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Anti-Corruption Conference – Corruption: Impact & Monitoring
Anti-korupcijska konferencija – Korupcija: uticaj & monitoring
19. oktobar 2005, Podgorica
Uticaj korupcije na ekonomski razvoj i smanjenje siromaštva
Impact of corruption on economic development and poverty reduction
I panel session
United Nations Convention against Corruption
United Nations Office on Drugs and CrimeDivision for Treaty Affair(Updated: 13 October 2005)
Division for Treaty Affairs19 Oct 2005
Negotiations ProcessAdoption of United Nations Convention against Transnational Organized Crime -Creation of the Ad Hoc Committee for the Negotiations of a new Convention against corruption (A/RES/55/61)
7 sessions of the Ad Hoc Committee held in Vienna with over 120 States participants
Adoption of the United Nations Convention against Corruption (A/RES/58/4)
High-level Political Signing Conference in Merida, Mexico
2000
2002
2003
2001Terms of Reference – Intergovernmental Open-ended Expert Group Meeting
Division for Treaty Affairs19 Oct 2005
Corruption --- Multi-dimensional Challenge
Human Rights
Democracy
Rule of Law
MarketsQuality of Life
Human Security
Sustainable Development
CORRUPTION
Division for Treaty Affairs19 Oct 2005
Corruption – A Global Threat
Cost of corruption exceeds by far the damage caused by any other
single crime
• World Bank – More than 1 trillion US$ is paid in bribes a year and the harm exceeds the proceeds – US$ 1 bribes = US$ 1.7 damage
• Asian Development Bank – Cost of corruption = up to 17% of GDP
Division for Treaty Affairs19 Oct 2005
Growing Responses
8th CrimeCongress
GA Res.51/191UN Declaration
TOCC Negotiation
GA Res.58/4Adoption of CAC
MeridaConference
GA Res.55/61Establishment of
Ad Hoc Committee
GA Res.55/181Asset Recovery
Ad Hoc Committee (1st –7th Sessions)
1996 OAS Convention
1997 EU Convention
1997 OECD Convention
1999 CoE Conventions 2003 AU
Convention
Division for Treaty Affairs19 Oct 2005
Aims and Structure of Convention
PreventiveMeasures
InternationalCooperation
AssetRecovery
Technical AssistanceInformation Exchange
Implementation
CriminalizationLaw Enforcement
3. Integrity, Accountability and Proper Management of Public Affairs and Property
1. Prevent and Combat Corruption More Efficiently and Effectively
2. International Cooperation & Technical Assistance including Asset Recovery
Division for Treaty Affairs19 Oct 2005
Use of Terms (Art.2)
No Definition of Corruption
Broad and Comprehensive Definition of Public Officials
1. Any Person Holding a Legislative, Executive, Administrative or Judicial Office
2. Any Person Performing a Public Function or Providing a Public Service
3. Any Other Person So Defined in the Domestic Law of State Party
Division for Treaty Affairs19 Oct 2005
Art.6Art.6
Ensure the Existence of Anti-Corruption Bodies
Anti-Corruption Policies and Bodies
Requirements
Implement Effective and Coordinated Anti-Corruption
Policies
Art.5Art.5
Division for Treaty Affairs19 Oct 2005
Preventive Measures(Art. 5-14)
TransparencyIntegrity
Accountability
Codes of Conduct (Art.8)
Public and Private Sectors Civil Society (Art.9)
Integrity of Judiciary and Prosecution Service (Art.11)
Prevention of Money-Laundering (Art. 14)
Division for Treaty Affairs19 Oct 2005
Comprehensive Preventive Measures in
Private Sector
Preventive Measures in Private Sector
Enhanced Accounting and Auditing Standards
Prohibition of Off-the-Book Account and other
Acts
No Tax Deductibility of Expenses Constituting
Bribes
Effective, Proportionate and Dissuasive Civil, Administrative
or Criminal Penalties
Division for Treaty Affairs19 Oct 2005
Other Preventive Measures
Participation of Society • Ensure Active Participation of Civil
Society (Art.13 (1))• Provide Public Access to Anti-
Corruption Bodies (Art.13 (2)) • Encourage Citizens to Report on
