UNITED NATIONS CONVENTION 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:

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 ) 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

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 )

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 )  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 ) 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 ) 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 ) 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 )  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 )  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 )  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 ) 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 ) 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