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4/ what are the international instruments to fight corruption ? 5/ what are the national instruments to fight corruption ?
What’s corruption ? The word “Corruption” has its origin in a Latin verb “corruptus” meaning “to break”. Literally, it means “a broken object”. In simple words, corruption means “the misuse of entrusted power for private benefit.” Conceptually, corruption is a form of behaviour which departs from ethics, morality, tradition, law and civic virtue. The term corruption has various definitions. The United Nations Manual on Anti-Corruption, the Transparency International, and the multilateral financial institutions like the World Bank and Asian Development Bank define corruption as, “abuse of public office for private gains” The National Anti Corruption Strategy (NACS) has defined corruption as “a behaviour on the part of office holders in the public or private sector whereby they improperly and unlawfully enrich themselves and/or those close to them, or induce others to do so, by misusing the position in which they are placed.” There are a lot discussions devoted to the understanding of corruption. Different authors express different approaches in defining corruption. The narrowest approach contains definition of corruption as use of public office for private gain The broad approach contains abuse of not only public office but private or commercial one too. Based on these approaches authors distinguish three big groups of corruption: political, personal and commercial. Types of corruption Bribery : an offer of money or favors to influence a public official Tradin influence/infeluence peddling : it’s the situation where a person is selling his/her influence over the decision process involving a third party Graft: requires that the official gains something it refers to favouring supporters for example with government emplyment Nepotism and cronyism : favouring relatives nepotism or personal friends cronyism of an official is a form of illegitimate private gain Embezzlemlment its outright thef of entrusted funds Kickbacks: it s an official’s share of misappropriated funds allocated from his or her organization to an organization involved in corrupt bidding Unholy alliance : it is a coalition among seemingly antagonistic groups Causes of corruption a.Lack of effective Internal accountability mechanism b.Discretionary powers and their flagrant abuse by the public office holders c.Absence of and weakness of the watch-dog agencies d.Elected government's perpetual failure to develop proper ethical and business standards for the public and private sector e.Political leaders' incompetence and betrayal of public trust with penchant for selfenrichment
f.Lack of transparency in the government's decision-making process g.Lengthy and cumbersome procedures in the executive system h.Weaknesses in the judicial system i.Illiterate, apathetic or ignorant populace with inadequate discernment of.political choices j.Power of influential people k.Inadequate wage envelope
Consquences of corruption The menace of corruption has links to a multitude of
vices. Its roots are linked to injustice, mistrust, suspicion, extremism and terrorist activities. It creates a sense of insecurity, exacerbates poverty and adds to the misfortune of the vulnerable segments of the society. It also instills a sense of hopelessness and despondency and threatens the strength of good values which have been established over centuries of civilized struggle. (1) corruption lowers investment and retards economic growth to significant extent ; (2) it reduces the effectiveness of aid flows through the diversion of funds; (3) it leads to loss of tax revenue and to adverse budgetary consequences; (4) it leads to lower quality of infrastructure and public services
why we need to fight corruption ?
Introduction Corruption is a world-wide phenomenon that is multi-faceted. While it also exists in the private sector, corruption primarily involves government offcials. Hence, it is not surprising that corruption is labeled as « endemic in all governments » , where no region, and hardly any country, has been immune. Corruption is probably as old as government itself.Corruption affects almost all parts of society. Like a cancer, as argued by Amundsen, corruption « eats into the cultural, political and economic fabric of society, and destroys the functioning of vital organs. »The World Bank (WB) has identified corruption as the single greatest obstacle to economic and social development. It undermines development by distorting the rule of law and weakening the institutional foundation.Corruption, as the abuse of entrusted power for private gain, has its roots mostly in the financial field, thus, this explains why anti-corruption' measures rank high on the policy agenda of the World Bank and the United Nations as exemplified.Corruption has also attracted the attention of researchers in the academic arena; not only in economy, but also in sociology, political science, law, etc. Research in this area includes detailed descriptions of corruption scandals, case studies, and cross-country studies. It also ranges from theoretical models to empirical investigations.In fact, Corruption has been around for a long time and will be around in the future unless governments can figure out effective ways to combat and to fight it. This is not going to be easy, since before taking such step it is worthy to specify the reasons behind the negative attitude towards every sign of any breach of trust. An equally significant aspect of this issue is that it allows us to determine the nature of this phenomenon and hence, to draw practical and realistic guidelines to be able to fight it. So why do we have to fight corruption? To clearly answer this question, we should focus, firstly, on the rationale for fighting corruption (I) then, on highlighting its hazards and risks, secondly (II).
1- The rationale for fighting corruption : In order to detremine the rationale for the phenomenon of corruption, it is important to evoke, at first, its definition. Defining corruption : different perspectives V. standard definition Understanding the concept of corruption presupposes that one should have a clear dichotomy of what it entails and what constitutes it in the simplest term. There is no single accepted definition for the term ‘corruption’ because what may seem corrupt in one society may not necessarily be perceived as such in another. Though there have been different attempts to define it, there is no precise, clear definition that can be applied to all forms, types and degrees.According to Carl Friedrich, “Corruption is a kind of behaviour which deviates from the norm actually prevalent or behaved to prevail in a given context, such as the political. It is deviant behaviour associated with a particular motivation, namely that of private gain at public expense.” Another commonly used definition is the one given by Leslie Palmier, according to it, corruption is seen as the use of public office for private advantage. However, the definition of corruption given by TRANSPARENCY INTERNATIONAL seems to be the most popular and simplest one, it defineses it as the abuse of entrusted power for private gain. de facto, Corruption is often described as either ‘grand’ or ‘petty’ (petty corruption power in daily situations (eg. the traffic police who takes money every day from taxi drivers in return for not harassing them further). It usually involves modest sums of money in any given exchange. However, endemic petty corruption can result in great costs and can place serious stress on the functioning of state systems, in a way comparable to grand corruption. It is important to note the nuances in trying to categorize different manifestations of corruption. There is not a clear division between where petty corruption ends and grand corruption begins: lowly officials who demand illegal payments from citizens may be doing so because they have to pay a cut of their salaries to their managers, who pay a cut to their superiors, stretching all the way up to the most senior state officials. It includes acts of bribery, embezzlement, nepotism or state capture. It is often associated with and reinforced by other illegal practices, such as bid rigging, fraud or money laundering.is also described as ‘administrative’). Grand corruption typically takes place at the top levels of the public sphere and the senior management levels of business, where policies and rules are formulated and executive decisions are made. It also often involves large sums of money (political corruption is another common term that may be used to refer to grand corruption more generally or specifically to the negative influence of money in political campaigns and political parties).Small scale, administrative or petty corruption is the everyday corruption that takes place at the implementation end of politics, where public officials meet the public. Petty corruption is most commonly found as bribery in connection with the implementation of existing laws, rules and regulations, or in abuse of At the same time, if we asked the question of what does the corruption look like ? we can say that it could be the multinational company that pays a bribe to win the public contract to build the local highway, despite proposing a sub-standard offer. It could be the politician redirecting public investments to his hometown rather than to the region most in need. It could be the public official
embezzling funds for school renovations to build his private villa. It could be the manager recruiting an ill-suited friend for a high-level position. Or, it could be the local official demanding bribes from ordinary citizens to get access to a new water pipe. By taking those many forms that make it difficult to grasp, corruption invokes legislatures all over the world, as in Tunisia, to provide a legal framework and to fully invest in the fight against it.On a global scale, the United Nations has launched a global program against corruption to encourage States members to develop coordinating actions and means to exchange all information.On the European Union’ scale, two conventions were signed in Brussels to fight against corruption. A first is of 26 July 1995, it encourages States Members to punish the laundering of the money got by fraud or corruption.The second convention of 26 May 1997 obliges states of the European Union to criminalize corruption that affects the financial interests of the European Communities.It is noted as well that there is an internationally common will of harmonization and unification of laws to help to identify the phenomenon of corruption. In Tunisia, the Tunisian Criminal Code of 1913 provides for the corruption in the second section of the third chapter of the second book. This chapter deals with offenses committed by public officials or equivalent in the course of or in connection with the exercise of their functions : it states corruption, bribery (section 3), embezzlement committed by public trustees (stakeholders) (section 4) and abuse of authority (section 5). Bearing in mind the efforts taken by different legislatures, corruption due to its wide and deep cultural perspective make the mission of fighting it a herculean task. b- Cultural Perspective of Corrupt Behaviour : is it a necessary evil ?Today some people think that bribe is more powerful than knowledge, more powerful than wisdom, more powerful than degrees. As they said that they can buy all of these with money. Nowadays Corruption is a global phenomenon and it is omnipresent. Corruption in present times has spread over the entire society as a cancerous disease in all forms. Is it really bad? Bad to whom? And good to who? Corruption is good for those who want to conduct their business illegally. It is not good for those who think it is evil. In fact many studies have challenged the view that corruption has a detrimental effect on a nation’s economy and some have even claimed that it can be good for development. However it properly doesn’t matter how much corruption a counrty has. What matter is what state officials do with the bribes that they had collected. It appears that Asians and Eastern Europeans tend to invest this money in sensible business projects in their countries whereas many Africans chose to stock and store it in foreign banks. Therfore corruption is not affecting much the Asian and the East European’ economies but has many negative and serious effects on African one some economists going back to at least Leff (1964) and Huntington (1968) believe that corruption can enhance growth by allowing individuals to pay bribes in order to circumvent inefficient rules and bureaucratic delays. Simply put, in much of the third world, corruption is needed to get things done. If corruption is reduced without corresponding changes to eliminate inefficient rules, business activity and economic growth may slow. If a first best solution of “good rules” is unavailable then corruption that avoids
Corruption involving the Chinese and Melayu started long ago when the Chinese first landed in Tanah Melayu. permits or projects which they could not get on their own.Multiple dimensions of corruption’ harmful effects Corruption in all its manifestations is a dehumanising evil force. most of the illegal activities that happen in Malaysia. emerging and developed economies alike. So there is corruption on the small scale as mentioned above and in the larger scale involving in the millions and men who are titled and well positioned.The Melayu and the Chinese can stop it. But they do not want to do it because they lose either way. corruption causes poverty and other dangerous effects ? If So. But they are done in collusion with some enterprising Chinese businessmen who wanted to expand their businesses or to get the necessary licenses. political and social development. according to some thinkers. But the Melayu who are corrupt and who are involved in large scale corruption do so with the collusion of the Chinese businessmen. one which has the means to offer it and the other party accepting it by virtue of the special position they have in the government or agencies. corruption reduces efficiency and increases inequality. knowing how the system in Malaysia works that often requires patronage. if not from other illegal business activities? But what about corruption that involves bigger names and establishments with Melayu politicians and other figures involved? They also happen. So they need each other. for developing. Overall.some of the restrictions created by bad rules becomes a second best solution and an alternative path to growth. does corruption prevent people from poverty ?! Or. The Indians who were not so good in this business are left behind. without corruption the economy of the Chinese could not grow. With corruption they were able to get land and other properties to start their small businesses. are allowed to go on scot-free.for instance. Still corruption is a necessary evil for both parties. an unnecessary evil that must be fought with all the energy that we can muster. . They affirm that if the Indians were good in corruption as much as the Chinese. It is one of the main obstacles to sustainable economic. logically. But. Thanks to corruption. It was an invention created and brought into the country by the Chinese immigrants. on the contrary. Thanks to corruption which are done by enforcement officers who are mostly Melayu that has allowed those illegal activities to carry on. Where did the money for the money lending operations come from. they can become wealthy now instead of being stuck in poverty. And with corruption they were able to get permits to operate stores and sell things. And it is also an open secret how many of the illegal business operators had ‘cleaned’ their ill gotten wealth by going into proper business by opening supermarkets or other establishments which act as fronts to ‘clean’up more ill gotten wealth. without the criminals arrested. And the Melayu can provide them this. doesn’t this call to seriously get involved in fighting corruption ? 2Hazards and risks of corruption : a.
