United Nations Convention against Corruption
Since 1996, corruption started to be a subject of interest to various countries that, regionally, initiated agreements of joint action on the matter. However, the first conventions did not cover all of the world's regions, leaving outside a great part of Asia and the Middle East. In addition, some agreements only covered specific approaches, such as bribing. The international community revealed an interest to outline a truly global agreement, capable of preventing and fighting corruption in all its forms. In this context, the United Nations Convention against Corruption was born.
To access the Convention's full text in the six UN official languages, follow the list of signatory countries and the ratification status of each country, as well as technical guidelines and manuals on how to implement the document's articles, go to the Convention's webpage.
The Convention is composed of 71 articles, divided in 8 chapters. The most important articles are found in four chapters and deal with the following subjects: prevention, criminalization, recovery of assets and international cooperation. These are the chapters that require legislative adaptations and/or actions for the Convention's implementation in each country.
In the chapter that deals with preventive measures, the Convention provides that the States Parties shall implement effective policies against corruption that promote the participation of society and reflect the principles of the rule of law, such as integrity, transparency and accountability.
The States Parties must adopt selection and recruitment systems with objective criteria of merit. They must also take measures to increase transparency in the funding of candidates and political parties campaigns. They must develop codes of conduct that include measures to facilitate reporting of acts of corruption by public officials and discourage the acceptance of gifts, or any other action from which a conflict of interests may result.
The public procurement processes must facilitate ample participation and adopt previously determined, fair and impersonal criteria. They must also adopt measures to increase citizens' access to public accounts and stimulate the participation of society in this process, as well as adopt preventive measures against money laundering. Finally, the Convention underlines the crucial role played by an independent judiciary and prosecution service in the fight against corruption.
The Convention provides measures for corruption prevention not only within the public sector, but also for the private sector. Among those measures are: developing of auditing and accounting standards for companies; providing effective civil, criminal and administrative sanctions that are capable of inhibiting future actions; promoting cooperation between law enforcement and private companies; preventing conflict of interests; forbidding the existence of slush funds within companies; discouraging tax exemption or reduction for expenditures deemed as bribes or similar conducts.
Criminalization and law enforcement
In the chapter on criminalization and law enforcement, the Convention requires States Parties to introduce in their legal systems criminal offences that comprise not only the basic forms of corruption, such as bribery and embezzlement of public funds, but also other acts that contribute to corruption, such as obstruction of justice, trading in influence and laundering of corruption proceeds. The criminalization of corruption is conditioned by the existence of mechanisms that allow the criminal justice system to perform actions of apprehension, prosecution, punishment and recovery of assets.
The States Parties must establish as criminal offences: bribery of national public officials; active bribery of foreign public officials; embezzlement, misappropriation and other diversion of property by a public official; money laundering; and obstruction of justice. They must also, to the extent possible, seek to establish as criminal offences the following conducts: passive bribery of foreign public officials, trading in influence, abuse of function, illicit enrichment, bribery in the private sector and embezzlement of property in the private sector.
The Convention guides the States Parties to consider bribery as a crime and defines it as the promise, offering or giving, to a public official, directly or indirectly, of an undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain from acting in the exercise of his or her official duties. The soliciting or acceptance of undue advantages is also included in the crime's definition.
The States Parties must establish as criminal offences, when committed intentionally: Embezzlement, misappropriation or other diversion of property by a public official, for his or her benefit or for the benefit of another person or entity, of any property, public or private funds or securities or any other thing of value entrusted to the public official by virtue of his or her position. The same applies to the acts of converting, transferring, concealing or disguising proceeds of crime, as well as the acquisition, possession or use of such proceeds.
The Convention also includes two articles on offences related to the obstruction of Justice: the use of physical force, threats or intimidation to induce false testimony or to interfere in the giving of testimony or the production of evidence; and, by the same means, interfere with the exercise of official duties by a justice or law enforcement official.
The chapter on international cooperation emphasizes that all aspects of the anti-corruption efforts need international cooperation, such as mutual legal assistance in the collection and exchange of evidence, in extradition procedures and in joint actions of investigation, tracing, freezing of assets, seizure and confiscation of corruption proceeds. The Convention innovates, in comparison to previous treaties, by allowing mutual legal assistance even in the absence of dual criminality, when coercitive action is not involved. The principle of dual criminality provides that a country does not need to extradite people who committed acts that are not considered crimes in its territory. However, with the Convention, these requirements become more flexible, as it provides that even crimes that are not defined with the same terms or within the same category can be deemed as equivalents, enabling the extradition.
