The United Nations Convention against Corruption

1. The United Nations Convention against Corruption

2. Pre-existing anti-corruption treaties, why a new one? 2003 United Nations Convention against Corruption 2003 African Union Convention 1999 Council of Europe Conventions 1997 Organization for Economic Co-operation and Development Convention 1997 European Union Convention 1996 Organization of American States Convention

3. Negotiations process Adoption of United Nations Convention against Transnational Organized Crime - Creation of Ad Hoc Committee for the Negotiations of a new convention against corruption 2000 Terms of Reference – Intergovernmental Open-ended Expert Group Meeting 2001 8 sessions of Ad Hoc Committee held in Vienna with over 120 participating States 2002 2003 General Assembly adoption of the United Nations Convention against Corruption High-level Political Conference in Merida, Mexico

4. Prevention (Art. 5-14) Criminalization Asset Recovery International Cooperation Structure of the Convention

5. Provisions' different levels of obligation • Mandatory provisions - obligations to legislate, e.g. “each State party shall adopt” • Measures that States parties must consider applying, e.g. “shall consider adopting” or “shall endeavour to” • Optional measures, e.g. “may adopt”

6. Art.6 Art.5 • Anti-corruption bodies: • to implement the policies • disseminate anti-corruption knowledge • The bodies must: • be independent • adequately resourced • properly trained • Effective and coordinated • anti-corruption policies to: • promote participation of civil society • reflect the rule of law and proper management of public affairs • review legal and administrative measures Anti-corruption policies and bodies Art.36 (law enforcement)

7. Preventive measures – public sector (Art. 7) • Civil servants’recruitment, hiring, retention, promotion and retirement to be based on merit and aptitude • Special measures for selection, training and rotation for public positions vulnerable to corruption • Training programmes • Transparency in the funding of candidatures and political parties Transparency Integrity Accountability

8. Preventive measures – codes of conduct (Art. 8) • Codes of conduct • Public officials’ reporting of corruption • Disclosures of activities or gifts from which conflicts of interest may derive • Disciplinary measures Transparency Integrity Accountability

9. Preventive measures – public procurement (Art. 9) • Based on competition and objective criteria • Public distribution of invitations to tender, conditions for participation, award criteria • Systems of review and appeal • Declaration of interest, special training of public procurement personnel Transparency Integrity Accountability

10. Preventive measures – public reporting (Art. 10) • Citizens to have access to information and decision-making process of public administrations • Administrative procedures to be simplified • Information on activities of public administrations to be published Transparency Integrity Accountability

11. Preventive measures – the judiciary (Art. 11) Transparency Integrity Accountability • Independence of the judiciary • Independence of prosecution service • Specific codes of conduct

12. Preventive measures - private sector (Art. 12) Enhanced accounting and auditing standards Proportionate and dissuasive civil, administrative or criminal sanctions Comprehensive Preventive Measures in Private Sector Promote cooperation between law enforcement and private entities Prevent conflicts of interest Prohibition of off-the-book account and other acts No tax deductibility of expenses constituting bribes

13. Other preventive measures Participation of Society (Art. 13) • Ensure active participation of civil society • Provide public access to anti-corruption bodies • Encourage citizens to report on offences • Money-laundering (Art. 14) • Comprehensive regulatory and supervisory regimes for banks and non-bank financial institutions • Ensure domestic and international cooperation

14. Prevention Criminalization Law Enforcement (Art. 15-42) Asset Recovery International Cooperation The United Nations Convention against Corruption

15. 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 Private Sector (Art.21) Embezzlement in Private Sector (Art.22) Mandatory and other criminal offences

16. 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 Active Bribery Passive Bribery Bribery of public officials (Art.15) Promise, Offering or Giving Solicitation or Acceptance by National Public Official

17. 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 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

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) 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. Use of Physical Force, Threats or Intimidation or Promising, Offering or Giving Undue Advantage Use of Physical Force, Threats or Intimidation To Interfere with Exercise of Duties of Judicial or Law Enforcement Officials To Interfere with Giving Evidence or Testimony Obstruction of justice (Art.25)

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) Bribery in Private Sector (Art.21) Abuse of Function (Art.19) Illicit Enrichment (Art.20)