Offences (Art.39)
Prevention of Money-Laundering • Establish Comprehensive Regulatory
and Supervisory Regime • Ensure Internal and International
Cooperation (Art.14)
Division for Treaty Affairs19 Oct 2005
Mandatory and Other Criminal Offences
5 Mandatory OffencesBribery of National Public Officials (Art.15)Active Bribery of Foreign Public Officials (Art.16)Embezzlement, Misappropriation and Other Diversion of Property (Art.17)Money Laundering (Art.23)Obstruction of Justice (Art.25)6 Other Criminal Offences
Passive Bribery of Foreign Public Official (Art.16)Trading in Influence (Art.18)Abuse of Function (Art.19)Illicit Enrichment (Art.20)Bribery in Public Sector (Art.21)Embezzlement in Public Sector (Art.22)
Division for Treaty Affairs19 Oct 2005
Bribery of Public Officials (Art.15)
Promise, Offering or Giving
Solicitation or Acceptance by National Public
Official
Undue Advantage for the Official or Another Person/Entity in Order to Act or Refrain from Acting in the Exercise
of Official Duties
Undue Advantage for the Official or Another Person/Entity in Order to Act or Refrain from Acting in the Exercise
of Official Duties
Division for Treaty Affairs19 Oct 2005
Active Bribery of Foreign Public Officials (Art.16)
Promise, Offering or Giving
Solicitation or Acceptance by Foreign Public
Official or Officials of Int’l Organizations
Undue Advantage for the Official or Another Person/Entity in Order to Act or Refrain from Acting in the Exercise
of Official Duties
Division for Treaty Affairs19 Oct 2005
Embezzlement (Art.17)
Embezzlement, Misappropriation or other Diversion of Property by a Public Official
For his or her Benefits
Of any Property, Public or Private Funds or Security or Any Thing of Value
Entrusted to Public Officials by Virtue of his/her Position
Division for Treaty Affairs19 Oct 2005
Money Laundering (Art.23)Conversion or Transfer of Proceeds of Crime
Concealment or Disguise of Proceeds of Crime
Mandatory Offences
Subject to Basic Concept of Legal
System
Acquisition, Possession or Use of Proceeds of Crime
Participation, Association, Conspiracy, Attempt…
Division for Treaty Affairs19 Oct 2005
Obstruction of Justice (Art.25)
Use of Physical Force, Threats or Intimidation
or
Promising, Offering or Giving Undue Advantage
To Interfere with Giving Evidence or Testimony
Use of Physical Force, Threats or Intimidation
To Interfere with Exercise of Duties of Judicial or
Law Enforcement Officials
Division for Treaty Affairs19 Oct 2005
Other Criminal Offences (Art.18-22)
Passive Bribery of Foreign Public Officials or
Officials of Int’l Org (Art.16)
Trading in Influence(Art.18)
Abuse of Function (Art.19)
Bribery in Private Sector
(Art.21)
Illicit Enrichment (Art.20)
Embezzlement inPrivate Sector
(Art.22)
Division for Treaty Affairs19 Oct 2005
Protection of Witness and Reporting Persons (Art.32-35)
Protection of Reporting Persons
Protection against Any Unjustified Treatment Optional
Protection of Witness, Experts and Victims
Effective Protection from Potential Retaliation or
Intimidation
In Accordance with its Domestic Legal
System and within its Means
Division for Treaty Affairs19 Oct 2005
Jurisdiction (Art.42)
No Safe Haven for Offenders
Offence on Territory, Vessel or Aircraft
Offender not ExtraditedBecause of Nationality
Offence againstState
Offenders or VictimsAre Nationals
Participation of Laundering Outside Territory
Aimed at Laundering in Territory
Division for Treaty Affairs19 Oct 2005
International Cooperation
Mandatory Offences
Optional Offences
Narrow Dual Criminality Requirements
In MLAs
Question of Dual Criminality
Division for Treaty Affairs19 Oct 2005
Extradition (Art.44)
Ensure that All Convention Offences are
Extraditable Offence between States Parties
Either “Extradite or Prosecute”
Own Nationals
No Refusal on Sole Fiscal Ground
Harmonization with ExistingTreaties and Domestic Law
