? IFAC (International Federation of Accountants) Listed companies or companies (insurance institutions, financial institutions etc. whose securities may be exchanged in organised markets) Correction of error example from Russia. Estimated 95 % of companies world-wide are SMEs

CRIMINALIZATION OF CORRUPTION

Chapter III: Criminalization and law enforcement Mandatory Offences Bribery of National Public Officials (Art. 15) Active Bribery of Foreign Public Officials (Art.16, para.1) Embezzlement, Misappropriation or Other Diversion of Property (Art. 17) Laundering of proceeds of crime (Art. 23) Obstruction of Justice (Art. 25) Participation in such offences (Art. 27, para. 1) Optional Offences Passive Bribery of Foreign Public Official (Art.16) Trading in Influence (Art. 18) Abuse of Functions (Art. 19) Illicit Enrichment (Art. 20) Bribery in Private Sector (Art. 21) Embezzlement of Property in Private Sector (Art. 22) Concealment (Art. 24) Attempt / preparation of UNCAC offences (Art.27, paras. 2-3)

Bribery Article 15: Bribery of National Officials Article 16: Bribery of International Officials Article 21: Bribery in the Private Sector

Bribery of Public Officials (Art.15) Undue Advantage for the Official or Another Person/Entity in Order to Act or Refrain from Acting in the Exercise of Official Duties Passive Bribery 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 Active Bribery Solicitation or Acceptance by National Public Official

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 Active Bribery Undue Advantage for the Official or Another Person/Entity to Obtain Business or Other Undue Advantage in Conduct of Int’l Business Active Bribery Foreign Public Official or Officials of Int’l Organizations

Bribery in the Private Sector (Art. 21) Promise, Offering or Giving Passive Bribery Undue Advantage to any Person who Directs/ Works for a Private Sector Entity in Order that s/he Act or Refrain from Acting Active Bribery Undue Advantage to any Person who Directs/ Works for a Private Sector Entity in Order that s/he Act or Refrain from Acting In the Course of Economic, Financial or Commercial Activities Solicitation or Acceptance by any person who directs/ works (in any capacity) for a private sector entity

Embezzlement by a Public Official (Art.17) Embezzlement, Misappropriation or other Diversion of Property by a Public Official For his/her Benefits of any Property, Public or Private Funds or Securities or Any Thing of Value Entrusted to Public Official by Virtue of his/her Position

Trading in Influence (Art. 18) Promise, Offering or Giving Passive influence Undue Advantage in Order that the Public Official/Person Abuse real/ supposed Influence to Obtain from an Administration or Public Authority an Undue Advantage for the Original Instigator/ Any Other Person Active influence Undue Advantage in Order that the Public Official/Person Abuse real/ supposed Influence to Obtain from an Administration or Public Authority an Undue Advantage Solicitation or Acceptance by any a Public Official or any Other Person

Abuse of Functions (Art. 19) Performing or Failing to Perform an Act by a Public Official in Discharge of his/her Functions In violation of laws Obtain undue advantage for himself/herself/ another person/ entity

The Recovery of Assets through International Cooperation 20

International Cooperation Joint Investigations Asset Recovery Transfer of Sentenced Persons Mutual Legal Assistance Confiscation of proceeds of crime Extradition 21

A recent and innovative principle in international law Chapter V of the UNCAC: The return of assets pursuant to this chapter is a fundamental principle of this Convention, and States Parties shall afford one another the widest measure of cooperation and assistance in this regard. Politically very charged, difficult negotiations Establishes a principle, but leaves a lot open for implementation

Asset Recovery under Chapter V UNCAC Measures to Prevent and Detect Transfer of Proceeds (Art 52) Measures for Direct Recovery of Property (Art 53) Return of Assets as Fundamental Principle (Art 51) Measures for Recovery of Property through International Cooperation (Art 54 - 55) Measures for Return and Disposal of Assets (Art 57)

Direct Recovery of Property (art 53) 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

Return of Assets (art 57) Return depending on how closely the assets were linked to the Requesting State Party Return to the State Embezzled Public Funds from the State Return to the State if it establishes ownership or damage recognized by the Requested State Party as a basis for return Proceeds of other offences covered by UNCAC May be returned to the Requesting State Party, a prior legitimate owner or used for compensating victims Other Cases

Mutual Legal Assistance Mechanisms by which States receive and provide assistance to gather evidence for investigations and criminal prosecutions → Vital tool within the criminal justice system: through request, one State authorizes another State to take measures, often coercive Assistance Requesting State Requested State Request