jealousy and hatred and insecurity. it was the problem everyone knows about. First and foremost. Even for all the talk of a Tunisian economic miracle and all the positive statistics before the revolution. Frustration and general apathy among the public result in a weak civil society. damaging the investment climate and fueling a culture of corruption. corruption impedes democracy and the rule of law. the fact that Tunisia's own investors are steering clear speaks volumes. political. reducing productivity. worsening poverty. Demanding and paying bribes becomes the tradition. low level of democratic culture. distorting political development and sustaining political activity based on patronage.In Social sphere.The effect of corruption can not be overemphasized. social and environmental effects. reducing the transparency of political decision making. b. corruption leads to the depletion of national wealth. both in one way or the other have serious impact on the individual community and country.In other societies. The economic effects of corruption can be categorized as minor and major. public institutions and offices may lose their legitimacy when they misuse their power for private interest. clientelism and money. but . hospitals and roads. It has many dimensions related to economic. reducing political competition. water and drugs. imbalanced economic development. increased poverty and lack of basic needs like food. However. The lack of transparency and accountability that characterized Tunisia's political system similarly plague the economy.6 trillion. creating social unrest and then to their downfall.Closer home. the funneling of scarce public resources to uneconomic high profile projects at the expense of the much needed projects such as schools. It also results in social inequality and widened gap between the rich and poor. civil strive. etc. De facto. problems of accountability and transparency to the public. marginalizing the poor. hindering development. principles of consultation and participation dialogue among others. corruption discourages people to work together for the common good.Estimates show that the cost of corruption equals more than 5% of global GDP (US$ 2. WorldEconomic Forum) with over US$ 1 trillion paid in bribes each year (World Bank). In a democratic system. or the supply of potable water. Corruption was and still be a problem that is at once both political and economic. conversion of public wealth to private and personal property. It is not only a question of ethics. political instability. It is often responsible for increased costs of goods and services. diversion and misallocation of resources. corruption is said to have been factors for the down fall of past regimes byway of undermining the legitimacy of the governments and weakening their structures.The Tunisian example : fight against corruption’ programs after the down fall of past corrupted regime. Corruption may also result in negative consequences such as encoring cynicism and reducing interest of political participation. weakling work ethics and professionalism.In political sphere. Large scale corruption hurts the economy and impoverishes entire population. hindrance of the development of fair in market structures and unhealthy competition there by deterring competition. we simply cannot afford such waste. inflation. Corruption was the « elephant in the room ». the impact of corruption is often manifested through political intolerance.
” The challenge is to ensure that commitments to stop corruption are translated into actions. in creating barriers enough to combat corruption in public procurement. a result of the existing partnership between the government. . ensuring there is no impunity for corruption. despite the existence of transparent rules of tendering procedures. Etc… But. civil society and the United Nations Development Programme in Tunisia in order to promote integrity in the country. Institutions: “Improved implementation of anti-corruption programmes in leading institutions.Since the revolution. conflicts of interest and rules of conduct.no one could publicly acknowledge. participation and fighting corruption that are essential components of democratic governance. do these efforts reach the aspirations and achieve the ambitions of Tunisian people ? If not. which is based on the establishment of a national system of integrity and promote an independent national authority to combat corruption and strengthen the participation of civil society and the training of specialized journalists. the government issued an electronic portal for anti-corruption portal titled National Anti-Corruption. anti-corruption activists. More than that. enforcement and results. only people can stop corruption. what others procedures and guarantees should be taken to ensure both integrity and transparency ? Conclusion / Recommendations Bearing in mind all the facts mentioned above we must ensure that the results of corruption are often disastrous and Fighting it effectively is a necessary Herculean task. the following legislations and institutions were established : -The establishment of a national commission to investigate the facts and corruption in 2011 to look into corruption perpetrated by the old government. In response to the increasing demand on anti-corruption assistance in Tunisia. it failed.Here are five strategic priorities that TRANSPARENCY INTERNATIONAL have identified to fight corruption : People: “Increased empowerment of people and partners around the world to take action against corruption”.The Tunisian government had not made efforts to apply the rules on public officials regarding the announcement of the property. and advise on concrete measures to combat corruption. and investigators do not feel safe when reporting on cases of corruption and bribery. It depends on both the political will and financial resources. many of the whistleblowers. Laws: “More effective enforcement of laws and standards around the world and reduced impunity for corrupt acts”. -Proposal by the Constituent Assembly in December 2012 of a national project to combat corruption. There was no legal provision for the protection of whistleblowers in the public sector (it exists in the private sector however. As a result. The challenge is enforcing fair legal frameworks. businesses and the international fin ancial system. -In late 2012. there has been an increasing popular demand on empowering transparency and accountability.so far. The challenge is to engage with people more widely than ever before – for ultimately. the implementation is still weak).
By the same token.Furthermore. This emphasis is likely to continue in the wake of the popular revolutions and protests in North Africa and the Middle East. We seek to expand the knowledge base of our diverse Movement. the looming threats from organized crime using corruption instruments in some candidate countries stressed the urgency to counter what was termed ‘state capture’. tools and activities. Network: “Strengthened ability to work together”. while in 2003 the United Nations (UN) General Assembly adopted its UN Convention against Corruption (UNCAC). so that we can promote ever more effective anticorruption solutions which have a real impact on people’s lives. which came into force in 1999.International organisations also agreed to give additional importance to anticorruption strategies. stems from the increased pressure to introduce transparency and accountability criteria in development aid packages and mechanisms aimed at assisting developing countries. Following the introduction of the US Government transparency and integrity standards and anticorruption strategies in the 1990s. two years later the Council of Europe introduced the Criminal Convention on Corruption and the Group of States against Corruption (GRECO) Review Mechanism. The EU initiatives against corruption have been in comparison rather . good government/integrity reforms dominated the public policies discourse at a global level. Values: “Higher levels of integrity demonstrated by organisations and people.e. typologies and prescriptions. corruption became the subject of extensive theorizing and substantial empirical research. increased importance was given to countering graft in developed countries. especially youth and those in leadership positions around the world”. which underlined the perverse linkages between authoritarian politics and corrupt practices. i. Similarly. their causes and impact. some of which have a long tradition of tolerating and downplaying the risks of corrupt behavior of public officials. though only in the last two decades has it been a high political priority. The OECD (Organisation for Economic Co-operation and Development) adopted a Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Accordingly. in addition to the tasks of overcoming criminal behaviors and risks in the transition of the countries. explanations. the organized crime/corrupt officials’ associations and interactions aimed at circumventing democratic checks and balances and fair competition rules. This new urgency in discussing the full range and variety of corrupt practices. Good governance and anti-corruption became key concepts in the way both the international financial institutions and Western governments approached Third-World and postCommunist transition reforms and policies. which produced a vast array of approaches. The challenge is to secure greater commitment to integrity by both current and future generations in all aspects of public and business life. how we can fight corruption ? IntroductionThe discussion on corruption is almost as old as government. usually targeted by criminals. anti-corruption institutions’ scanning and monitoring became an important part of the efforts to identify the ‘weak link’ in the public domain.
the giving or receiving of a bribe. 2004. in order that the official act or refrain from acting in the exercise of his or her official duties. p. directly or indirectly. both international organisations and national jurisdictions develop their own definitions of corruption. the method being the breaking of internal or external rules’ (Spencer et al. etc. offering or giving to *or the solicitation or acceptance by+ a public official. and .g. and Khan (1996) who defines corruption as the misuse of public power for motives such as wealth. ‘corruption’ is a broad term used to describe a wide spectrum of behaviors. giving or accepting. for the official himself or herself or another person or entity. the undue advantage or prospect thereof. Corruption was also recognized in the EU’s Internal Security Strategy (ISS) as an issue that undermines the foundations of democratic states. police. a bribe or any other undue advantage or prospect thereof. customs. the objective of which is to allow the participants to make profits they are not entitled to. 2006. power. which encompasses corruption in the private sector is ‘the misuse of entrusted power for private gain‘. New York. the anti-corruption role of the EU laid out in the Stockholm Programme has been re-energised.’ Similarly. border control) of the rule of law system (multiple institutions: judiciary. and in 2011 the EC presented an anti-corruption package that laid out its vision for future anticorruption initiatives. directly or indirectly. The 2005 UN Convention against Corruption describes corruption as: ‘The promise. United Nations Convention against Corruption. of an undue advantage. who speaks of corruption as the abuse of public power not solely for private profit or wealth but also for ‘status gains’ (Nye 1967. 7): systemic. Its most popular definition is ‘the misuse of public office for private gain‘. describe corruption as ‘many kinds of “irregular” influence. to concepts of good governance related to inefficiencies in public service delivery. With the coming into force of the Lisbon Treaty in 2009. where the institution affected is tolerant of corrupt practices.). 2006). a specialised anticorruption international NGO.limited due to the fact that corruption has been considered a domestic issue (‘third pillar’). The Convention entered into force on 14 December 2005.Attempts at developing the typology of corrupt practices have led to the differentiation between three levels of this complex phenomenon (from Spencer et al. offering. coined by Transparency International. or status.Corruption means different things to different people and aggregate definitions are moulded by cultural factors. Spencer at al. 417 -427). Another definition. Thus there can be no universal definition of this phenomenon. Rather. ranging from criminal offences. institutional. tax. The term ‘corruption’ involves diverse processes which have differ-Transparency International (2010): Corruption Perception Index report UNODC. the Council of Europe defines corruption as : ‘requesting. when corruption is incorporated within the entire or particular sections (e. pp. which distorts the proper performance of any duty or behavior required of the recipient of the bribe.’ Slightly broader definitions of corruption have been offered by Nye. In the current academic and political discussions.
