course corruption.docx

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Course corporation

1/ what is corruption ?

2/ why we need to fight corruption ?

3/ how we can fight corruption ?

4/ what are the international instruments to fight corruption ?5/ what are the national instruments to fight corruption ?

Whats 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 : its 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

Embezzlemlmentits outright thef of entrusted funds

Kickbacks: it s an officials share of misappropriated funds allocated from his or her

organization to an organization involved in corrupt biddingUnholy 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 self-enrichment


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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 peoplek.Inadequate wage envelope

Consquences of corruption The menace of corruption has links to a multitude ofvices. 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 ?

I ntroductionCorruption 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 empiricalinvestigations.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 fightingcorruption (I) then, on highlighting its hazards and risks, secondly (II).


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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 cleardichotomy 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


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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 aglobal 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 inthe 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

nations economy and some have even claimed that it can be good for development.

However it properly doesnt 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


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some of the restrictions created by bad rules becomes a second best solution and an

alternative path to growth. Thanks to corruption, most of the illegal activities that happen in

Malaysia,for instance, are allowed to go on scot-free, without the criminals arrested. Thanks

to corruption which are done by enforcement officers who are mostly Melayu that has

allowed those illegal activities to carry on. And it is also an open secret how many of theillegal business operators had cleaned their ill gotten wealth by going into proper business

by opening supermarkets or other establishments which act as fronts to cleanup more ill

gotten wealth.

Where did the money for the money lending operations come from, 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. But they are done in collusion with some enterprising Chinese

businessmen who wanted to expand their businesses or to get the necessary licenses,

permits or projects which they could not get on their own, knowing how the system inMalaysia works that often requires patronage. And the Melayu can provide them this. 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. But the Melayu who are corrupt

and who are involved in large scale corruption do so with the collusion of the Chinese

businessmen.The Melayu and the Chinese can stop it. But they do not want to do it because

they lose either way. So they need each other. Still corruption is a necessary evil for both

parties; 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 involving the Chinese and Melayu started long ago when the Chinese first landed

in Tanah Melayu.

With corruption they were able to get land and other properties to start their small

businesses. And with corruption they were able to get permits to operate stores and sell

things. according to some thinkers, without corruption the economy of the Chinese could

not grow. It was an invention created and brought into the country by the Chinese

immigrants.

The Indians who were not so good in this business are left behind. They affirm that if the

Indians were good in corruption as much as the Chinese, they can become wealthy now

instead of being stuck in poverty.

But, logically, does corruption prevent people from poverty ?! Or, on the contrary,

corruption causes poverty and other dangerous effects ? If So, doesnt this call to seriously

get involved in fighting corruption ?

2- Hazards and risks of corruption :a- Multiple dimensions of corruption harmful effects

Corruption in all its manifestations is a dehumanising evil force, an unnecessary evil that

must be fought with all the energy that we can muster. It is one of the main obstacles to

sustainable economic, political and social development, for developing, emerging anddeveloped economies alike. Overall, corruption reduces efficiency and increases inequality.


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Estimates show that the cost of corruption equals more than 5% of global GDP (US$ 2.6

trillion, WorldEconomic Forum) with over US$ 1 trillion paid in bribes each year (World

Bank). It is not only a question of ethics; we simply cannot afford such waste. De facto,The

effect of corruption can not be overemphasized, It has many dimensions related to

economic, political, social and environmental effects. The economic effects of corruptioncan be categorized as minor and major. However, both in one way or the other have serious

impact on the individual community and country. First and foremost, corruption leads to the

depletion of national wealth. It is often responsible for increased costs of goods and services,

the funneling of scarce public resources to uneconomic high profile projects at the expense

of the much needed projects such as schools, hospitals and roads, or the supply of potable

water, diversion and misallocation of resources, conversion of public wealth to private and

personal property, inflation, imbalanced economic development, weakling work ethics and

professionalism, hindrance of the development of fair in market structures and unhealthy

competition there by deterring competition. Large scale corruption hurts the economy andimpoverishes entire population.In political sphere, corruption impedes democracy and the

rule of law. In a democratic system, public institutions and offices may lose their legitimacy

when they misuse their power for private interest. Corruption may also result in negative

consequences such as encoring cynicism and reducing interest of political participation,

political instability, reducing political competition, reducing the transparency of political

decision making, distorting political development and sustaining political activity based on

patronage, clientelism and money, etc.In other societies, the impact of corruption is often

manifested through political intolerance, problems of accountability and transparency to the

public, low level of democratic culture, principles of consultation and participation dialogue

among others.In Social sphere, corruption discourages people to work together for the

common good. Frustration and general apathy among the public result in a weak civil

society. Demanding and paying bribes becomes the tradition. It also results in social

inequality and widened gap between the rich and poor, civil strive, increased poverty and

lack of basic needs like food, water and drugs, jealousy and hatred and insecurity.Closer

home, 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, reducing

productivity, hindering development, worsening poverty, marginalizing the poor, creating

social unrest and then to their downfall.

b- The Tunisian example : fight against corruption programs after the down fall of past

corrupted regime.

