United Nations Convention against Corruption. United Nations Office on Drugs and Crime Division for Treaty Affair

Transcription

1 United Nations Convention against Corruption United Nations Office on Drugs and Crime Division for Treaty Affair

2 Negotiations Process Adoption of United Nations Convention against Transnational Organized Crime -Creation of the Ad Hoc Committee for the Negotiations of a new Convention against corruption (A/RES/55/61) Terms of Reference Intergovernmental Open-ended Expert Group Meeting 7 sessions of the Ad Hoc Committee held in Vienna with over 120 States participants Adoption of the United Nations Convention against Corruption (A/RES/58/4) High-level Political Signing Conference in Merida, Mexico

3 Corruption --- Multi-dimensional Challenge Human Rights Human Security CORRUPTION Democracy Rule of Law Quality of Life Markets Sustainable Development

4 Corruption A Global Threat Cost of corruption exceeds by far the damage caused by any other single crime World Bank More than 1 trillion US$ is paid in bribes a year Asian Development Bank Cost of corruption = up to 17% of GDP The harm exceeds the proceeds US$ 1 bribes = US$ 1.7 damage

5 Cases of Grand Corruption Mobuto, Zaire US $ 5 billon More Than the Foreign Debt 87% of the Annual Government Budget Duvaliers, Haiti US $ 500 million Nigerian kleptocrats US $ 100 billion More than double the DGP 3-4 times the Foreign Debt

6 GA Res.51/191 UN Declaration Growing Responses TOCC Negotiation May 2005 Merida GA Res.58/4 Conference Adoption of CAC GA Res.55/61 Establishment of Ad Hoc Committee Ad Hoc Committee(1 st 7 th Sessions) GA Res.55/181 Asset Recovery 8 th Crime Congress 1997 EU Convention 1996 OAS Convention 1997 OECD Convention 1999 CoE Conventions 2003 AU Convention

7 Aims and Structure of Convention 1. Prevent and Combat Corruption More Efficiently and Effectively 2. International Cooperation & Technical Assistance including Asset Recovery 3. Integrity, Accountability and Proper Management of Public Affairs and Property Implementation Technical Assistance Information Exchange Asset Recovery Preventive Measures International Cooperation Criminalization Law Enforcement

8 Use of Terms (Art.2) No Definition of Corruption Broad and Comprehensive Definition of Public Officials 1. Any Person Holding a Legislative, Executive, Administrative or Judicial Office 2. Any Person Performing a Public Function or Providing a Public Service 3. Any Other Person So Defined in the Domestic Law of State Party

9 PREVENTIVE MEASURES Art.5-14

10 Anti-Corruption Policies and Bodies Requirements Art.5 Art.6 Implement Effective and Coordinated Anti-Corruption Policies Ensure the Existence of Anti-Corruption Bodies

11 Preventive Measures(Art. 5-14) Codes of Conduct (Art.8) Integrity of Judiciary and Prosecution Service (Art.11) Transparency Integrity Accountability Public and Private Sectors Civil Society (Art.9) Prevention of Money-Laundering (Art. 14)

12 Preventive Measures in Private Sector Enhanced Accounting and Auditing Standards Effective, Proportionate and Dissuasive Civil, Administrative or Criminal Penalties Comprehensive Preventive Measures in Private Sector Prohibition of Off-the- Book Account and other Acts No Tax Deductibility of Expenses Constituting Bribes

13 Other Preventive Measures Participation of Society Ensure Active Participation of Civil Society (Art.13 (1)) Provide Public Access to Anti- Corruption Bodies (Art.13 (2)) Encourage Citizens to Report on Offences (Art.39) Prevention of Money-Laundering Establish Comprehensive Regulatory and Supervisory Regime Ensure Internal and International Cooperation (Art.14)

14 CRIMINALIZATION Art.15-25

15 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 Public Sector (Art.21) Embezzlement in Public Sector (Art.22)

16 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

17 Active Bribery of Foreign Public Officials (Art.16) Promise, Offering or Giving Solicitation or Acceptance by Foreign Public Official or Officials of Int l Organizations Undue Advantage for the Official or Another Person/Entity in Order to Act or Refrain from Acting in the Exercise of Official Duties

18 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

19 Money Laundering (Art.23) Mandatory Offences 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

20 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

21 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)

22 Protection of Witness and Reporting Persons (Art.32-35) In Accordance with its Domestic Legal System and within its Means Protection of Reporting Persons Protection against Any Unjustified Treatment Protection of Witness, Experts and Victims Effective Protection from Potential Retaliation or Intimidation Optional