or other types of crime like embezzlement. However. oligarchs/ tycoons in Eastern or Southern Europe) to manipulate policy formation and even shape legislation to their own advantage (Hellman and Kaufmann 2001). It should be noted that systemic and institutional corruption may both have normative levels. They highlighted the beneficial roles of corruption as an exchange mechanism of political action for economic wealth and political stability (Huntington 1968). and as a means of creating trust in new institutions during transitions (Bayley 1966). The asking of a bribe by an official is often also defined as a form of ‘extortion/racketeering’. individual. A transaction that is considered corrupt in one state could take place in another. A frequently identified form of grand corruption is ‘political corruption’: ‘the abuse of entrusted power by political leaders for private gain’ (TI. where it is not illegal. corruption was interpreted as a normative concept constituting an immoral act (Banfield 1958. where the person is prepared to undertake illegal actions because their employment provides them with an opportunity to exploit their position for gain.As a political economy category. there is a grey area for multi-national institutions. 21). pp. Passive bribery is the offence committed by the official who requests or receives the bribe.g. theft. Nowadays.Another differentiation is between ‘active’ and ‘passive’ bribery. The US Foreign Corrupt Practices act is one possible approach to deal with the problem: US companies are held liable and could be prosecuted in the United States if they engage in bribery outside the US.In the early days of corruption research. . Another form of grand corruption. Criminal collusion transforms corrupted public officials into associates of criminal networks in their illegal enterprises.It must be understood that because exact definitions of corruption differ quite markedly between different jurisdictions. described as ‘state capture’. simultaneously an alternative approach emerged which stressed that corruption is a functional and inevitable feature of the process by which pre-modern societies were transformed into modern bureaucracies (Merton 1961: 73). and many institutions now operate on a global basis. permits entrenched economic actors (e. Active bribery refers to the offence committed by the person who promises or gives the bribe. Wraith and Simpkins 1963). Myrdal 1968. corruption should not be overstretched to include all forms of either misuse of political power (undemocratic or authoritarian rule). 1. fraud and extortion. a means to integrate elite and non-elite members (Nye 1967). Global Corruption Report 2004. International institutions and academics also distinguish between ‘grand’ corruption (where significant bribes within the highest levels of government are involved) and ‘petty’ corruption (where smaller amounts of money are used to corrupt individuals within the context of established governance and social frameworks). most definitions and scholarly understanding of corruption focus on the negative rather than the functionalist aspects.Recent studies (CSD 2010) show that criminal structures target vulnerable public institutions/sectors and actors using appropriate corruption tools and mechanisms.
information technologies and citizen participation. Yet identifying the causes may be challenging because of the tacit nature of corruption (i. to promote civil society participation and to formulate. the return of stolen assets to their country of origin. low income drives some government officials into seeking additional income. The United Nations Convention will undoubtedly generate positive effects in every country that decides to become a party to it. This locks some countries into poverty and often exacerbates it. After exposing the previous elements we have to know how we can fight corruption ? Fighting corruption can took place by imposing some measures capable to stop corruption. PREVENTIVES MEASURES The United Nations Convention against Corruption is recognized as an opportunity to increase and improve the preventive measures that we have undertaken in procurement. it is not always clear what is cause and what is effect. the Convention will establish mechanisms to facilitate asset recovery.The identification of causes may suggest how to curb corruption. Negotiations among Member States were concluded in Vienna on 30 September 2003. 1. Some of the most innovative and attractive aspects of this Convention are precisely the obligations to adopt preventive measures. At the official opening ceremony in Merida. These measures can preventives (1) but also curitatives (2). and this is seen as a cause of corruption. mutual legal assistance and anti-money-laundering. and getting the new Convention off to a very promising start. But let us hear now the proposals that the members of our panel will present on the following subjects: • The promotion of active public participation. thus lowering the quality of public administration. in December 2003. Usually. the difficulty in measuring it) and. using major international indices that measure corruption. At the same time. Mexico. a number indicative of the height of concern about the problem. GDP) and corruption. implement or maintain policies against corruption. nearly 100 States signed the new instrument.Our study will focus on one of the landmark developments in the fight against corruption around the world is the United Nations Convention against Corruption. Such studies are usually based on some sort of cross-country comparison.The relation between causes and consequences of corruption is often unclear. after two years of deliberation. .The causes of corruption is probably one of the most studied and disputed areas for academics.e. Over the years numerous studies have been carried out examining the causes and the factors that influence levels of corruption. such as those developed by Transparency International or the World Bank. and acting in the private instead of the public interest.g. It will strengthen international cooperation in extradition. The most typical example concerns the relation between development (e. Corrupt officials are less likely to carry out their duties effectively. because of the ambivalent relationship between the causes and consequences of corruption.
undermines the rule of law. it is essential that the system of government authority is balanced and promotes sound financial management that helps in economic. • The establishment of systems for public procurement and administration of public property to increase institutional transparency. Its consequences are well known to all of us: it affects society as a whole. for the opportunity to share experiences. All of us have suffered its effects. equity and aptitude. the organizers of this event. which were promoted by supreme audit institutions. reduces investment and slows economic growth. honesty and transparency. identify new problems and challenges. It is the worst threat to the just development of our people because it alters the patterns of social coexistence. corruption has taken on new forms. • Access to public information and the simplification of government procedures. • The promotion of ethical values. raise awareness. • The removal of public servants’ privileges and immunities that can serve as a mechanism for impunity. In that sense. events and Conventions.In recent years. Corruption is a global phenomenon that has historically had strong roots in every culture in the world. Therefore. causes people to lose confidence in their own governments and institutions. if supreme audit institutions are to be effective. and repels foreign investment and diverts public funds against citizens’ interests. The goal of this panel is to analyse the nature and scope of such preventive measures and the participation of both public and private sectors in their development and implementation. career development and tenure of public servants based on merit. That is why it has been a central theme in several conferences. Governments should also strengthen the role of supreme audit institutions in establishing rules and create a legal framework that guarantees independent action and identifies new control practices. in both the public and private sectors by establishing and observing codes of conduct. develop new cooperation strategies and discuss the consequences for our actions aimed at preventing and eradicating corruption. with the purpose of designing instruments to combat corruption and to save the resources and properties of the State. we thank the representatives of the Government of Mexico and the United Nations. • The implementation of transparent systems of recruitment. social and ethical progress. such as integrity. and with globalization it has become a serious problem for the international community. • The involvement of society in government decision-making and the promotion of accountability. Those practices should promote domestic and international collaboration and cooperation to effectively integrate the various actions .• The implementation of coordinated and efficient policies against corruption. and the creation or support of institutions charged with preventing corruption.
1 Independence of auditing functions To fight corruption. In conclusion. Simón Bolívar. we need an auditing mechanism whose pillars should be impartiality and overall autonomy and independence: Such principles. is monitored by the Republican Moral Council formed by the Ombudsman. that is. In that regard. it is established that supreme audit institutions can fulfil their functions effectively only if they are independent of the monitoring institutions and if they are protected against external influences. which is constituted by the Parliamentary Commissioner for Administration. administrative corruption has become a serious concern to those charged with the responsibility to fight and eradicate it. That Constitution was a conceptual and historic break with the country’s former complex administrative system. formulated by the Liberator. were enshrined by the Supreme Audit Institutions (Intosai) in the Declaration of Lima on Basic Guidelines for Auditing. In the same way. the Declaration provides that supreme audit institutions should enjoy functional and organizational independence. In other words. It is no surprise that the topic of the independence of supreme audit institutions is a consistent theme in Intosai. adopted by the IX International Congress of Supreme Audit Institutions in Lima in 1977. the Solicitor-General and the Auditor General. administrative and organizational autonomy and the power to adopt regulations defining its structure . the people of Venezuela. which was an obstacle to rapid and effective policy implementation. The State authority. passed by direct vote a new Constitution of the Bolivarian Republic of Venezuela. but also because we need such independence to be provided by law. However. we have broken with the classic pattern of the modern State and. a necessary condition to fulfil their mandate. the judiciary and the executive. which is based on the historic idea of the Moral Power. The new Constitution reorganized the powers and the fundamental institutions of the democratic framework. for the first time in its history as a republic. in addition to the legislature. In that Declaration. the Declaration has not been adopted just because we need to attain and retain independence. There have been many proposals to combat corruption. An action plan that attempts to set control milestones in the fight against corruption and to fortify democracy would need to rest on the following fundamental pillars. In that reorganization and re-institutionalization of the Republic. the Crown Prosecution Service and the Auditor-General of the Republic. The controlling body has total independence: functional. that have also been named the Magna Charta of Supreme Auditing. and that the level of independence must be protected by the Constitution. The new Constitution established the Auditor General of Venezuela as a body of the State authority. 1. I would like to recall that in December 1999. we have added the State authority and the electoral power as self-standing branches of government.required in the global fight against corruption. practices which go against the interests of healthy and transparent public management. the controlling entity of Venezuela changes from being the auxiliary body of the former Congress of the Republic into an instrument for the citizens to exercise their right to control the use of public property.
coordination among bodies of internal and external control. 1. internal as well as external. through civil education and by introducing mechanisms to guarantee transparency of public administration. supreme audit institutions have promoted the disclosure of their management practices on their web sites and the establishment of citizen participation schemes. supported by norms and standards that govern the channels and forms by which society communicates and cooperates with supreme audit institutions. their interest in effective accountability. In that way. Citizen participation is a process by which citizens are involved in decision-making. to have an impact on the decision-making processes in every sphere of social life. Therefore. Among the greatest challenges facing supreme audit institutions is the people’s need. whether individual or organized. as well as for the participation of the various stakeholders in both the public and private spheres. we need a plan of action that creates the legal platform providing for transparency in public administration. supervision. which are meant to improve the quality of life. . 1. where citizens have confidence in their institutions. Citizen participation is the exercise of the citizens’ right to participate in and interact with the State.and functions. which is politically stable and socially balanced. The universality of the control is established and the extensive participation of the citizens in the election of the Comptroller General of the Republic is asserted. Similarly. is not a task exclusively to be dealt with by control bodies. The magnitude and depth of the problem is such that the objectives should include the following: • Auditing bodies. as well as with other relevant organizations active in anti-corruption. control and execution of government actions affecting public and private businesses.3 Co-responsibility For the fight against corruption. with the purpose of attaining their full potential for the benefit of the environment in which they operate. however. Thanks to that mechanism. to greater scrutiny of the public entities that generate goods and services.2 Citizen participation and the promotion of transparency Citizen participation is a basis for the fight against corruption. It is understood as a right of people. they have promoted the development of a philosophy of anticorruption control. society is able to monitor the activities of public entities with regard to the mandates they have been given. The fight against corruption. and efficient actions that reduce and prevent corruption and fraud. The fight against corruption is of a strategic nature and its results will depend on the establishment of a more democratic and productive society. working together in the implementation of policies and strategies to fight and prevent corruption. supreme audit institutions have designed ways to keep citizens informed about their activities and the importance of their decisions. including the use of public resources for the purpose of social development. indeed their lawful right.