Corruption was and still be a problem that is at once both political and economic. The lack

of transparency and accountability that characterized Tunisia's political system similarly

plague the economy, damaging the investment climate and fueling a culture of corruption.

Even for all the talk of a Tunisian economic miracle and all the positive statistics before the

revolution, the fact that Tunisia's own investors are steering clear speaks volumes.Corruption was the elephant in the room ; it was the problem everyone knows about, but


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no one could publicly acknowledge.The Tunisian government had not made efforts to apply

the rules on public officials regarding the announcement of the property, conflicts of interest

and rules of conduct. There was no legal provision for the protection of whistleblowers in

the public sector (it exists in the private sector however, the implementation is still weak). As

a result, many of the whistleblowers, anti-corruption activists, and investigators do not feelsafe when reporting on cases of corruption and bribery. More than that, despite the

existence of transparent rules of tendering procedures, it failed,so far, in creating barriers

enough to combat corruption in public procurement.Since the revolution, there has been an

increasing popular demand on empowering transparency and accountability, participation

and fighting corruption that are essential components of democratic governance. In

response to the increasing demand on anti-corruption assistance in Tunisia, 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, and advise on concrete

measures to combat corruption.

-Proposal by the Constituent Assembly in December 2012 of a national project to combat

corruption, 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.

-In late 2012, the government issued an electronic portal for anti-corruption portal titled

National Anti-Corruption, a result of the existing partnership between the government, civil

society and the United Nations Development Programme in Tunisia in order to promote

integrity in the country. Etc

But, do these efforts reach the aspirations and achieve the ambitions of Tunisian people ?

If not, 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. It depends on both the political will and financial resources.Here

are five strategic priorities that TRANSPARENCY INTERNATIONAL have identified to fight

corruption :

People: Increased empowerment of people and partners around the world to takeaction against corruption. The challenge is to engage with people more widely thanever before for ultimately, only people can stop corruption.

Institutions: Improved implementation of anti-corruption programmes in leadinginstitutions, businesses and the international financial system. The challenge is to

ensure that commitments to stop corruption are translated into actions,

enforcement and results.

Laws: More effective enforcement of laws and standards around the world andreduced impunity for corrupt acts. The challenge is enforcing fair legal frameworks,

ensuring there is no impunity for corruption.


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Values: Higher levels of integrity demonstrated by organisations and people,especially youth and those in leadership positions around the world. The challenge

is to secure greater commitment to integrity by both current and future generations

in all aspects of public and business life.

Network: Strengthened ability to work together. We seek to expand the knowledgebase of our diverse Movement, so that we can promote ever more effective anti-

corruption solutions which have a real impact on peoples lives.

how we can fight corruption ?

IntroductionThe discussion on corruption is almost as old as government, though only in

the last two decades has it been a high political priority. This new urgency in discussing

the full range and variety of corrupt practices, their causes and impact, stems from the

increased pressure to introduce transparency and accountability criteria in development

aid packages and mechanisms aimed at assisting developing countries, in addition to the

tasks of overcoming criminal behaviors and risks in the transition of the countries. Good

governance and anti-corruption became key concepts in the way both the international

financial institutions and Western governments approached Third-World and post-

Communist transition reforms and policies.By the same token, increased importance was

given to countering graft in developed countries, some of which have a long tradition of

tolerating and downplaying the risks of corrupt behavior of public officials. Following the

introduction of the US Government transparency and integrity standards and anti-

corruption strategies in the 1990s, good government/integrity reforms dominated the

public policies discourse at a global level. Accordingly, corruption became the subject of

extensive theorizing and substantial empirical research, which produced a vast array of

approaches, explanations, typologies and prescriptions. This emphasis is likely to continue

in the wake of the popular revolutions and protests in North Africa and the Middle East,

which underlined the perverse linkages between authoritarian politics and corrupt

practices.Furthermore, the looming threats from organized crime using corruption

instruments in some candidate countries stressed the urgency to counter what was

termed state capture, i.e. the organized crime/corrupt officials associations and

interactions aimed at circumventing democratic checks and balances and fair competitionrules. Similarly, anti-corruption institutions scanning and monitoring became an

important part of the efforts to identify the weak link in the public domain, usually

targeted by criminals.International organisations also agreed to give additional

importance to anticorruption strategies, tools and activities. The OECD (Organisation for

Economic Co-operation and Development) adopted a Convention on Combating Bribery

of Foreign Public Officials in International Business Transactions, which came into force in

1999; two years later the Council of Europe introduced the Criminal Convention on