23 Jurisdiction (Art.42) Offence on Territory, Vessel or Aircraft Offender not Extradited Because of Nationality No Safe Haven for Offenders Offenders or Victims Are Nationals Participation of Laundering Outside Territory Aimed at Laundering in Territory Offence against State

24 INTERNATIONAL COOPERATION Art.43-50

25 International Cooperation Mandatory Question of Offences Dual Criminality Optional Offences Narrow Dual Criminality Requirements In MLAs

26 Either Extradite or Prosecute Own Nationals May 2005 Extradition (Art.44) Ensure that All Convention Offences are Extraditable Offence between States Parties Conditional Surrender of Nationals to be Returned to Serve Sentence Grounds of Refusal Human Rights No Refusal on Sole Fiscal Ground Consultation before Refusal Harmonization with Existing Treaties and Domestic Law

27 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 to Receive, Execute and Transmit Request No Refusal of MLA on the Ground of Bank Secrecy MLA can be Provided in the Absence of Dual Criminality for Non-Coercive Measures

28 Other Cooperation Measures Special Investigative Techniques (Art.50) Cooperation in Inquiries Channels of Communication and Information Exchange (Art.48) Joint Investigation (Art.49)

29 ASSET RECOVERY Art.51-59

30 Asset Recovery Major Breakthrough 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)

31 Return of Assets (Art.57) Return Depending on How Closely the Assets were Linked to the Requesting State Party Embezzled Public Funds from the State Return to the State Return to the State if it Establishes Ownership or Damage Recognized by the Requested State Party as a Basis for Return Other Cases Proceeds of Other Offences Covered by UNCAC May be Returned to the Requesting State Party, a Prior Legitimate Owner or Used for Compensating Victims

32 Other Mechanisms Prevention and Detection (Art.52) Prevent Illicit Transfers Generate Records for Eventual Trace and Confiscation Direct Recovery (Art.53) Provide Direct Recovery in Civil or Other Proceedings Comprehensive Framework for International Cooperation (Art.54-55) Incorporate More General MLAs Requirements, Mutatis Mutandis

33 Confiscation of Proceeds of Crime Obligation to Enable Confiscation of Proceeds of Crime Internationally Art.55 Domestically Art.31 Domestically & Upon Request from Another Party

34 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

35 TECHNICAL ASSISTANCE AND INFORMATION EXCHANGE Art.60-62

36 Technical Assistance & Information Exchange (Art.60-62) Technical Assistance and Exchange of Information Training Programmes Criminal Justice And Institution-Building Voluntary Contributions UN Funding Mechanism Percentage of Proceeds of Crime Studies, Research and Evaluation Assistance to Developing Countries and Countries in Transition

37 IMPLEMENTATION Art.63-64

38 Mechanisms for Implementation (Art.63-64) Promote, Facilitate and Review Implementation Make recommendation Facilitate Information Exchange COSP to Address Criminalization of Passive Bribery of Officials of International Organizations Within 1 Year from Entry into Force 8 th Ad Hoc Committee Well before COSP 1 To Prepare Draft Rules of Procedure COSP 1 Entry into Force

39 ROAD AHEAD AND UNODC ACTIVITIES

40 Road Ahead May 2005 Conference of States Parties Effective Implementation Full Compliance Universal Ratification Entry into Force Promotion of Ratification

41 Status of Convention Open for Signature at UNHQ in NY until 9 Dec High-level Political Signing Conference At Merida, 9-11 December Dec-03 Mar-04 Jun-04 Sep-04 Dec-04 Mar-05 Signature Ratification

42 Signatures and Ratifications Signatories in Western Europe & Others 22 No Ratifications Signatories in Asia 26 Signatories in Africa 37 Jordan Algeria Benin Egypt Djibouti Kenya Madagascar Mauritius Namibia Nigeria Sierra Leone South Africa Uganda Sri Lanka Turkmenistan Signatories in Latin America 20 El Salvador Mexico Peru Signatories in Eastern Europe 15 Belarus Hungary Croatia Romania

43 Palermo and Merida Conventions Ratifications Months Palermo Convention Merida Convention

44 Ratifications May 2005 Palermo and Merida Conventions Entry into Force of Palermo Entry into Force of Merida Months Palermo Convention Merida Convention

45 For further information: Crime Conventions Section United Nations Office on Drugs and Crime P.O.Box 500 Vienna A-1400 Austria Tel: Fax: e_convention_corruption.html

46 Thank you for your kind attention