• Corruption is a phenomenon that equally concerns the private sector. to a greater or lesser extent. but also through the recovery of the proceeds of corruption. all sectors need to join efforts. Citizen participation in topics that are of public interest constitutes an essential condition for the promotion of transparency. as well as all international institutions and actors who collect information and experiences that may enrich our policies and strategies against the problem in question. religious and cultural institutions. An efficient and modern control system that discourages corrupt acts must be urgently developed. should be involved in the promotion of values such as transparency and integrity and the reporting of corruption. Such problems call for the involvement of the private sector. . in order to promote: • A better understanding of the problem. The corruption problems that our nations face today cannot be fought by Governments alone. at the national and international levels. the Department of Public Prosecution. and enhanced exchange of information. Therefore. In the globalized world in which we live. citizens must have access to clear and truthful information about the use and administration of the public resources in those areas that are most relevant to them. Until now. as well as the media. which has been called the “social AIDS”. • Awareness of the gravity of the phenomenon and a better understanding of the existing legal instruments to fight it. the financial aspect is of special importance. whether public or private representatives. Therefore. That will assist in the development of an effective and modern control system that discourages corrupt behaviors. this Convention being one of them. such as the Court of Justice. as well as of the institutions that fight it. Without just. share responsibility in the fight against this challenge that affects our societies. Our aim has to be to eliminate impunity. it will be very difficult to eradicate it. not only through appropriate sanctions for the corrupt. civil organizations and nongovernmental organizations. supreme audit institutions and other governmental and nongovernmental bodies. • Educational. Every citizen has to have access to the necessary information in order to be able to evaluate the institutions. such a system has to interact through cooperation and mutual assistance among national institutions. An honest and transparent judiciary that penalizes corrupt persons and has the means to provide an appropriate and effective answer is essential. but also promotes it through bribery. Bankers must therefore know their clients and the origin of their assets.• A judiciary active in the prevention and punishment of corruption. appropriate and exemplary sanctions against those involved in corruption. such cooperation and coordination have been insufficient. which is not only often involved in corruption. In that context. It must be supported by an effective legal and regulatory framework. All of us.
• Creating an international “alert” register of enterprises operating out of countries qualified as tax havens. That is why the legislation of Venezuela describes it as the “crime of the offended country”.4 Proposals Measures and proposals that can be used. a social terror leading to poverty. • The development of judicial systems that are honest and transparent and that effectively punish corrupt people. I would add “of the offended humanity”. • Endorsing multilateral agreements that provide for the repatriation of the proceeds of public and private sector corruption. For us. 2. 1. CURATIVES MEASURES 2. • Leaders from all spheres of life who are honest.1 Gathering and use of evidence Measures which expedite the gathering and production of evidence While the basic burden of proof rests on the prosecution and applies in all criminal cases. • Creating a fund for the promotion of ethical values in the fight against corruption. corruption is a problem that hurts all peoples of the world. include: • Establishing an international register of enterprises that were involved in corruption. it is an act of terrorism. We have to promote ethical values such as honesty. as long as it continues to steal the resources that should be used to fulfil the needs of societies and increase the quality of life. new behavioral standards and new ways of social interaction. professional and upright and who set an example through their behavior and provide new role models. Finally. better institutional coordination and a solid and internationally focused approach to the problem. hunger and death. changes may be made to expedite the gathering and production of the evidence needed for prosecutors . in order to facilitate inspections of the ways in which they control and regulate their financial transactions. Yes. especially with regard to corruption prevention. integrity and truthfulness in the educational and cultural spheres. • The establishment of practical measures for the implementation of Member States’ strategies in the fight against corruption.• Mutual technical assistance. • Establishing multilateral extradition agreements applicable to public and private sector corruption.
1. might be applied. which might lead to criminal or quasicriminal sanctions. The narrow interpretation is that the presumption would not apply in proceedings prior to the laying of charges. as well as more traditional issues. The use of civil or preventive proceedings is also a significant issue in international cooperation.to meet that burden. Legislation may increase investigative powers or simplify the requirements for admission of evidence in proceedings. The broader interpretation would extend the presumption to all procedures or proceedings. as some countries allow the broad use of such proceedings and remedies. Countries such as . such as the confiscation of property. the law must deal with evidence stored or transmitted using electronic information and communications technologies. and would not apply to cases where there were no charges or prosecution. as opposed to a form of criminal punishment. while others limit their use in order to ensure that they are not used to circumvent or avoid the human rights safeguards which apply to criminal proceedings. The International Covenant on Civil and Political Rights and other international and regional human rights instruments as well as national human rights protections refer only to cases where someone is “…charged with a criminal offence…” however. 2. Precisely how this distinction is made will generally depend on the formulation of domestic human rights and procedural principles. such as bank secrecy and similar laws or practices. including both of these scenarios. Increasingly. there are variations with respect to how this should be interpreted. Thus. it may be possible to use non-criminal proceedings. in some countries. These may be supplemented by criminal offences for conduct such as making false disclosures or obstructing inspections or audits such that corrupt officials. but more routine powers of audit or personal disclosure requirements which may apply to all public servants regardless of any suspicion may also be considered. The basic presumption of innocence and the high onus of proving guilt beyond a reasonable doubt applies only in criminal cases. powers whose exercise is based on suspicions of crime having taken place or are used in support of a criminal investigation are subject to additional safeguards. than in others. balance-of-probabilities standard of proof may be used where allowed by domestic constitutional or other requirements in any case where remedies are being sought but where no one has been actually charged with the commission of a crime. Generally. who fail to comply with transparency requirements that would expose corrupt conduct. and how officials and the courts apply these in practice. may be prosecuted for the disclosure offences instead.1 Civil or preventive forfeiture of corruption proceeds A lower. This approach may also be used if the remedy of recovering assets is fashioned in such a way that it amounts to the civil recovery of wrongfully obtained assets and their return to their rightful owners. Some types of these non-criminal proceedings include the following. and a lower burden of proof. even if criminal or quasi-criminal punishments.
2 The use of regulatory.23 Based on three criteria for determining the criminal nature of a provision. the Commission concluded that the confiscation. to defeat the claim. which is classified as preventive measure. such as law. administrative offences and punishments established for the purpose of regulating companies or financial markets might still apply – and on the basis of proof on the balance of probabilities. The US Forfeiture Laws introduced the concept of "civil action" against the property itself. based on the well-founded suspicion of his participation in a Mafia-type organization and (ii) it was applied only to such properties. under varying conditions. for example. Where private-sector bribery is not made a crime. 1 to the European Human Rights Convention. namely the classification of the proceedings under national law. administrative or disciplinary proceedings While the presumption of innocence and a high standard of proof apply to cases involving a “criminal” offence. many countries have administrative or regulatory measures which are similar to criminal ones but which do not lead to criminal punishments. According to the Proceeds of Crime Act 1996 of Ireland the High Court upon application can seize assets that are suspected to be derived from criminal activity. 2. their essential nature. the European Human Rights Commission and the European Human Rights Courts were called upon to review the consistency of this provision with the principle of the presumption of innocence. that on a balance of probabilities had been found to derive from illicit sources. who.1. is required to establish the innocent origins of his suspicious and hitherto unexplained wealth.Italy 20. the European Human Rights Court affirmed the proportionality of the preventive confiscation as an instrument in the fight against the Mafia. Instead. European Human Rights Commission. Seizure can be ordered without prior conviction or proof of criminal activity on the part of the (civil) respondent. but rather that of the social danger of the respondent. and the type and severity of the penalty. and which are often limited in their application to specific categories of natural or legal persons. such forfeiture laws do not require proof of illicit origin "beyond reasonable doubt". No. 12386/ 1986 With regard to the property right as provided by Art. Ireland 21 and the United States provide. The Commission assigned particular relevance to the fact that (i) the confiscation did not imply a judgment of guilt. 1 Protocol No. did not have the degree of severity of a criminal sanction. Unlike confiscation in criminal proceedings. In one case. Regulations or standards of practice for public servants or regulated professions. which allows for proofing the illicit origin on a balance of probabilities. they consider proof on a balance of probabilities or demand a high probability of illicit origin combined with the inability of the owner to prove the contrary. for the possibility of civil or preventive confiscation of assets suspected to be derived from certain criminal activity. might also include offences and sanctions for corrupt conduct which could lead to professional .
where there is proof that an offence has occurred and that the targeted assets are proceeds While the formulation of such provisions differ. Some countries narrow the proposition further and require that the prosecution establish guilt of a criminal offence beyond reasonable doubt before the presumption of illicit wealth can be invoked. 6 para 2 European Human Rights Convention. once someone has been convicted of a crime.30 The key question for the court regarding the applicability of Art. 2. discharge or removal of practicing privileges. it affirmed that the application of confiscation under the UK Drug Trafficking Act 1994 did not involve any new charge. As far as courts have been called upon to review such provisions. which. Only at this stage the offender is requested to provide an explanation. Criminal forfeiture of assets on a reduced burden of proof One example. the European Court for Human Rights examined the consistency of a confiscation under UK Drug legislation with Art. most of them are based on the concept that the property and pecuniary resources of persons convicted of certain crimes should be presumed to be derived from criminal activities unless he or she is willing to produce a satisfactory explanation of their lawful origin. which commonly arises allows the proceeds of crime to be traced. seized and forfeited based on a reduced standard of proof. In cases where the offenders are deceased. While the Court recognized that implicitly the 1994 Act required the national court to assume that the defendant had been involved in other unlawful drug-related activity prior to the offence of which he was convicted. out of the jurisdiction or cannot be prosecuted for other reasons. Where provided by law. a. again proved on the balance of probabilities. For example. The most common scenario is where the crime is proved in proceedings which lead to the conviction of offenders.3 The use of a reduced burden of proof in specific elements of criminal proceedings In some legal systems. but they usually cannot be used to establish criminal guilt or impose sanctions other than the recovery of proceeds. some countries’ laws allow for confiscation. certain facts may be presumed to the advantage of the State. such mechanisms may be useful for recovering the proceeds of corruption. without any prosecution. 6 para 2 to the confiscation proceedings was whether the prosecutor's application for a confiscation order following the accused's conviction amounted to the bringing of a new "charge" within the meaning of the Article. The "burden of providing a satisfactory explanation" only becomes effective once the prosecution has established that the offender is in direct or indirect control of monies. places the burden of proof once again upon the prosecution. Hence it could not be . since the purpose of this procedure was not the conviction or acquittal of the applicant. they have found them in consistency with the presumption of innocence.discipline.1. after the basic legal burden of proof has been discharged. if satisfactory. property or other pecuniary resources which appear to be out of all proportions when compared to his income.