Corruption and the Group of States against Corruption (GRECO) Review Mechanism, while

in 2003 the United Nations (UN) General Assembly adopted its UN Convention againstCorruption (UNCAC). The EU initiatives against corruption have been in comparison rather


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limited due to the fact that corruption has been considered a domestic issue (third

pillar). With the coming into force of the Lisbon Treaty in 2009, the anti-corruption role

of the EU laid out in the Stockholm Programme has been re-energised, and in 2011 the EC

presented an anti-corruption package that laid out its vision for future anticorruption

initiatives. Corruption was also recognized in the EUs Internal Security Strategy (ISS) as anissue that undermines the foundations of democratic states.Corruption means different

things to different people and aggregate definitions are moulded by cultural factors. Thus

there can be no universal definition of this phenomenon. Rather, both international

organisations and national jurisdictions develop their own definitions of corruption. In the

current academic and political discussions, corruption is a broad term used to describe a

wide spectrum of behaviors, ranging from criminal offences, the giving or receiving of a

bribe, to concepts of good governance related to inefficiencies in public service delivery.

Its most popular definition is the misuse of public office for private gain. Another

definition, coined by Transparency International, a specialised anticorruptioninternational NGO, which encompasses corruption in the private sector is the misuse of

entrusted power for private gain. The 2005 UN Convention against Corruption describes

corruption as: The promise, offering or giving to *or the solicitation or acceptance by+ a

public official, directly or indirectly, of an undue advantage, for the official himself or

herself or another person or entity, in order that the official act or refrain from acting in

the exercise of his or her official duties. Similarly, the Council of Europe defines

corruption as : requesting, offering, giving or accepting, directly or indirectly, a bribe or

any other undue advantage or prospect thereof, which distorts the proper performance

of any duty or behavior required of the recipient of the bribe, the undue advantage or

prospect thereof. Slightly broader definitions of corruption have been offered by Nye,

who speaks of corruption as the abuse of public power not solely for private profit or

wealth but also for status gains (Nye 1967, pp. 417-427), and Khan (1996) who defines

corruption as the misuse of public power for motives such as wealth, power, or status.

Spencerat al. describe corruption as many kinds of irregular influence, the objective of

which is to allow the participants to make profits they are not entitled to, the method

being the breaking of internal or external rules (Spencer et al. 2006). The term

corruption involves diverse processes which have differ-Transparency International

(2010): Corruption Perception Index report UNODC, United Nations Convention against

Corruption, New York, 2004. 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.

2006, p. 7):

systemic, when corruption is incorporated within the entire or particular sections(e.g. border control) of the rule of law system (multiple institutions: judiciary,

police, customs, tax, etc.);

institutional, where the institution affected is tolerant of corrupt practices; and


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individual, where the person is prepared to undertake illegal actions because theiremployment provides them with an opportunity to exploit their position for gain.

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). A frequently identified form of

grand corruption is political corruption: the abuse of entrusted power by political

leaders for private gain (TI, Global Corruption Report 2004, pp. 1, 21). Another form of

grand corruption, described as state capture, permits entrenched economic actors (e.g.

oligarchs/ tycoons in Eastern or Southern Europe) to manipulate policy formation and

even shape legislation to their own advantage (Hellman and Kaufmann 2001).Another

differentiation is between active and passive bribery. Active bribery refers to the

offence committed by the person who promises or gives the bribe. Passive bribery is the

offence committed by the official who requests or receives the bribe. The asking of a

bribe by an official is often also defined as a form of extortion/racketeering.In the early

days of corruption research, corruption was interpreted as a normative concept

constituting an immoral act (Banfield 1958; Myrdal 1968; Wraith and Simpkins 1963).

However, 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). They

highlighted the beneficial roles of corruption as an exchange mechanism of political

action for economic wealth and political stability (Huntington 1968); a means to integrateelite and non-elite members (Nye 1967), and as a means of creating trust in new

institutions during transitions (Bayley 1966). Nowadays, most definitions and scholarly

understanding of corruption focus on the negative rather than the functionalist aspects. It

should be noted that systemic and institutional corruption may both have normative

levels.It must be understood that because exact definitions of corruption differ quite

markedly between different jurisdictions, and many institutions now operate on a global

basis, there is a grey area for multi-national institutions. A transaction that is considered

corrupt in one state could take place in another, where it is not illegal. The US Foreign

Corrupt Practices act is one possible approach to deal with the problem: US companiesare held liable and could be prosecuted in the United States if they engage in bribery

outside the US.As a political economy category, corruption should not be overstretched

to include all forms of either misuse of political power (undemocratic or authoritarian

rule), or other types of crime like embezzlement, theft, fraud and extortion.Recent

studies (CSD 2010) show that criminal structures target vulnerable public

institutions/sectors and actors using appropriate corruption tools and mechanisms.