Mutual Legal Assistance under UNCAC Parties shall afford one another the widest measure of mutual legal assistance. For all investigations, prosecutions and judicial proceedings relating to Convention offences. Specific requirements under Article 55 UNCAC as regards MLA for tracing, freezing, seizure and confiscation of proceeds / instrumentalities of corruption offences. 27

Types of Mutual Legal Assistance Service of judicial documents Execution of searches, seizures, freezing Temporary transfer of persons in custody Provide information & evidentiary items Provide documents and records Identify, trace and freeze proceeds Taking evidence or statements from persons Facilitating voluntary appearances Asset recovery + ANY OTHER ASSISTANCE UNLESS PROHIBITED 28

EXTRADITION Surrender Requesting State Requested State Request The surrender by one State of a person present in its territory to another State that seeks this person either: for the purpose of prosecution or for the purpose of enforcing a sentence → Ultimately, it’s an act of the executive, not of the judicial authority Surrender Requesting State Requested State Request

EXTRADITION: Legal Basis Crime/Terrorism conventions UNCAC UNTOC 1988 Drug Convention Terrorism conventions Extradition/MLA treaties: Bilateral Multilateral (regional) Complementary source: domestic law of Requested State Basis of reciprocity Allowed under domestic legislation 30

Extraditable Offences UNCAC: All offences under UNCAC are extraditable Dual criminality: While dual criminality required, flexible approach Conduct-based test: Facts must constitute an offence in both States, no matter how those offences are qualified (art 43(1)) Importance of ratifying international instruments: offences harmonized among countries

Extraditable Offences - UNTOC TiP Protocol Offences Trafficking in persons UNTOC Offences Participation in an Organized Criminal Group Laundering of Proceeds of Crime Corruption Obstruction of Justice Other “serious crimes” punishable by a maximum deprivation of liberty of at least four years If the offence involves an organized criminal group and The person is located in the territory of the requested State party Migrant Protocol Offences Smuggling of migrants Fraudulent identity docs Enabling illegal stay Firearms Protocol Offences Illicit trafficking Illicit manufacture Falsifying markings

Extraditable Offences Offences deemed extraditable in existing treaties and to be included in future treaties Convention basis for extradition at discretion of Requested State if treaty required If not applying Convention as basis, seek to conclude treaties where appropriate If no treaty required, recognize offences as extraditable as between states parties

Domestic law/treaty applies but Extradition: Procedures Urges states to expedite and simplify procedures and evidentiary requirements Offences under UNCAC, not political offence Domestic law/treaty applies but Guarantee of fair process/protections Provisional arrest recognized

Extradition Surrender Requesting State Requested State Request The surrender by one State of a person present in its territory to another State that seeks this person either: for the purpose of prosecution or for the purpose of enforcing a sentence → Ultimately, it’s an act of the executive, not of the judicial authority Surrender Requesting State Requested State Request

Extraditable Offences UNCAC: All offences under UNCAC are extraditable Dual criminality: While dual criminality required, flexible approach Conduct-based test: Facts must constitute an offence in both States, no matter how those offences are qualified (art 43(1)) Importance of ratifying international instruments: offences harmonized among countries

Extraditable Offences - UNTOC TiP Protocol Offences Trafficking in persons UNTOC Offences Participation in an Organized Criminal Group Laundering of Proceeds of Crime Corruption Obstruction of Justice Other “serious crimes” punishable by a maximum deprivation of liberty of at least four years If the offence involves an organized criminal group and The person is located in the territory of the requested State party Migrant Protocol Offences Smuggling of migrants Fraudulent identity docs Enabling illegal stay Firearms Protocol Offences Illicit trafficking Illicit manufacture Falsifying markings

Extraditable Offences Offences deemed extraditable in existing treaties and to be included in future treaties Convention basis for extradition at discretion of Requested State if treaty required If not applying Convention as basis, seek to conclude treaties where appropriate If no treaty required, recognize offences as extraditable as between states parties

Extradition Process Common Problems Few Norms in Extradition Treaties Application of Dual Criminality Few Norms in Extradition Treaties Common Problems Bureaucratic Slow Cumbersome Highly Political Final Decision Taken by the Administration Need for Prima Facie Evidence

Domestic law/treaty applies but Extradition: Procedures Urges states to expedite and simplify procedures and evidentiary requirements Offences under UNCAC, not political offence Domestic law/treaty applies but Guarantee of fair process/protections Provisional arrest recognized

Central Authorities for Mutual Legal Assistance & E Extradition Designate a central authority competent to receive and execute requests or transmit them for execution Best Practices for Central Authorities: Up-to-date contact info disseminated Around-the-clock availability Same authority under different treaties Quality control, follow-up Guidelines for domestic and international use Role: ensure speedy execution/ transmission of requests

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