Extradition must be guaranteed in the cases of crimes mentioned by the Convention, and when the requirements of dual criminality are met. The States Parties must not consider corruption crimes as political crimes, and States that make extradition conditional on the existences of treaties may consider the Convention as legal basis for extradition. If a country does not extradite nationals, it must use the other country's application as basis for internal proceedings. Moreover, the Convention provides that the States Parties seek to harmonize their national laws with the existing treaties.
The States Parties may refuse an extradition request if they detect persecution based on the person's sex, race, religion, nationality, ethnic origin or political opinions. States Parties may not refuse a request for extradition on the sole ground that the offence is also considered to involve fiscal matters. The Convention recommends a consultation with the requesting country before an extradition request is refused, even though such consultation is not mandatory, in order to allow the presentation of additional information that may result in a different result.
The Convention provides wider measures of mutual legal assistance in investigations, proceedings and legal procedures related to crimes defined in the Convention. Among these measures, some are worthy of special note, such as the designation of a central authority to receive, execute and transmit requests for mutual legal assistance; the prohibition to refuse mutual legal assistance based on banking secrecy; and the possibility of mutual legal assistance in the absence of dual criminality, as long as the assistance does not include coercitive action. States Parties shall cooperate closely with one another to enhance the effectiveness of law enforcement action and to establish communication channels to ensure fast interchange of information on all aspects regarding the offences covered by the Convention. They must also consider concluding bilateral or multilateral agreements or arrangements allowing the establishment of joint investigative bodies in relation to matters that are the subject of investigations, prosecutions or judicial proceedings in one or more States. Moreover, States must allow the use of controlled delivery and other special investigative techniques, such as electronic surveillance and other forms of surveillance and undercover operations, and allow for the admissibility of the evidence obtained through these techniques in court.
Asset recovery is an important innovation and a fundamental principle of the Convention. The States Parties must afford one another the widest measures of cooperation and assistance in this field, in order to protect the interests of victims and legitimate owners of the assets.
The States Parties must require financial institutions to verify the identity of its customers; to determine the identity of beneficiaries of high-value accounts; to conduct enhanced scrutiny of accounts kept by high public officials; to report suspicious transactions to the competent authorities; and to prevent the establishment of banks that have no physical presence.
Article 53 focuses on States Parties having a legal regime allowing another State party to initiate civil litigation for asset recovery or to intervene or appear in domestic proceedings to enforce their claim for compensation. Based on this article, States Parties can initiate civil action in the courts of another State Party to establish title to or ownership of property acquired through crimes covered by the Convention. The courts must be able to order those found guilty of corruption to compensate another State Party, and to recognize, in confiscation decisions, another State Party's claim as legitimate owner of the assets. The advantage of the civil action comes to light when criminal proceedings are not possible due to the death or absence of the defendant and the establishment of responsibility is possible based on civil procedure evidence standards.
The States Parties must allow their authorities to give effect to seizure or freezing orders issued by a court of another State Party. They must also consider adopting measures that allow the confiscation, even without a criminal conviction, when the defendant cannot be prosecuted by reason of death or absence.
As a general principle, the States Parties must dispose of the confiscated property, returning them to their legitimate owners, in cases of embezzlement and diversion of public property as well as in those involving money laundering of these illegally obtained resources. For other corruption crimes, the same procedures should be adopted when the legitimacy of the owner can be reasonably established. In all other cases, priority consideration is given to the return of confiscated assets to the requesting party, the return of assets to their legitimate owners or their use for the compensation of victims.
Conference of the States Parties to the United Nations Convention against Corruption
As a guardian of the United Nations Convention against Corruption, UNODC acts to promote the ratification of the Convention, provide technical assistance, assist the Conferences of the States Parties, promote the effective and efficient implementation of the Convention, assist the States Parties in achieving full compliance with the Convention and facilitate the universal ratification of the Convention.
By UNODC's initiative, in November 2009 over 1,000 governmental experts from 125 countries gathered in Doha, Qatar, to examine the implementation of the United Nations Convention against Corruption. The main result achieved was the creation of a mechanism to monitor the implementation of the Convention. According to the agreement, all States will be monitored each five years, with the intention of evaluating the fulfilment of their obligations. This evaluation is conducted through a software that includes a checklist on the Convention's implementation. The results of these evaluations, based on auto-evaluation processes and visits by international experts, will be compiled in review reports by country. That means, from now on States will be judged by actions they are effectively taking against corruption and not by promises they make. Moreover, this evaluation will show the existing gaps in each country and will guide the actions of UNODC in terms of technical cooperation.