Criminal collusion transforms corrupted public officials into associates of criminal

networks in their illegal enterprises.


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The implementation of coordinated and efficient policies against corruption; and the

creation or support of institutions charged with preventing corruption.

The promotion of ethical values, such as integrity, honesty and transparency, in both

the public and private sectors by establishing and observing codes of conduct.

The involvement of society in government decision-making and the promotion of

accountability.

Access to public information and the simplification of government procedures.

The establishment of systems for public procurement and administration of public

property to increase institutional transparency.

The removal of public servants privileges and immunities that can serve as a

mechanism for impunity.

The implementation of transparent systems of recruitment, career development and

tenure of public servants based on merit, equity and aptitude.

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.In recent years, corruption has taken on new forms; and with

globalization it has become a serious problem for the international community. Its

consequences are well known to all of us: it affects society as a whole; undermines the

rule of law; causes people to lose confidence in their own governments and institutions;

reduces investment and slows economic growth; and repels foreign investment and

diverts public funds against citizens interests. All of us have suffered its effects.

Corruption is a global phenomenon that has historically had strong roots in every culture

in the world. It is the worst threat to the just development of our people because it alters

the patterns of social coexistence. That is why it has been a central theme in several

conferences, events and Conventions, which were promoted by supreme audit

institutions, with the purpose of designing instruments to combat corruption and to save

the resources and properties of the State. Therefore, we thank the representatives of the

Government of Mexico and the United Nations, the organizers of this event, for the

opportunity to share experiences, identify new problems and challenges, raise awareness,

develop new cooperation strategies and discuss the consequences for our actions aimed

at preventing and eradicating corruption. In that sense, if supreme audit institutions are

to be effective, it is essential that the system of government authority is balanced and

promotes sound financial management that helps in economic, social and ethical

progress. 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. Those practices should promote domestic andinternational collaboration and cooperation to effectively integrate the various actions


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required in the global fight against corruption. In conclusion, administrative corruption

has become a serious concern to those charged with the responsibility to fight and

eradicate it. There have been many proposals to combat corruption, that is, practices

which go against the interests of healthy and transparent public management. An action

plan that attempts to set control milestones in the fight against corruption and to fortifydemocracy would need to rest on the following fundamental pillars.

1.1 Independence of auditing functions

To fight corruption, we need an auditing mechanism whose pillars should be impartiality

and overall autonomy and independence: Such principles, that have also been named the

Magna Charta of Supreme Auditing, were enshrined by the Supreme Audit Institutions

(Intosai) in the Declaration of Lima on Basic Guidelines for Auditing, adopted by the IX

International Congress of Supreme Audit Institutions in Lima in 1977. In that Declaration,

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. In the same way, the Declaration provides that supreme audit

institutions should enjoy functional and organizational independence, a necessary

condition to fulfil their mandate, and that the level of independence must be protected

by the Constitution. It is no surprise that the topic of the independence of supreme audit

institutions is a consistent theme in Intosai. However, the Declaration has not been

adopted just because we need to attain and retain independence, but also because we

need such independence to be provided by law. In that regard, I would like to recall that

in December 1999, the people of Venezuela, for the first time in its history as a republic,

passed by direct vote a new Constitution of the Bolivarian Republic of Venezuela. That

Constitution was a conceptual and historic break with the countrys former complex

administrative system, which was an obstacle to rapid and effective policy

implementation. The new Constitution reorganized the powers and the fundamental

institutions of the democratic framework. In other words, we have broken with the classic

pattern of the modern State and, in addition to the legislature, the judiciary and the

executive, we have added the State authority and the electoral power as self-standing

branches of government. The State authority, which is constituted by the Parliamentary

Commissioner for Administration, the Crown Prosecution Service and the Auditor-General

of the Republic, is monitored by the Republican Moral Council formed by the

Ombudsman, the Solicitor-General and the Auditor General. The new Constitution

established the Auditor General of Venezuela as a body of the State authority, which is

based on the historic idea of the Moral Power, formulated by the Liberator, Simn

Bolvar. In that reorganization and re-institutionalization of the Republic, 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. The controlling body has total independence: functional, administrativeand organizational autonomy and the power to adopt regulations defining its structure


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and functions. 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.

1.2 Citizen participation and the promotion of transparencyCitizen participation is a basis for the fight against corruption. Thanks to that mechanism,

society is able to monitor the activities of public entities with regard to the mandates they

have been given, including the use of public resources for the purpose of social

development. Among the greatest challenges facing supreme audit institutions is the

peoples need, indeed their lawful right, to greater scrutiny of the public entities that

generate goods and services, which are meant to improve the quality of life, their interest

in effective accountability, and efficient actions that reduce and prevent corruption and

fraud. Citizen participation is a process by which citizens are involved in decision-making,

supervision, control and execution of government actions affecting public and private

businesses, with the purpose of attaining their full potential for the benefit of the

environment in which they operate. Citizen participation is the exercise of the citizens

right to participate in and interact with the State. It is understood as a right of people,

whether individual or organized, to have an impact on the decision-making processes in

every sphere of social life. Therefore, 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, as well as with other relevant organizations active in anti-corruption.