The other line of approach holds that. sources. If there is some factual link such that. One line of interpretation holds that the right to be presumed innocent overall includes the right to be presumed innocent on each essential element of an offence. which exceeds all legitimate known sources. an evidentiary burden then may be imposed on him or her to show that it was obtained from legitimate. The most common use of such measures in anticorruption legislation is the creation of the offence of illicit enrichment. the presumption is more than likely to be upheld.concluded that the applicant was being charged with a criminal offence beyond the one of which he had already been found guilty. once some elements are proven. In some cases. In this model it is argued that safeguards are needed to ensure that the innocent are not convicted and to prevent legislatures from rendering trials unfair through overturning difficult areas of proof or from converting difficult investigative or evidentiary problems into offence elements which are presumed against the accused. for example. and are based on the policy that the person in possession of the wealth is in the best possible position to produce evidence of how it was acquired. In the case of . Such provisions are unquestionably effective. The accused must then produce an explanation for the lawful origin of the wealth (either an explanation that is simply “credible” or else established on the balance of probabilities). once the prosecution’s case is proved. there is little or no rational explanation other than the guilt of the accused. Criminal offences in which some elements are presumed against the accused A second common example is the establishment of criminal offences in which. the constitutional or legal viability of reversed or diminished burdens of proof will depend on the relationship between what must be proved by the prosecution and what must then be proved by the accused. but in some countries they are thought to infringe the right to remain silent. this effectively raises an evidentiary burden to rebut prosecution evidence and to prove additional facts against the prosecution. proof that a public servant had more wealth than he or she had declared would result in conviction for illicit enrichment unless the accused public servant could establish a legitimate source for the wealth. In systems where asset-disclosure is mandatory. and not illicit. once the basic core elements of an offence have been proved beyond a reasonable doubt. In this model. b. others may be presumed against the accused in the absence of proof to the contrary. once it is proved that the accused public official has wealth. By this (significant) unexplained wealth is presumed to have been illicitly acquired once the basic acquisition of the wealth is proved and is shown to be disproportionate in relation to the known means of the accused. In other countries the provisions are regarded as being valid. and the difference depends to a large degree on how the right to the presumption of innocence is interpreted and applied in each country.
and in particular in the efforts of UN Member States to develop a common approach to . not only in the investigation and prosecution of corruption cases but also in the pursuit of their illicit proceeds.2 International judicial cooperation It is now widely accepted that measures to address corruption must go beyond domestic criminal justice systems. the assumption would be that the officers have enriched themselves illicitly. This has progressed from general consideration and declarative statements. 2. Corruption is no exception. the OECD. from regional instruments developed by groups of relatively like-minded countries (such as the Organisation of American States. The Convention will enter into force when it has been ratified by 30 countries. unless they can show that they have won a lottery or perhaps inherited wealth from a rich relation.1 The United Nations convention against corruption of 2003 Concern about corruption as an international problem has increased greatly in recent years. to the formulation of practical advice. Low-level customs officers may be driving late model Mercedes that they could not conceivably have acquired through their earned income. Given that they are in positions where they can take bribes. In a modern world. the African Union. to the development of binding legal obligations. Mexico. The growth in understanding of both the scope and seriousness of the problem of corruption is reflected in the evolution of international action against it. “no country is an island” in the sense that it can quarantine itself from the impact of events elsewhere. The most dramatic development has been the signing in December 2003 of the United Nations Convention Against Corruption in Mérida. This understanding has also progressed from relatively narrowly-focused measures directed at specific crimes (such as bribery) to more broadly-focused measures against it. and its links to international organised crime.2. 2. The Convention represents a major step forward in the global fight against corruption. and now to the emergence of numerous cases in which one country has sought the assistance of another. this would apply where the legislation and proceedings were structured so as to eliminate all possible legitimate sources of wealth before proven enrichment was presumed to derive from illicit sources. to the globally-based United Nations Convention Against Corruption. and the Council of Europe).illicit enrichment offences. Actions on specific issues within specific regions have become more general in order to deal with the problem more effectively. There can be no doubt that the offence of “illicit enrichment” can be a valuable tool in fighting corruption. drug trafficking and terrorism is plainly recognised.
adopted by the UN Millennium General Assembly in November 2000. 2. the Expert Group called for the creation of specific criminal offences and for the provision of fresh investigative and prosecutorial powers. In formulating the terms of reference for the negotiation of the Convention. including areas such as trading in official influence. money-laundering. both to promote transparency and high standards of conduct (particularly in the public service) and to provide approaches for preventing corruption from taking place. however. It does. corruption is both an instrument and an effect of organized criminal activity. the relevant Intergovernmental Open-ended Expert Group concluded that the new convention should be “comprehensive” (in the sense that it should deal with as many different forms of corruption as possible).2. and “multidisciplinary” (in the sense that it should contain the broadest possible range of measures for countering corruption). A further significant development was the inclusion of a specific Chapter dealing with the recovery of assets. as well as to adopt legislation and administrative . and may achieve the necessary number of ratifications. To go beyond the scope of the Convention against Transnational Organized Crime. in many cases. to come into force during 2002 or 2003. although the degree to which each individual provision is binding depends on the particular wording used. a major concern for countries pursuing the assets hidden abroad by former leaders and senior officials found to have engaged in corruption. a series of specific preventive anti-corruption measures were added. All of these basic elements appear in some form in the final Convention. and various acts of corruption within the private sector which had not been dealt with in many of the earlier international instruments. Building on the broad range of measures included in the Convention Against Transnational Organized Crime. The Group began the development of a broad inventory of specific forms of corruption.both domestic efforts and international cooperation. States Parties are required to criminalize those activities. The Convention establishes four specific crimes to combat activities commonly used in support of transnational organized crime activities: participation in organised criminal groups. with criminal offences specifically tailored to corruption. recognize that. The Convention is a binding international legal instrument. It is presently open for signature and ratification. general abuses of power. and that a significant portion of the corruption associated with organized crime is sufficiently transnational in nature to warrant the development of several provisions in the Convention. corruption and obstruction of justice. is focused on the activities of organized criminal groups.2 The United Nnations convention against transnational organized crime of 2000 The United Nations Convention Against Transnational Organized Crime. The Convention can be seen as the product of a series of both procedural and substantive developments.
but requires steps to ensure that officials take effective action. As well as the mandatory offences. Other Convention provisions may also prove useful in specific corruption cases. In addition to criminalization requirements.systems to provide for extradition. offering or giving…" as well as "…the solicitation or acceptance…" of any "undue advantage". including granting appropriate authorities sufficient independence to protect them against inappropriate influences. provisions to enable the confiscation of any proceeds derived from offences under the Convention and any other property used in. the Convention offence relating to the obstruction of justice would also usually apply. The mandatory corruption offences capture both active and passive corruption: "…the promise. The text calls for "…legislative. administrative or other effective measures to promote integrity and to prevent. In addition to establishing a corruption offence (Article 8). investigative cooperation. there must be: (i) a "public official" and100 (ii) the advantage conferred must be linked in some way to his or her acting corruptly. and (iii) the advantage corruptly conferred may be conferred directly or indirectly. States Parties are also required to criminalize participation as an accomplice in such offences. to the greatest extent possible within their domestic legal systems. mutual legal assistance. offering or giving the benefit is in one country and the public official who requests or accepts it is in another. detect and punish the corruption of public officials”. the Convention also requires the adoption of additional measures against corruption. The Convention requires States Parties to adopt. seizure and forfeiture of the proceeds of crime. preventive and other measures. In cases where the public official involved was working in a criminal justice system and the act of corruption was directed at distorting legal proceedings. as necessary. to bring existing powers and provisions up to the standards set by the Convention. the instrument also requires the adoption of measures to prevent and combat corruption (Article 9). It does not specify details of the measures to be adopted. and supplementary provisions that are discretionary. or refraining from acting. States Parties are also required to consider criminalizing the same conduct where the person promising. The criminalization requirements include central provisions that are binding on States Parties. in the course of official duties. . In both offences. States Parties are also required to consider criminalizing other forms of corruption. or destined for use in. notably the Articles establishing the money laundering offence and providing for the tracing. an offence under the Convention.
