United Nations Convention against Corruption

To help fight corruption and reduce its corrosive impact in a sustainable way, the first ever legally binding global instrument, the United Nations Convention against Corruption, has entered into force. The Convention, which was adopted by the United Nations General Assembly on October 2003 has been signed by 140 countries and entered into force after 38 ratifications on December 14, 2005. India signed the convention on December 9 in New York The Convention contains a wide range of provisions that will strengthen efforts internationally to fight corruption. The convention rests on four basic pillars: Prevention of corruption, law enforcement, international cooperation and asset-recovery. The tough new provisions on asset recovery come as a major breakthrough and will be of major assistance in preventing corruption

Highlights of the Convention:

• Preventive measures: It requires governments to adopt measures to prevent corruption both at the public as well as private sectors.  These include preventive policies and practices to combat corruption, such as the establishment of anti-corruption bodies, and enhanced transparency in the financing of election campaigns and political parties. The Convention says that each state party must endeavour to ensure that their public services adopt, maintain and strengthen systems that promote efficiency, transparency, and recruitment based on merit, equity and aptitude. Once recruited, the state parties should promote honesty, integrity and responsibility among the public officials and that they be subjected to codes of conduct, requirements for financial and other disclosures and appropriate disciplinary measures. Further in matters of public finance, transparency and accountability must be promoted in the adoption of the national budget and in reporting on revenue and expenditure. Necessary measures to be adopted in the critical areas of the public sector, such as the judiciary and public procurement to prevent corruption. Preventing public corruption also requires active participation of the individuals and groups from the society at large. Hence the Convention requires countries to promote actively the involvement of non-governmental and community-based organisations.

Criminalisation and law enforcement:  The Convention calls on countries to establish criminal and other offences to cover a wide range of acts of corruption. In some cases, states are legally obliged to establish offences; in other cases, in order to take into account differences in domestic law, they are required to consider doing so. The Convention criminalises basic forms of corruption such as bribing of their national and foreign public officials and officials of public international organisations. Along with this, other corruption-related crimes such as the embezzlement , misappropriation or other diversion of property by a public official, trading in influence and the concealment and "laundering" of the proceeds of corruption are included. Necessary measures should be taken to establish a criminal offence, when committed intentionally, the abuse of functions or position by public officials in the discharge of their functions to gain undue advantage for themselves or for another person or entity. Offences committed in support of corruption, including money-laundering and obstructing justice, are also dealt with. The Convention also requires that state parties should take necessary measures to prevent corruption in the private sector such as enhance accounting and auditing standards and provide effective, proportionate and dissuasive civil, administrative or criminal penalties for failure to comply with such measures. To combat bribery in the private sector the convention suggests that necessary measures be taken against any promise, offering or giving, directly or indirectly, of an undue advantage to any person who directs or works for a private sector entity for the person himself or herself or for another person. The convention calls for strict measures against the conversion or transfer of property which is from the proceeds of crime, for the purpose of concealing or disguising the illicit origin of the property or of helping any person who is involved in the commission of the predicate offence to evade the legal consequences of his or her action. The use of physical force, threats or intimidation or the promise, offering or giving of an undue advantage to induce false testimony or to interfere in the production of evidence in a proceeding will be dealt with strictly. State parties should endeavour to establish or maintain an appropriate balance between any immunities or jurisdictional privileges accorded to its public officials for the performance of their functions and the possibility of effectively investigating, prosecuting and adjudicating offences. Adequate measures necessary to provide effective protection from potential retaliation or intimidation for witnesses and experts who give testimony concerning offences for their relatives and other persons close to them should be taken as per the convention.

• Asset-recovery: In a major breakthrough, countries agreed on asset-recovery. The return of assets pursuant to this chapter is a fundamental principle of this Convention. Asset-recovery is a particularly impo-rtant issue for many developing countries, where high-level corruption has plundered the national wealth, and where resources are badly needed for reconstruction and the rehabilitation of societies under new governments. Several provisions specify cooperation and assistance will be rendered. In particular, in the case of misuse of public funds, the confiscated property would be returned to the state requesting it; in the case of proceeds of any other offence covered by the Convention, the property would be returned providing the proof of ownership or recognition of the damage caused to a requesting state; in all other cases, priority consideration would be given to the return of confiscated property to the requesting state, to the return of such property to the prior legitimate owners, or to compensation of the victims. Effective asset-recovery provisions will support the efforts of countries to redress the worst effects of corruption, while sending, at the same time, a message to corrupt officials that there will be no place to hide their illicit asset.
• International cooperation: Countries agreed to cooperate with one another in every aspect of the fight against corruption, including prevention, investigation, and the prosecution of offenders. Intern-ational cooperation in the Convention provides a practical channel for the governments to work together to extradite persons and exchange evidence regarding corruption offences. In matters of international cooperation, whenever dual criminality is considered a requirement, it shall be deemed fulfilled irrespective of whether the laws of the requested state party place the offence within the same category of offence or denominate the offence by the same terminology as the requesting state party. Countries are bound by the Convention to render specific forms of mutual legal assistance in gathering and transferring evidence for use in court, to extradite offenders. States parties should enter into bilateral or multilateral arrangements on the transfer to their territory of persons sentenced to imprisonment or other forms of deprivation of liberty for offences established in order that they may complete their sentences there. In order to combat corruption effectively, countries should take such measures as may be necessary to allow for the appropriate use by its competent authorities of controlled delivery and other special investigative techniques, such as electronic or other forms of surveillance and undercover operations. Countries are also required to undertake measures that will support the tracing, freezing, seizure and confiscation of the proceeds of corruption.
• Mechanisms for implementation: The implementation mechanisms for governments monitor implementation of the Convention and to share expertise and provide technical assistance relating to anticorruption efforts. The adoption of the Convention by the General Assembly in the times to come will be followed by a period in which countries will develop necessary measures both legislative and administrative and ratify the Convention.  A Conference of the States' Parties is established to improve the capacity of and cooperation between state parties to achieve the objectives set forth in this convention. The Conference will meet regularly and serve as a forum for reviewing the implementation by states' parties and facilitating activities required by the Convention. The secretary-general of the United Nations will provide the necessary secretariat services to the Conference.