Similarly, they have promoted the development of a philosophy of anticorruption control,

through civil education and by introducing mechanisms to guarantee transparency of

public administration. In that way, supreme audit institutions have designed ways to keep

citizens informed about their activities and the importance of their decisions.

1.3 Co-responsibilityFor the fight against corruption, we need a plan of action that creates the legal platform

providing for transparency in public administration, coordination among bodies of

internal and external control, as well as for the participation of the various stakeholders in

both the public and private spheres. The fight against corruption is of a strategic nature

and its results will depend on the establishment of a more democratic and productive

society, which is politically stable and socially balanced, where citizens have confidence in

their institutions. The fight against corruption, however, 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, internal as well as external, working together in the implementation ofpolicies and strategies to fight and prevent corruption.


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A judiciary active in the prevention and punishment of corruption. Without just,

appropriate and exemplary sanctions against those involved in corruption, it will be very

difficult to eradicate it. An honest and transparent judiciary that penalizes corrupt

persons and has the means to provide an appropriate and effective answer is essential.

Our aim has to be to eliminate impunity, not only through appropriate sanctions for thecorrupt, whether public or private representatives, but also through the recovery of the

proceeds of corruption. That will assist in the development of an effective and modern

control system that discourages corrupt behaviors.

Educational, religious and cultural institutions, as well as the media, should be involved

in the promotion of values such as transparency and integrity and the reporting of

corruption.

Corruption is a phenomenon that equally concerns the private sector, which is not only

often involved in corruption, but also promotes it through bribery. In that context, the

financial aspect is of special importance. Bankers must therefore know their clients and

the origin of their assets. Every citizen has to have access to the necessary information in

order to be able to evaluate the institutions. Citizen participation in topics that are of

public interest constitutes an essential condition for the promotion of transparency.

Therefore, 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. All

of us, to a greater or lesser extent, share responsibility in the fight against this challenge

that affects our societies.

An efficient and modern control system that discourages corrupt acts must be urgently

developed. It must be supported by an effective legal and regulatory framework. In the

globalized world in which we live, such a system has to interact through cooperation and

mutual assistance among national institutions, such as the Court of Justice, the

Department of Public Prosecution, supreme audit institutions and other governmental

and nongovernmental bodies, 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, which has been called the social AIDS. The corruption

problems that our nations face today cannot be fought by Governments alone. Such

problems call for the involvement of the private sector, civil organizations and non-

governmental organizations. Until now, such cooperation and coordination have been

insufficient. Therefore, all sectors need to join efforts, at the national and international

levels, in order to promote:

A better understanding of the problem, as well as of the institutions that fight it, and

enhanced exchange of information.

Awareness of the gravity of the phenomenon and a better understanding of the

existing legal instruments to fight it, this Convention being one of them.


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Mutual technical assistance, better institutional coordination and a solid and

internationally focused approach to the problem.

The establishment of practical measures for the implementation of Member States

strategies in the fight against corruption.

The development of judicial systems that are honest and transparent and that

effectively punish corrupt people;

Leaders from all spheres of life who are honest, professional and upright and who set

an example through their behavior and provide new role models, new behavioral

standards and new ways of social interaction.

1.4 Proposals

Measures and proposals that can be used, especially with regard to corruptionprevention, include:

Establishing an international register of enterprises that were involved in corruption.

Creating an international alert register of enterprises operating out of countries

qualified as tax havens, in order to facilitate inspections of the ways in which they control

and regulate their financial transactions.

Creating a fund for the promotion of ethical values in the fight against corruption. We

have to promote ethical values such as honesty, integrity and truthfulness in theeducational and cultural spheres.

Endorsing multilateral agreements that provide for the repatriation of the proceeds of

public and private sector corruption.

Establishing multilateral extradition agreements applicable to public and private sector

corruption.

Finally, corruption is a problem that hurts all peoples of the world, as long as it continues

to steal the resources that should be used to fulfil the needs of societies and increase thequality of life. That is why the legislation of Venezuela describes it as the crime of the

offended country. I would add of the offended humanity. For us, it is an act of

terrorism. Yes, a social terror leading to poverty, hunger and death.