ultimately. if the purpose was to obtain or retain some business or improper advantage in the conduct of international business. Bank secrecy cannot be raised as an obstacle to either the tracing of the proceeds of crime or the provision of mutual legal assistance in general.Courts or other competent authorities must have powers to order disclosure or seizure of bank. The sole focus is to use domestic law in exporting countries to criminalize the bribery of foreign public officials. financial or commercial records to assist in asset tracing. Given the role of the private sector in international corruption and its impact on development in the developing world. they can be disposed of in accordance with the domestic laws of the confiscating State. the OECD Convention is relatively narrow in its scope. i. the Convention is of considerable significance. a wide range of assistance and cooperation provisions apply as between States Parties to the Convention to assist in investigations and. Once proceeds or other property have been confiscated. Where these requirements are met. promises or gives "…any undue pecuniary or other advantage …to a foreign public official…" in order to induce the recipient or another person to act or refrain from acting in relation to a public duty. As its name implies. to help secure the extradition or prosecution of offenders. It applies both to active and passive bribery but does not apply to forms of corruption other than bribery. States Parties are required to ensure that incitement. some thirty-five countries had ratified the Convention. are cases where a bribe was paid for purposes unrelated to the conduct of international business and the gaining or retaining of some undue advantage in such business. too. but that State is required to give "…priority consideration…" to returning them to a requesting State Party in order to facilitate the compensation of victims or the return of property to its legitimate owner. Excluded. Nor does it apply to illicit political donations (arguably the largest loophole in the Convention’s framework). aiding and abetting or authorizing bribery is also criminalized. which means that lawyers and accountants who knowingly provide professional services in support of .e. 2.3 OECD Convention on combating bribery of foreign public officials in international business transactions of 1997 The OECD concluded the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions in November 1997. It came into force on 15 February 1999. to bribery that is purely domestic or to bribery in which the direct.2. The requirements of transnationality and organized criminal group involvement have to be met if the various international cooperation requirements are to be invoked in corruption cases. The application of the Convention of 2000 is generally limited to cases that involve an "organized criminal group" or events that are "transnational in nature". As of early 2004. The obligation to criminalize includes any case where the offender offers. indirect or intended recipient of the benefit is not a public official.
or property of equivalent value. in particular . the OECD Working Group on Bribery in International Business Transactions has adopted a rigorous process of assessing the status of implementation and compliance with its terms. Because of this principle. in addition to individuals. When a suspect or convicted person is located in a foreign state (the “requested state”). must be criminalized if the equivalent conduct of bribing a domestic public official is criminalized. peer 102 review has taken place in over half of the 34 States Parties. Prosecutorial discretion is recognized. and of sufficient seriousness to trigger the application of domestic laws governing mutual legal assistance and extradition. Although new forms of judicial cooperation in criminal matters have been developed. In addition to criminal. “extradition for trial” has maintained its importance because the place where the offence was committed is considered the most convenient place to try an offender. Attempts at bribery and conspiracies to bribe. Since 1999.such bribery are also liable to prosecution. 2. civil and administrative penalties to ensure compliance. the instrument also requires measures to be taken so as to deter and detect bribery in the form of accounting practices in order to prevent domestic companies from concealing bribes paid to foreign officials.3. but the Convention requires that it should be exercised on the basis of professional rather than political criteria. they also assess that of other States Parties.3 Extradition “Extradition” is the surrender by one state. which pose a problem for some legal systems. proportionate and dissuasive". The offences in the OECD Convention must also apply to corporations and other legal persons. For each country the Working Group conducted an evaluation that was then made available to the public. Bribing foreign public officials must also trigger national money-laundering laws to the same extent as the equivalent bribery of a domestic official. Any proceeds. Punishments must be "effective. many states. such as transfer of proceedings. of a person who is accused or has been convicted of a crime committed within the jurisdiction of the requesting state. Not only do countries assess their own progress. 2.1 Legal basis for extradition From bilateral treaties to regional agreements and multilateral schemes for extradition There is neither a legal nor a moral duty upon a state to extradite in the absence of a specific agreement binding it to do so. must be either the subject of powers of seizure and forfeiture or the imposition of equivalent monetary sanctions. a prosecutor or investigating judge of the requesting state may decide to have that person extradited from the requested state to face trial or the enforcement of the sentence pronounced in the requesting state. Since the OECD Convention came into force. at the request of another.
3. (The 50-odd countries of the Commonwealth. 2. Some states allow extradition without a treaty. subject to applicable domestic constitutional or legal constraints. where extradition is conditional on a treaty and no treaty exists between two Contracting Parties. Extradition without a treaty. formerly the ”British” Commonwealth.those of the common law tradition. This is the basis for the Commonwealth Scheme. have had their own collective arrangements for extradition since 1966. With the inherent difficulties of separately negotiating a large number of bilateral instruments. To make matters worse. increasingly countries have resorted to regional agreements and multilateral schemes for extradition. on occasions certain serious offences were omitted from the list . more general multilateral conventions have been developed. which imposes in principle a condition of reciprocity. drugs and organized crime. These conventions commonly include articles relating to extradition. directed at particular crimes such as terrorist acts.g. the nationality of the offender (the principle of aut dedere aut judicare)1. such as the following: • The convention offences are deemed to be included as extraditable offences in any treaty existing between Contracting Parties. In a reply to the questionnaire prepared by the UN Secretariat-General on the United Nations Declaration on Crime and Public Security over one half (sixteen out of twentysix) of the responding states indicated that extradition for offences not covered by a treaty or to states where no treaty existed might be permitted on a discretionary basis. as well as many other states.2 Extraditable offences From the “list” approach to the “eliminative” approach most extradition treaties developed in the late 1800’s to the early-to-mid 1900’s defined extradition crimes by reference to a list of offences. • State parties are obliged either to extradite alleged offenders or to bring them before their own courts with jurisdiction based on e. Such lists are generally stagnant. will not extradite in the absence of a treaty or an ad hoc agreement such as an Exchange of Letters. have traditionally based their extradition relationships on bilateral treaties. • A convention is considered to be a treaty for extradition purposes. on the basis of national legislation. which is not treaty-based. Those states. and governments fail to bring them up to date to cover new crimes and changing terminologies as these emerge. Many countries do not permit extradition for the purpose of questioning a fugitive or for their being investigated. referred to above. • The convention offences are considered extraditable if extradition is not conditional on a treaty.) In the face of crimes with effects of international proportion.
B may not be able to extradite X because the facts. the requested 113 state substitutes its own national elements for foreign national elements in the definition of the crime in an extradition request.3. one that focuses not on technical terms or definitions but on the substantive underlying conduct. (If A requests B to extradite X. which has greatly simplified and improved extradition practices where it has been introduced. to respect the rule of reciprocity in international proceedings.from the outset. But not all problems have been solved. states have been looking for a more modern test for dual criminality. regardless of whether the offences in the two states carry different names or have different constituent elements. In relation to the corruption of public officials the problem may arise where states only punish corruption of their own public officials. is considered to be sufficiently serious as to warrant being an extraditable offence. what may be called “theft” in one state may be named “larceny” in another. For example. examines whether the conduct alleged against the fugitive would constitute a criminal offence in the requested state.3 Bars and limits to extradition The “Political offence” and the “fiscal offence” exceptions There is no internationally accepted criteria or definition of the te rm “political offence” or the rule that bars extradition for such an offence. Where it is not possible to supplement the particular treaty by means of a Declaration of Reciprocity. not that of public officials of other states. A flexible solution is the ‘transformative’ interpretation. Although the conduct of the alleged offence may include all of the elements of fraud. by a minimum penalty defined by the two states (such as two years’ imprisonment). to ensure the lawfulness of any form of deprivation of liberty according to the law of the requested state on the grounds that no individual may be arrested or detained on account of facts which are not punishable under the laws of that state. Accordingly. which is followed in such countries as Germany.) This has proved an obstacle to extradition in a number of cases. charged with corruption of a public official in A. For extradition to be available. named or prove criminal offences. for the purpose of extradition. In more recent treaties this approach has generally given way to an “elimination” test: any offence punishable in both the requesting and the requested state. had they been committed on B’s territory. and second. Many extradition cases fail because of a technical approach to dual criminality that stresses even very slight differences between the ways in which particular states have defined. 2. a fugitive is likely to escape extradition. Austria and the Netherlands. as defined in both states. In this approach. This new test. the definitions of the offences created to counter them may differ. would not constitute an offence. the act/s in question must constitute a crime in both the requesting and requested state. This rule serves two different purposes: first. bribery of national and foreign public officials is treated as being the same. Therefore. A distinction is often made between .
In most instances. countries that do not extradite nationals have domestic jurisdiction to prosecute their own nationals for offences committed in the territory of another state (“judicare “ instead of “dedere”).“purely political offences” (offences of opinion. The UN Convention Against Transnational Organized Crime explicitly prohibits States Parties from refusing a request for extradition on the sole ground that the offence is also considered to involve fiscal matters. The traditional reluctance of countries to refuse to include tax offences within the scope of extradition (for the most part because states have no mutual interest in enforcing law peculiar to other state’s political-economic system) is now breaking down owing to increased concerns about organized crime. the matter being governed by treaties or agreements. i. the extradition of a state’s own nationals is prohibited. for the purposes of extradition and mutual legal assistance. if not excluding altogether. either through an explicit provision or by omission from the lists of extraditable offences. Traditionally. massive tax evasion. “the fact that the property obtained or derived from an act of corruption was intended for political purposes. In their replies to a questionnaire prepared by the UN Secretariat-General on the United Nations Declaration on Crime and Public Security. money laundering. Non extradition of nationals In many states. only fourteen of the twenty-eight responding states indicated that their law allowed for the extradition of their nationals. particularly of the civil law tradition.e. it does not constitute an act of “terrorism”). drug trafficking. whether by constitutional law or practice. but which do not constitute wanton or indiscriminate violence directed against an internationally protected person. political expression or those which otherwise do not involve the use of violence such as tre ason and espionage) and “relative political offences” (which involve violence as an incidence of the political motivation and goal of the actor. . In their replies to a questionnaire prepared by the UN Secretariat-General on the United Nations Declaration on Crime and Public Security. particularly in Western Europe. or that it is alleged that an act of corruption was committed for political motives or purposes. fiscal offences have been omitted from the scope of extraditable crimes. shall not suffice in and of itself to qualify the act as a political offence or as a common offence related to a political offence. Attitudes to extradition appear to be softening. the applicability of the political offence exception in respect to violent criminal acts. There is a general trend towards restricting. such as a civilian. The position differed greatly among the states that allowed for this. where the rights of extradited persons are protected by a regional human rights convention. and violations of currency laws.” This is seen as an important provision in a region where corrupt senior public officials had previously been known to flee in to neighboring countries with vast sums of money and to be given political asylum there. In the Inter-American Convention against Corruption of 1996 it is provided that.
bribes. so far. Foreign witnesses may not be available or other evidence may be insufficient or inadmissible. having refused extradition. kickbacks. applicable treaties and case-specific factors. Ten out of the eighteen responding states reported that between 1996 and 1998. However. such as national criminal legislation. Nevertheless.4 Recovery of assets Broadly speaking. One solution is for legislation to provide for the conditional extradition of a national. practical problems continue significantly to impede the effectiveness of this alternative to extradition.sixteen of the states that responded to the survey indicated that their laws provided for obligatory or discretionary jurisdiction in such cases. assets stolen from national treasuries can be classed as being the proceeds of outright theft. It is rare. Lack of legal framework . the diversion of loans granted by regional and international lending institutions and the embezzlement of project funding contributed by bilateral and multilateral donor agencies.4. current and past cases seem to share some similarities. that more than a small proportion of the illegal funds are eventually repatriated to the country from which they were stolen. the following factors hinder the successful recovery of assets or render it impossible: a. extortion and protection money. repatriation of assets diverted and stolen by high level public officials and politicians through corrupt practices has become a pressing issue to many Member States. Because of such occurrences and the astronomical sums that can be involved. Most cases take years to conclude and all are extremely expensive. they had subsequently prosecuted their own nationals on the grounds of aut dedere aut judicare. 2. too. subject to the requirement that he or she be returned promptly after trial to the extraditing country to serve any sentence there. Notwithstanding. the systematic looting of the State treasury. such as the nature of the crime and the admissibility of evidence. 2. It often seems to be the case that. to date successes in repatriation have been few and far between. an adequate case cannot be assembled. For example.1 Problems hindering repatriation The problems hindering repatriation vary depending on the countries involved. despite best efforts to complete investigations and bring a case to trial. Preconditions for such jurisdiction varied in accordance with general factors. the illegal selling of national resources.