22. Law enforcement (Art.36) • States parties shall: • Ensure the existence of bodies or persons specialized in combating corruption through law enforcement • Independence (political and financial) • Resources – adequate • Training – appropriate

23. Prevention Criminalization Law Enforcement Asset Recovery International Cooperation (Art.43-50) The United Nations Convention against Corruption

24. International cooperation Question of Dual Criminality Mandatory Offences Optional Offences Narrow Dual Criminality Requirements In MLAs

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

26. Widest Measures of Mutual Legal Assistance in Investigations, Prosecution and Legal Proceedings in relation to Convention Offences • Designate Central Authority to Receive, Execute or 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 Mutual legal assistance (Art.46)

27. Other international cooperation measures Law enforcement cooperation (art. 48) Parties shall cooperate with one another to enhance the effectiveness of law enforcement…to establish channels of communication and secure the rapid exchange of informationconcerning all aspects of the offences covered by the Convention Special investigative techniques (art.50) Parties must allow “controlled delivery” and other special investigative techniques, such as electronic or other forms of surveillance and under cover operations and allow for the admissibility in court of evidence derived Joint investigations (Art. 49) Parties shall consider agreements in matters related to investigation, prosecution and judicial proceedings and the establishment of joint investigation bodies

28. Prevention Criminalization Law Enforcement Asset Recovery (Art.51-59) International Cooperation The United Nations Convention against Corruption

29. Chapter V, Asset Recovery (art. 51-59)“The return of assets is a fundamental principle of this Convention…Parties shall afford one another the widest measure of cooperation and assistance in this regard” (art. 51)

30. 5 Mandatory offences • Bribery of 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 private sector (art.21) • Embezzlement in private sector (art.22) Scope of application of Chapter V: corruption offences

31. Prevention of transfer of proceeds of crime (Art. 52) • States Parties must require their financial institutions to: • Verify the identity of customers • Determine the identity of beneficial owners of high-level accounts • Apply enhanced scrutiny to accounts maintained by prominent public officials • Report suspicious transactions to competent authorities • Prevent the establishment of banks with no physical presence – “shell banks” The implementation of these provisions may require legislation

32. 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 The implementation of these provisions may require legislation or amendments to civil procedures and jurisdictional rules Direct recovery (Art.53) – civil prosecution Advantages of civil prosecution: useful when criminal prosecution in not possible – death or absence of alleged offender allows to establish liability on the basis of civil standards – different evidentiary requirements

33. States Parties shall permit their competent authorities to States Parties shall consider measures to • Give effect to an order of confiscation issued by a court of another Party • Freeze or seize property upon a freezing or seizing order issued by a court of a requesting Party • Allow confiscation without criminal conviction – when offender cannot longer be prosecuted because of death, flight or absence Recovery and international cooperation (Art.54-55) The implementation of these provisions may require legislation

34. Property confiscated (art. 31 or 55) must be disposed of, including by return to prior legitimate owners (art. 57) Disposal of confiscated property, no longer at the discretion of the confiscating state Internationally art.55 Domestically art.31

35. Confiscation and disposal of proceeds of crime is relatively recent in international law • UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) • UN Convention against Transnational Organized Crime (2000) • UNCAC breaks new grounds: parties must adjust legislative and institutional formworks to comply with it

36. Return of assets (art.57) Return to requesting Party Embezzled public funds or laundering of embezzled public funds Return to requesting Party if it can reasonably establishes prior ownership Proceeds of other offences of corruption Confiscated property may be returned to the requesting Party, prior legitimate owner or used for compensating victims Other cases Return of assets is unconditional, Parties to give special consideration to agreements for the final disposal of assets

37. The work of UNODC to promote the Convention Effective Implementation Full Compliance Universal Ratification Assist the Conferences of the States Parties Promotion of Ratification Provision of Technical Assistance

38. For further information: United Nations Office on Drugs and CrimeVienna International CentrePO Box 500, A-1400 Vienna, Austria Tel: +43-1-26060-4487 Fax: +43-1-26060-7 4506 http://www.unodc.org/unodc/en/crime_ convention_corruption.html Hatem.aly@unodc.org THANK YOU FOR YOUR ATTENTION