Compendium of International Legal Instruments on Corruption
Total Page:16
File Type:pdf, Size:1020Kb
Compendium of International Legal Instruments on Corruption Vienna, November, 2003 1 Disclaimer The views expressed herein are those of the Authors and editors and not necessarily those of the United Nations 2 EQUIP YOURSELF The International Legal Instruments on Corruption, in which all the major relevant global and regional international treaties, agreements, resolutions and other instruments are compiled for reference. These include both legally binding obligations and some "soft-law" or normative instruments intended to serve as non-binding standards. The United Nations Handbook on Practical Anti-Corruption Measures for Prosecutors and Investigators is part of a larger package of materials intended to provide information and resource materials for countries developing and implementing anti-corruption strategies at all levels, as well as for other elements of civil society with an interest in combating corruption. The package consists of the following major elements: The United Nations Guide for Anti-Corruption Policies which contains a general outline of the nature and scope of the problem of corruption and a description of the major elements of anti-corruption policies, suitable for use by political officials and senior policy-makers. The United Nations Anti-Corruption Toolkit, which contains a detailed set of specific Tools intended for use by officials called upon to elaborate elements of a national anti-corruption strategy and to assemble these into an overall strategic framework, as well as by officials called upon to develop and implement each specific element. An example of Country Assessments, as well as all four publications, are available on the Internet on the United Nations Office of Drug Control (UNODC) web page: http://www.UNODC.org/corruption.html To assist users who do not have Internet access, individual publications will also be produced and updated as necessary. 3 FOREWORD The completion of the negotiation of the UN Convention Against Corruption, marks a special day in the efforts of the world community to strike a series of effective blows against corruption, a scourge that impoverishes our societies and affects us all. The new Convention seeks to ensure the criminalization of a wide range of forms of corruption, and obliges Member State both to take effective preventive steps to protect the integrity of their institutions and to provide a framework for improved international cooperation, including in the important field of asset recovery. Many challengers lie ahead. The United Nations will continue to do its part in working with Governments and civil society in this global, ongoing struggle. We all recognize, too, that the conclusion of the Convention merely marks the beginning of a phase of implementation. We recognize, too, that there are, inevitably, compromises within the Convention that will draw some criticism. However, I am confident that the mechanisms within the draft document are such that over the years ahead, the Convention will grow in its reach, its strength and its effectiveness. It is important that we all see the conclusion of the draft as a step in a continuing process, not as a destination in itself. Fighting corruption has become more urgent than ever. As our knowledge of the phenomenon expands, we realize the extent of the harm it causes. Corruption impoverishes national economies, undermines democratic institutions and the rule of law, and facilitates the emergence of other threats to human security, such as organized crime, human trafficking and terrorism. For too long, the world has looked the other way while corrupt elites looted their countries of hundreds of millions and even billions of dollars, generating economic chaos and depriving citizens of education, health services, basic infrastructure and functioning public services. Even when good governance is restored or attained, officials can spend years or even decades attempting to retrieve funds that are often be critically needed to repair the social and economic damage done by their corrupt predecessors. Antonio Maria Costa EXECUTIVE DIRECTOR, UNITED NATIONS OFFICE ON DRUGS AND CRIME 4 UNITED NATIONS CONVENTION AGAINST CORRUPTION Article 1* Statement of purpose The purposes of this Convention are: a) To promote and strengthen measures to prevent and combat corruption more efficiently and effectively; b) To promote, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery; c) To promote integrity, accountability and proper management of public affairs and public property * UNITED NATIONS CONVENTION AGAINST CORRUPTION. Background Member States of the United Nations have successfully finalised the United Nations Convention against Corruption. Negotiations were concluded in Vienna on 30 September 2003 after two years of deliberations. The Convention marks a major step forward in international cooperation against corruption, the summary and content of the instrument have been included in the The first session of the Ad Hoc Committee was held in January 2002. At its first and second sessions, the Committee concluded the first reading of the draft Convention. At the third and fourth sessions, the second reading was completed. At the fifth session, in March 2003, the Committee reached a preliminary agreement on a significant number of provisions. The sixth session lasted a week longer than the previous five, including night sessions. After a debate lasting through to 3:50 a.m. on Saturday, 9 August 2003, delegates from the 128 Member States decided to continue working on the Convention on Corruption’s final details in a short, three-day seventh session, which concluded on 1 October, 2003. Substantive Highlights of the Convention include: Prevention. Corruption can be prosecuted after the fact, but first and foremost, it requires prevention. An entire chapter of the Convention is dedicated to prevention, with measures directed at both the public and private sectors. These include model preventive policies, such as the establishment of anticorruption bodies and enhanced transparency in the financing of election campaigns and political parties. States must endeavour to ensure that their public services are subject to safeguards that promote efficiency, transparency and recruitment based on merit. Once recruited, public servants should be subject to codes of conduct, requirements for financial and other disclosures, and appropriate disciplinary measures. Transparency and accountability in matters of public 5 finance must also be promoted, and specific requirements are established for the prevention of corruption, in the particularly critical areas of the public sector, such as the judiciary and public procurement. Those who use public services must expect a high standard of conduct from their public servants. Preventing public corruption also requires an effort from all members of society at large. For these reasons, the Convention calls on countries to promote actively the involvement of non-governmental and community-based organizations, as well as other elements of civil society, and to raise public awareness of corruption and what can be done about it. Article 6 * Preventive anti-corruption body or bodies 1. Each State Party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies, as appropriate, that prevent corruption by such means as: (a) Implementing the policies referred to in article 5 of this Convention and, where appropriate, overseeing and coordinating the implementation of those policies; (b) Increasing and disseminating knowledge about the prevention of corruption. 2. Each State Party shall grant the body or bodies referred to in paragraph 1 of this article the necessary independence, in accordance with the fundamental principles of its legal system, to enable the body or bodies to carry out its or their functions effectively and free from any undue influence. The necessary material resources and specialized staff, as well as the training that such staff may require to carry out their functions, should be provided. 3. Each State Party shall inform the Secretary-General of the United Nations of the name and address of the authority or authorities that may assist other States Parties in developing and implementing specific measures for the prevention of corruption. * UNITED NATIONS CONVENTION AGAINST CORRUPTION. Criminalization. The Convention requires countries to establish criminal and other offences to cover a wide range of acts of corruption, if these are not already crimes under domestic law. In some cases, States are legally obliged to establish offences; in other cases, in order to take into account differences in domestic law, they are required to consider doing so. The Convention goes beyond previous instruments of this kind, criminalizing not only basic forms of corruption such as bribery and the embezzlement of public funds, but also trading in influence and the concealment and “laundering” of the proceeds of corruption. Offences committed in support of corruption, including money- laundering and obstructing justice, are also dealt with. Convention offences also deal with the problematic areas of private-sector corruption. · International cooperation. Countries agreed to cooperate with one another in every aspect of the fight against corruption, including prevention, investigation, and the prosecution of offenders. Countries are bound by the Convention