Division for Treaty Affairs19 Oct 2005
Mutual Legal Assistance (Art.46)
Widest Measures of Mutual Legal Assistance in
Investigations, Prosecution and Legal Proceedings in relation to
Convention Offences
• Designate Central Authority to Receive, Execute and Transmit Request
•No Refusal of MLA on the Ground of Bank Secrecy
•MLA can be Provided in the Absence of Dual Criminality for Non-Coercive Measures
Division for Treaty Affairs19 Oct 2005
Other Cooperation Measures
Joint Investigation
(Art.49)
Special Investigative Techniques (Art.50)
Cooperation in Inquiries
Channels of Communication and Information Exchange
(Art.48)
Division for Treaty Affairs19 Oct 2005
Asset Recovery – Major Breakthrough
Measures to Prevent and Detect Transfer of Proceeds (Art.52)
Return of Assets as Fundamental Principle
(Art.51)
Measures for DirectRecovery of
Property (Art.53)
Measures for Recovery of Property through
International Cooperation (Art.54 - 55)
Measures for Return andDisposal of Assets (Art.57)
Division for Treaty Affairs19 Oct 2005
Return of Assets (Art.57)
Other Cases
Proceeds of Other Offences Covered by UNCAC
Embezzled Public Funds from the State
Return Depending on How Closely the Assets were Linked to the Requesting State Party
Return to the State
Return to the State if it Establishes Ownership or Damage Recognized by the Requested State Party as a Basis for Return
May be Returned to the Requesting State Party, a Prior Legitimate Owner or
Used for Compensating Victims
Division for Treaty Affairs19 Oct 2005
Other Mechanisms
Prevention and Detection (Art.52)•Prevent Illicit Transfers
•Generate Records for Eventual Trace and Confiscation
Direct Recovery (Art.53)•Provide Direct Recovery in Civil or Other Proceedings
Comprehensive Framework for International Cooperation (Art.54-55)
•Incorporate More General MLAs Requirements, Mutatis Mutandis
Division for Treaty Affairs19 Oct 2005
Obligation to Enable Confiscation of
Proceeds of Crime
Domestically & Upon Request from Another Party
Confiscation of Proceeds of Crime
Domestically Art.31 Internationally Art.55
Division for Treaty Affairs19 Oct 2005
Direct Recovery of Property (Art.53)
Courts shall be allowed to
Courts shall be allowed to
Recognize, in confiscation decisions, another party’s claim as legitimate owner of property
Courts shall be allowed to
Courts shall be allowed to
Order corruption offenders to pay compensation to another state party
States parties shall be allowed to
States parties shall be allowed to
Initiate civil action in another party’s courts to establish ownership of property acquired through corruption
Division for Treaty Affairs19 Oct 2005
Technical Assistance & Information Exchange (Art.60-62)
Criminal JusticeAnd
Institution-Building
Technical Assistance and Exchange of Information
Training Programmes
Studies, Research and Evaluation
Assistance to Developing Countries and
Countries in Transition
Voluntary ContributionsUN Funding MechanismPercentage of Proceeds
of Crime
Division for Treaty Affairs19 Oct 2005
Mechanisms for Implementation (Art.63-64)
COSP to Address Criminalization of Passive Bribery of Officials of
International Organizations
25-27 Jan. 20068th Ad Hoc Committee
To Prepare Draft Rules of Procedure
Within 1 Year from Entry into ForceCOSP 1
•Promote, Facilitate and Review Implementation•Make recommendation•Facilitate Information Exchange
Entry into Force14 Dec 2005
Division for Treaty Affairs19 Oct 2005
Status of ratification, by region
12%12% 52%
21% 3%
AfricaAsiaEastern EuropeLatin America and CaribbeanWestern Europe and Other
Division for Treaty Affairs19 Oct 2005
For further information:
Division for Treaty Affairs
United Nations Office on Drugs and Crime
P.O.Box 500 Vienna
A-1400 Austria
Tel: +43-1-26060-4534
Fax: +43-1-26060-5841
http://www.unodc.org/unodc/en/crime_convention_corruption.html