2. CURATIVES MEASURES2.1 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, changes may bemade to expedite the gathering and production of the evidence needed for prosecutors


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to meet that burden. Legislation may increase investigative powers or simplify the

requirements for admission of evidence in proceedings. Increasingly, the law must deal

with evidence stored or transmitted using electronic information and communications

technologies, as well as more traditional issues, such as bank secrecy and similar laws or

practices. Generally, powers whose exercise is based on suspicions of crime having takenplace or are used in support of a criminal investigation are subject to additional

safeguards, 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. These

may be supplemented by criminal offences for conduct such as making false disclosures

or obstructing inspections or audits such that corrupt officials, who fail to comply with

transparency requirements that would expose corrupt conduct, may be prosecuted for

the disclosure offences instead.

The basic presumption of innocence and the high onus of proving guilt beyond a

reasonable doubt applies only in criminal cases. 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, there are variations with respect to how this should be

interpreted. The narrow interpretation is that the presumption would not apply in

proceedings prior to the laying of charges, and would not apply to cases where there

were no charges or prosecution, even if criminal or quasi-criminal punishments, such as

the confiscation of property, might be applied. The broader interpretation would extend

the presumption to all procedures or proceedings, which might lead to criminal or quasi-criminal sanctions, including both of these scenarios. Thus, in some countries, it may be

possible to use non-criminal proceedings, and a lower burden of proof, than in others.

Some types of these non-criminal proceedings include the following.

2.1.1 Civil or preventive forfeiture of corruption proceeds

A lower, balance-of-probabilities standard of proof may be used where allowed by

domestic constitutional or other requirements in any case where remedies are beingsought but where no one has been actually charged with the commission of a crime. 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, as opposed to a form of criminal punishment. Precisely how this

distinction is made will generally depend on the formulation of domestic human rights

and procedural principles, and how officials and the courts apply these in practice. The

use of civil or preventive proceedings is also a significant issue in international

cooperation, as some countries allow the broad use of such proceedings and remedies,

while others limit their use in order to ensure that they are not used to circumvent oravoid the human rights safeguards which apply to criminal proceedings. Countries such as


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Italy 20, Ireland 21 and the United States provide, under varying conditions, for the

possibility of civil or preventive confiscation of assets suspected to be derived from

certain criminal activity. Unlike confiscation in criminal proceedings, such forfeiture laws

do not require proof of illicit origin "beyond reasonable doubt". Instead, they consider

proof on a balance of probabilities or demand a high probability of illicit origin combinedwith the inability of the owner to prove the contrary. In one case, 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.23

Based on three criteria for determining the criminal nature of a provision, namely the

classification of the proceedings under national law, their essential nature, and the type

and severity of the penalty, the Commission concluded that the confiscation, which is

classified as preventive measure, did not have the degree of severity of a criminal

sanction. The Commission assigned particular relevance to the fact that (i) the

confiscation did not imply a judgment of guilt, but rather that of the social danger of therespondent, based on the well-founded suspicion of his participation in a Mafia-type

organization and (ii) it was applied only to such properties, that on a balance of

probabilities had been found to derive from illicit sources.

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. Seizure can be

ordered without prior conviction or proof of criminal activity on the part of the (civil)

respondent, who, to defeat the claim, is required to establish the innocent origins of his

suspicious and hitherto unexplained wealth. The US Forfeiture Laws introduced theconcept of "civil action" against the property itself, which allows for proofing the illicit

origin on a balance of probabilities. European Human Rights Commission, No. 12386/

1986 With regard to the property right as provided by Art. 1 Protocol No. 1 to the

European Human Rights Convention, the European Human Rights Court affirmed the

proportionality of the preventive confiscation as an instrument in the fight against the

Mafia.

2.1.2 The use of regulatory, 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, and which are

often limited in their application to specific categories of natural or legal persons. Where

private-sector bribery is not made a crime, for example, 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. Regulations or

standards of practice for public servants or regulated professions, such as law, might also

include offences and sanctions for corrupt conduct which could lead to professional


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discipline, discharge or removal of practicing privileges, again proved on the balance of

probabilities.

2.1.3 The use of a reduced burden of proof in specific elements of criminal proceedings

In some legal systems, after the basic legal burden of proof has been discharged, certainfacts may be presumed to the advantage of the State.

a. Criminal forfeiture of assets on a reduced burden of proof

One example, which commonly arises allows the proceeds of crime to be traced, seized

and forfeited based on a reduced standard of proof, once someone has been convicted of

a crime. Where provided by law, such mechanisms may be useful for recovering the

proceeds of corruption, but they usually cannot be used to establish criminal guilt or

impose sanctions other than the recovery of proceeds. The most common scenario is

where the crime is proved in proceedings which lead to the conviction of offenders. In

cases where the offenders are deceased, out of the jurisdiction or cannot be prosecuted

for other reasons, some countries laws allow for confiscation, without any prosecution,

where there is proof that an offence has occurred and that the targeted assets are

proceeds While the formulation of such provisions differ, 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. 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, property or other pecuniary

resources which appear to be out of all proportions when compared to his income. Only

at this stage the offender is requested to provide an explanation, which, if satisfactory,

places the burden of proof once again upon the prosecution. 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.