(b) the identification of the various players involved in the process of the looting and money-laundering of the assets. Multilateral and bilateral mutual legal assistance treaties are too limited in their substantial and geographical scope and are therefore often not applicable except in the context of the specific cases from which they originated. often fatally. Selection of the appropriate strategy a requesting country should adopt. As a consequence. the exchanges of information between various jurisdictions as well as the public and the private sphere are extremely cumbersome. In such an environment. requires specialized legal expertise that can be costly. access to information as well as investigative powers in the civil process is limited and. the freezing of the assets can be difficult. from civil recovery to criminal recovery and to a mix of both. Often. By the time investigators get access to documents in one jurisdiction. Legal problems differ significantly depending on the jurisdiction in which the recovery effort is pursued (common/continental law) and the approach chosen (civil/ criminal recovery). . therefore. particularly when cases involve cooperation between continental and common law systems. the funds may have been moved elsewhere. Legal problems encountered During the initial phase of a recovery effort. Each method has its particular advantages and disadvantages.. apart from some common law countries. Recovery strategies also vary. Where legal systems are incompatible. The United Nations Convention against Transnational Organized Crime is able to provide responses to some of the problems but. the main challenge lies in (a) the tracing of the assets. mainly because of its limited scope. if not wholly impossible. and the final choice depends on which is expected to work best in the local jurisdiction. The central legal problems are related to jurisdiction and territoriality. Mutual legal assistance treaties (MLAT’s) have often proven ineffective when the object is to trace and freeze assets as quickly as a matter of urgency. Conversely. Civil law. Overcoming jurisdictional problems can slow down investigations. cooperation is intrinsically difficult. b. has the clear advantage since the evidentiary threshold is typically lower than with criminal actions.Recent examples of recovery efforts show that the existing legal framework fails to provide a sufficiently practicable basis for the recovery of assets diverted through corrupt practices. no standard procedure is applied. and (c) the determination of their potential criminal or civil liabilities. allowing for confiscation and recovery based on the balance of probabilities. efforts can fail in the initial phase or not even be undertaken because of the difficulties envisaged. it is applicable only in specific categories of cases.
in several jurisdictions at once. 2. bankers and accountants. In particular. The requesting Party must. Once ratified. in some common law countries (where compensation goes beyond simple economic damage and where moral and punitive damages are possible). In view of the wide definition of the organized criminal group as a "structured group of three or more persons existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention. The Convention.4. freezing or seizing and confiscating of the proceeds of crime. however. extortion and other forms of the abuse of public power for private gain. the mutual legal assistance to be afforded may include such measures as the identification. prosecution must follow preset jurisdictional conditions while civil recovery can be pursued almost anywhere in the world and -perhaps even more importantly . Another advantage of civil recovery consists in the free choice of the jurisdiction in which the recovery of the proceeds of corruption is pursued. the issue of asset recovery as a legal concept will receive some important attention. and include liability on the part of legal practitioners. the Convention will also be applicable to some other crimes. theft. will provide some solutions in this context. The Convention obliges a State Party to provide mutual legal assistance for investigations prosecutions and judicial proceedings in relation to the offences covered by the Convention. Proving the involvement of an organized criminal group in the activity might. also opens alternative approaches as far as civil actions against third parties are concerned. such as the embezzlement of State resources.Civil recovery. In many cases of the more recent past. the Convention may be applicable in a wide number of circumstances. tracing. is executed only in accordance with the domestic law of the requested State. however. however. the main offenders relied on a network of close associates participating in and benefiting from the various criminal acts involved in the looting.2 The United Nations Convention against Transnational Organised Crime Due to the TOC Convention being currently under consideration for ratification. as most of them will be considered as serious crimes under the national law of the State Parties. be problematic. in order to obtain directly or indirectly a financial or material benefit". actions against the facilitators of the looting may be available. . A request. though targeted at combating offences that are transnational in nature and involve organized criminal groups. have reasonable grounds to suspect that such offences are transnational in nature and involve an organized crime group. fraud. That can be particularly important where there is the risk that the offender might transfer his or her loot to a "non-freezing-friendly" jurisdiction. In the case of criminal recovery. The transnational nature of illegal transfers of stolen property will always be present in repatriation cases. For example. however.
can remain problematic. the situation is less clear with regard to the proceeds of corruption. is not mandatory and would only become applicable where a requesting State Party intends to compensate the victims or to return the proceeds to their legitimate owners. viewing the primary objective as being the stripping of benefits from the criminals involved to show that “crime does not pay”. but also among the international private sector and civil society. In addition. In particular. they will be able to obtain the cooperation of other State Parties to identify. Background . While it is relatively easy to obtain repatriation where assets have been directly diverted from State resources. According to Article 14. Where the requesting State cannot show that the funds are actually owned by the State. to give effect to it. if it is granted. the interests at stake for the victim State are less clear unless it suffers damage directly linked to the payment of the bribe. on 14 December 2005. The UNCAC entered into force two years later. It was adopted by the UN General Assembly on 31 October 2003 and was opened for signature in Merida. Recovery of assets. The new legal framework will mean that Member States handling cases of large-scale corruption will in future operate within a functioning and practical legal framework. In such cases. The high number of signatories and ratifications reflects the broad international consensus on the Convention. the requested State may still confiscate the funds as criminal proceeds and keep the funds for themselves. State Parties are required to give priority consideration to returning the confiscated proceeds of crime or property to the requesting State Party. This consensus was not only shared among States. freeze or seize assets deriving from a wide variety of corrupt practices.The Convention also obliges State Parties to submit the request for mutual legal assistance in relation to the confiscation of proceeds from offences covered under the Convention to its competent authorities for the purpose of obtaining an order of confiscation and. Mexico on 9-11 December 2003. however. the requesting State is also entitled to submit an order of confiscation issued by a court of its own territory to the requested State for execution. what are the international instruments to fight corruption ? Presentation (UNCAC): is the first truly global anti-corruption treaty outlining a common language for the anti-corruption movement. trace. The provision insofar as return is concerned. however.
have become a party to the UNCAC. However. two months before the scheduled end date of its activities. the lack of ratification by a few states catches the attention neither Germany. which recommend Member States to use the Code as a tool to guide their efforts against corruption . the Code touches upon very similar and related issues. namely on human trafficking. and conflict of interest . Members states “commits “to criminalize bribery of foreign public official. In the same year. the Nations Declaration against Corruption and Bribery in International Commercial Transactions was adopted. the Committee adopted the final text in October 2003. the United This Declaration underlines the need to promote social responsibility and standards of ethics on the part of companies and recognizes the link between corruptions. Ratification Status As of 1 July 2012. Japan or new Zealand have ratified. As indicated above. After seven sessions. Three protocols to this Convention have been adopted. UNGA Resolution 54/128 of 17 December 1999. 160 States. such as the receipt of gifts that may influence the exercise of a public official’s function . the smuggling of migrants and annexed to UNGA Resolution . The Ad Hoc Committee was officially convened for the first time in December 2001. fair and competitive business and accountable governance. UNGA Resolution 55/25 of 15 November 2000. However. in 1996. UNGA Resolution 51/191 of 16 December 1996. UNGA Resolution 52/87 of 12 December 1997. The text of the Code does not explicitly mention corruption although the term is referred to several times in the introductory paragraphs. This broad participation can be seen as an indication of large global support. including such important global players as the US. the UN General Assembly (UNGA) adopted the International Code of Conduct for Public Officials. China and India.
as well as the emphasis placed on international assistance and asset recovery. civil or administrative sanctions. etc. training and specialization. monitoring and co-ordination. public procurement standards. State Parties must set up anti-corruption bodies. anti-money laundering regulations. The UNCAC is not only innovative in terms of the acts it criminalizes. subject to its Legal principles.2) lay down certain conditions that anticorruption authorities should meet if they are to be effective. This mandatory provision does not leave much room for man oeuvre Independent domestic anti-corruption authorities 1 Even though the multilateral implementation system is still in its infancy. together with a clear legal basis and mandate for the anti-corruption body. 3. and take measures to prevent private sector corruption. Member States can decide whether to impose criminal. adequate resources. and . The Conventions refer to the requirements of. promote the active participation of civil society and institute a comprehensive regulatory regime for banks and other financial institutions to prevent money-laundering. inter alia. Clarification can be found in an OECD study. according to which independence requires most of all structural and operational autonomy. 2) Prevention of corruption in power structures (including prevention of conflicts of interest. assets declaration by public officials. Both the UNCAC and the Council of Europe Criminal Law Convention on Corruption (infra.2. independence. strengthen the integrity of the judiciary. The UNCAC does not specify what conditions need to be met in order for anticorruption bodies to be considered independent. 3) Education and awareness raising. establish appropriate procurement systems. but also because of its strong focus on prevention. research. the UNCAC requires State Parties to set up domestic corruption-preventing and corruption combating bodies. The OECD study distinguishes four areas of anti-corruption efforts on which such national bodies should focus: 1) Policy development.).