As far as courts have been called upon to review such provisions, they have found them in

consistency with the presumption of innocence. For example, the European Court for

Human Rights examined the consistency of a confiscation under UK Drug legislation with

Art. 6 para 2 European Human Rights Convention.30 The key question for the court

regarding the applicability of Art. 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. 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, it affirmed that the application of confiscation under

the UK Drug Trafficking Act 1994 did not involve any new charge, since the purpose of this

procedure was not the conviction or acquittal of the applicant. Hence it could not be


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concluded that the applicant was being charged with a criminal offence beyond the one

of which he had already been found guilty.

b. Criminal offences in which some elements are presumed against the accused

A second common example is the establishment of criminal offences in which, once someelements are proven, others may be presumed against the accused in the absence of

proof to the contrary. The most common use of such measures in anticorruption

legislation is the creation of the offence of illicit enrichment. 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. 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). In systems where asset-disclosure is mandatory, for

example, 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.

Such provisions are unquestionably effective, 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, but in some countries they are thought to infringe the right to remain

silent. 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.

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. 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. The other line of approach holds that,

once the basic core elements of an offence have been proved beyond a reasonable

doubt, this effectively raises an evidentiary burden to rebut prosecution evidence and toprove additional facts against the prosecution. In this model, once it is proved that the

accused public official has wealth, 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, and not illicit, sources.

In some cases, 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. If there is some factual link such that,

once the prosecutions case is proved, there is little or no rational explanation other than

the guilt of the accused, the presumption is more than likely to be upheld. In the case of


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illicit enrichment offences, 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.

There can be no doubt that the offence of illicit enrichment can be a valuable tool in

fighting corruption. 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, the assumption would be that the officers

have enriched themselves illicitly, unless they can show that they have won a lottery or

perhaps inherited wealth from a rich relation.

2.2 International judicial cooperation

It is now widely accepted that measures to address corruption must go beyond domestic

criminal justice systems. In a modern world, no country is an island in the sense that itcan quarantine itself from the impact of events elsewhere. Corruption is no exception,

and its links to international organised crime, drug trafficking and terrorism is plainly

recognised.

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. This has

progressed from general consideration and declarative statements; to the formulation of

practical advice; to the development of binding legal obligations; and now to the

emergence of numerous cases in which one country has sought the assistance of another,

not only in the investigation and prosecution of corruption cases but also in the pursuit of

their illicit proceeds.

This understanding has also progressed from relatively narrowly-focused measures

directed at specific crimes (such as bribery) to more broadly-focused measures against it;

from regional instruments developed by groups of relatively like-minded countries (such

as the Organisation of American States, the African Union, the OECD, and the Council of

Europe), to the globally-based United Nations Convention Against Corruption. Actions on

specific issues within specific regions have become more general in order to deal with theproblem more effectively.

2.2.1 The United Nations convention against corruption of 2003

Concern about corruption as an international problem has increased greatly in recent

years. The most dramatic development has been the signing in December 2003 of the

United Nations Convention Against Corruption in Mrida, Mexico. The Convention will

enter into force when it has been ratified by 30 countries.

The Convention represents a major step forward in the global fight against corruption,and in particular in the efforts of UN Member States to develop a common approach to


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both domestic efforts and international cooperation. The Convention can be seen as the

product of a series of both procedural and substantive developments. In formulating the

terms of reference for the negotiation of the Convention, 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 ofcorruption as possible), and multidisciplinary (in the sense that it should contain the

broadest possible range of measures for countering corruption). The Group began the

development of a broad inventory of specific forms of corruption, including areas such as

trading in official influence, general abuses of power, 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 Expert Group called for the creation of specific

criminal offences and for the provision of fresh investigative and prosecutorial powers.

All of these basic elements appear in some form in the final Convention, with criminal

offences specifically tailored to corruption. To go beyond the scope of the Convention

against Transnational Organized Crime, a series of specific preventive anti-corruption

measures were added, both to promote transparency and high standards of conduct

(particularly in the public service) and to provide approaches for preventing corruption

from taking place. A further significant development was the inclusion of a specific

Chapter dealing with the recovery of assets, a major concern for countries pursuing the

assets hidden abroad by former leaders and senior officials found to have engaged in

corruption.

2.2.2 The United Nnations convention against transnational organized crime of 2000

The United Nations Convention Against Transnational Organized Crime, adopted by the

UN Millennium General Assembly in November 2000, is focused on the activities of

organized criminal groups. It does, however, recognize that, in many cases, corruption is

both an instrument and an effect of organized criminal activity, and that a significant

portion of the corruption associated with organized crime is sufficiently transnational innature to warrant the development of several provisions in the Convention. The

Convention is a binding international legal instrument, although the degree to which

each individual provision is binding depends on the particular wording used. It is presently

open for signature and ratification, and may achieve the necessary number of

ratifications, to come into force during 2002 or 2003.