which gives one anti-corruption agency the primary responsibility of implementing an anti-corruption program (e. public procurement authorities. It covers misappropriation of EU funds through fraudulent statements or false statements. 2003 – Adoption of the Framework Decision 2003/568/JHA on Combating Corruption in the Private Sector The various anti-corruption instruments were rather fragmented. the US. The EU broadened its focus. 4) Investigation and prosecution (including coordination with auditors.g.g. .. These considerations have led the EU to elaborate a comprehensive anti-corruption framework. Moreover. which focus on strengthening anti-corruption measures in already existing governmental agencies (e.). with the last step being a comprehensive two-year review process of Member States’ general anticorruption achievements. foreign law enforcement bodies. 1997 – Adoption of the Convention on the Fight against involving Officials of the European Communities or Official of Member States of the EU. Certain States have adopted multi-agency models. Russia. the Commission adopted a proposal for harmonized procurement rules. Hong Kong. 2011. Korea and Thailand). Botswana. 1996. tax authorities. EUROPEAN INSTRUMENTS European Union The EU started off with modest anti-corruption instruments tackling mainly the misdirection of EU funds in 1995. etc. India and South Africa). containing definitions of and harmonized penalties for.. offences of corruption. Chile. including anti-corruption safeguards. the recent euro-crisis made clear that differences in national ethics and governance can endanger the very survival of the EU institutions. as well as on rule of law and human rights. banking sector.Adoption of the Convention on the Protection of the European Communities’ Financial Interests was adopted. Other countries opted for the single-agency model.Adoption of the Protocol to the Convention. Council of Europe The general focus of the Council of Europe (CoE or Council) lies on the development of common and democratic principles in Europe. UK. 1995.
adopted on 11 May 2000. the Group of States against Corruption.It is important because its member states are home to the largest multinational . 1999 . It focuses on effective civil remedies for any damage caused by corrupt acts. This Convention was ratified by 43 States. free media and preventing shielding legal persons from liability. To harmonize the definition of a certain type of corruption. namely that of public officials. such as limiting immunity for corruption charges. 2003 . Both the Criminal Law Convention and the Civil Law Convention are open for signature by non-European countries. These guidelines set out a broad spectrum of anti-corruption measures. GRECO’s goal is to monitor compliance with the Council’s anti-corruption standards. GRECO has 49 members. The Council has issued several soft law instruments.of which only one (the US) is not a member of the CoE.The Civil Law Convention was adopted.the Council established GRECO. One of them is the Recommendation on Codes of Conduct for Public Officials. 1999 .2009 Recommendation of the Council on Tax Measures for Further Combating Bribery of Foreign Public Officials . The anti-corruption implementation mechanism. As of 1 July 2012. 1997.An additional Protocol to the Criminal Law Convention on Corruption was adopted. 39 States have become parties to the . OTHER REGIONAL INSTRUMENTS The OECD : the Organization for Economic Co-operation and Development The OECD Convention was signed on 17 December 1997 and entered into force on 15 February 1999. 1999. GRECO serves as a platform for both the exchange of best practices and peer pressure. States that are not members of the Council of Europe can become members of GRECO. Currently.It adopted many recommendations namely the 2006 Recommendation on Bribery . denying tax deductibility for bribes.The Criminal Law Convention on Corruption adopted by the Council of Europe.The Committee of Ministers of the CoE adopted the Twenty Guiding Principles for the Fight against Corruption. of which only one (the US) is not a member of the CoE.
bothin the private and public sector.American convention against corruption: The Inter-American Convention against Corruption (OAS Convention) was adopted by the Organization of American States (OAS) on 29 March 1996 . and provides a broad list of preventive measures -No satisfactory implications because the protocol lacks an adequate mechanism to implement it The Economic Community of West African States Protocol on the Fight against Corruption (ECOWAS Protocol) was signed on 21 December 2001 but has not yet entered into force provides for a wide range of preventive measures. -In 2010 the OECD adopted ‘’ the 10 principles for transparency and integrity in lobbying’’ -The scope of the Convention is limited to active bribery The inter. ranging from codes of conduct for public officials. transparency in procurement …etc Paradoxally it refers to freedom of speech and freedom of press as anti-corruption instruments which makes this convention a pionneer . the text of the OAS Convention was the most far-reaching of the international anti-corruption instruments African instruments : The African Union Convention on Preventing and Combating Corruption (AUConvention) was adopted in Maputo.the OAS adopted model laws. Mozambique on 11 July 2003 and entered intoforce around three years later -The AU Convention provides for an Advisory Board comprised of 11 experts monitor implementation Not far-reaching in its implications due to the lack of logistic support -The Southern African Development Community Protocol against Corruption (SADC Protocol) was enacted on 14 August 2001 and entered into force four years laterIt covers a wide range of corrupt practices. such as the model law on norms of conduct for public officials and on access to administrative information -Before the adoption of the UNCAC.
research and development of indicators However. Operational level. accountability. the Bank considered governance and corruption to be “political issues” and thus outside of its mandate.ANTI-CORRUPTION INITIATIVES IN INTERNATIONAL FINANCIAL INSTITUTIONS The World Bank Case of the The World Bank has assumed a leadership role in the fight against corruption and in integrating governance concerns in its operation. World Bank (1997) Helping Countries Combat Corruption: The Role of the World Bank. And let’s not mince words: we need to deal with the cancer of corruption. Through policy dialogue. October 6. Ensure the highest fiduciary standards in WB operations . and institutional capacity. lending operation. 1996 In 1997—the Board of Executive Directors of the Bank endorsed the first anticorruption strategy which had four principles: To prevent fraud and corruption in Bank-financed projects To assist countries that ask for help in curbing corruption To “mainstream” the Bank’s corruption concerns directly into country analysis and lending decisions. Wolfensohn. the interest by the WB for corruption and governance is relatively new. History For most of its first 50 years. technical assistance. and To join the broader international effort against corruption.” President James D. It changed with President Wolfensohn’s “cancer of corruption” speech at the 1996 World Bank and IMF Joint Annual Meetings: “We need to address transparency. September The World Bank 2007 strategy has 3 main components: 1) Country level : Support for country efforts to strengthen governance and combat corruption.
business. depending on specific circumstances—while there is no “one size fits all. country systems—better national institutions are the more effective and long term solution to governance and corruption challenges and to mitigating fiduciary risk for all public money. 2. especially to poor people. Engaging systematically with a broad range of government. and the WBG is committed to supporting a country’s own priorities. consistent with its mandate. The WBG will strive to strengthen. including by strengthening transparency. in principle. and third-party monitoring in its own operations. The country has primary responsibility for improving governance—country ownership and leadership are key to successful implementation. World Bank lending programs can.” the WBG will adopt a consistent approach towards operational decisions across countries. support economic. rather than bypass. Global level: Coordinate engagement with the broader development community Country level : Support for country efforts to strengthen governance and combat corruption. . administrative. To promote good governance and curtailing corruption. provides better services. and civil society stakeholders is key to GAC reform and development outcomes—so. Helping countries strengthen their effectiveness. the Bank supports initiatives to improve governance and reduce corruption. political.” The form of WBG engagement on GAC will vary from country to country. and seeking creative ways of providing support even in poorly-governed countries—“don’t make the poor pay twice. 5. transparency. The WBG is committed to remaining engaged in the fight against poverty. participation. The country’s government remains the principal counterpart for the WBG. including that from the Bank. systematically anchored in national strategies. and judicial reforms to enhance a nation’s capacity matters The GAC Strategy: 7 Guiding Principles The WBG’s focus on GAC follows from its mandate to reduce poverty—a capable and accountable state creates opportunities for poor people. the WBG will scale up existing good practice in engaging with multiple stakeholders in its operational work. and accountability. 3. and improves development outcomes. To improve growth rates and enhance the delivery of services.
and other actors at the country and global levels to ensure a harmonized approach and coordination based on respective mandates and comparative advantage—“the WBG should not act in isolation Example: CHAD Direct government revenues from the Chad-Cameroon pipeline were placed in an escrow account at Citibank in London. Transparency International: Established by a former World Bank Director in 1993. Paraguay. Later reopened Examples of other countries where the Bank has stopped lending. Turkmenistan Venezuela. Indonesia. international business people and experts (Mostly expatriates). the NGO TI has been a driving Force behind the global anti-corruption movement. to a large extent. Zimbabwe. which makes years unreliable Voices from developing countries have moreover criticized the CPI as a very narrow and non-nuanced way of ranking countries according to Western standards of corruption. The WBG will work with donors.7. These critics argue that such score boards only pit developing countries against each other and do not in any way enhance their Struggle against corruption. for at least some period: Angola. The data input for the CPI comes from different sources. which may render the final ranking obfuscated. Belize. so the Bank withdrew. The GCB is based on surveys of around 90. to be disbursed for agreed expenditures by an oversight committee comprising government. Uzbekistan. Based on polls with. international institutions. Mauritania. . and civil society. Notwithstanding these critiques. supreme court. Because of mounting corruption concerns. the Bank recently stopped lending and closed the country office. parliament. This renders the uptake more limited than that of the CPI. Only countries for which sufficient data are available are included in the ranking The number of countries may consequently differ from year to year.000 households in almost 90 countries and does not provide a ranking. PRIVATE INITIATIVES 1. the individual country scores are widely quoted in the international press and publications on the issue of corruption In addition to the CPI. Kenya. While ringfencing worked. TI publishes a Bribe Payers Index (BPI) and a Global Corruption Barometer (GCB). the Government wanted to change course and spend the money on arms.
a voluntary code of conduct initiative for which member corporations can sign up. the International Chamber of Commerce (ICC) adopted its first set of flagship rules against corruption. It is based on a survey of business executives focusing on the business practices of foreign firms in their country. PACI calls : for signatory companies to adopt a zero-tolerance policy on bribery. a Geneva-based NGO funded by business membership contributions. Critics have argued that interviewing firms may lead to biased results.In 1977. Other initiatives: Freedom House is a Washington-based NGO which focuses on several issues. Its dual monitoring system combines self-evaluation with external verification. The rules recommend integrating certain of their provisions into all contracts with business relations. Its Another forum for anti-corruption discussions is the World Economic Forum (WEF). . The ICC Rules on Combating Corruption serve as self mended in 2011 and reflect the spirit partners to comply with anti-corruption laws. out of 183 Countries 2. The International Chamber of Commerce: . The Bribe Payers Index (BPI) provides a ranking of leading exporting countries according to the perceived likelihood of their firms to bribe abroad. 3. The 2011 CPI ranked the Netherlands as the 7th least corrupt country. including corruption: Its main focus is however on freedom of the press. the WFC launched PACI (Partnering Against Corruption Initiative). As firms will often minimize their willingness to pay bribes abroad when completing TI Surveys. In 2004.
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