The Convention establishes four specific crimes to combat activities commonly used in

support of transnational organized crime activities: participation in organised criminal

groups, money-laundering, corruption and obstruction of justice. States Parties are

required to criminalize those activities, as well as to adopt legislation and administrative


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systems to provide for extradition, mutual legal assistance, investigative cooperation,

preventive and other measures, as necessary, to bring existing powers and provisions up

to the standards set by the Convention. In addition to establishing a corruption offence

(Article 8), the instrument also requires the adoption of measures to prevent and combat

corruption (Article 9).

The criminalization requirements include central provisions that are binding on States

Parties, and supplementary provisions that are discretionary. The mandatory corruption

offences capture both active and passive corruption: "the promise, offering or giving"

as well as "the solicitation or acceptance" of any "undue advantage". In both offences,

there must be:

(i) a "public official" and100

(ii) the advantage conferred must be linked in some way to his or her acting corruptly, orrefraining from acting, in the course of official duties, 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. As well as the mandatory offences, States Parties are also required to consider

criminalizing the same conduct where the person promising, offering or giving the benefit

is in one country and the public official who requests or accepts it is in another. States

Parties are also required to consider criminalizing other forms of corruption. 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, the Convention offence relating

to the obstruction of justice would also usually apply.

In addition to criminalization requirements, the Convention also requires the adoption of

additional measures against corruption. The text calls for "legislative, administrative or

other effective measures to promote integrity and to prevent, detect and punish the

corruption of public officials. It does not specify details of the measures to be adopted,

but requires steps to ensure that officials take effective action, including granting

appropriate authorities sufficient independence to protect them against inappropriateinfluences.

Other Convention provisions may also prove useful in specific corruption cases, notably

the Articles establishing the money laundering offence and providing for the tracing,

seizure and forfeiture of the proceeds of crime. The Convention requires States Parties to

adopt, to the greatest extent possible within their domestic legal systems, provisions to

enable the confiscation of any proceeds derived from offences under the Convention and

any other property used in, or destined for use in, an offence under the Convention.


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Courts or other competent authorities must have powers to order disclosure or seizure of

bank, financial or commercial records to assist in asset tracing. 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. Once proceeds or other property have been

confiscated, they can be disposed of in accordance with the domestic laws of theconfiscating State, 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.

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". 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.

Where these requirements are met, a wide range of assistance and cooperation

provisions apply as between States Parties to the Convention to assist in investigations

and, ultimately, to help secure the extradition or prosecution of offenders.

2.2.3 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. As of early 2004, some thirty-five countries had ratified the Convention.

Given the role of the private sector in international corruption and its impact on

development in the developing world, the Convention is of considerable significance. As

its name implies, the OECD Convention is relatively narrow in its scope. The sole focus is

to use domestic law in exporting countries to criminalize the bribery of foreign public

officials. It applies both to active and passive bribery but does not apply to forms of

corruption other than bribery, i.e. to bribery that is purely domestic or to bribery in which

the direct, indirect or intended recipient of the benefit is not a public official. Nor does it

apply to illicit political donations (arguably the largest loophole in the Conventions

framework). Excluded, too, 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.

The obligation to criminalize includes any case where the offender offers, 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, if the purpose was to obtain or retain some business or improper advantage

in the conduct of international business. States Parties are required to ensure that

incitement, aiding and abetting or authorizing bribery is also criminalized, which meansthat lawyers and accountants who knowingly provide professional services in support of


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such bribery are also liable to prosecution. The offences in the OECD Convention must

also apply to corporations and other legal persons, in addition to individuals. Attempts at

bribery and conspiracies to bribe, which pose a problem for some legal systems, must be

criminalized if the equivalent conduct of bribing a domestic public official is criminalized.

Prosecutorial discretion is recognized, but the Convention requires that it should beexercised on the basis of professional rather than political criteria.

Punishments must be "effective, proportionate and dissuasive", and of sufficient

seriousness to trigger the application of domestic laws governing mutual legal assistance

and extradition. Any proceeds, or property of equivalent value, must be either the subject

of powers of seizure and forfeiture or the imposition of equivalent monetary sanctions.

Bribing foreign public officials must also trigger national money-laundering laws to the

same extent as the equivalent bribery of a domestic official. In addition to criminal, 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.

Since the OECD Convention came into force, 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. Not only do countries assess their own

progress, they also assess that of other States Parties. Since 1999, peer 102 review has

taken place in over half of the 34 States Parties. For each country the Working Group

conducted an evaluation that was then made available to the public.

2.3 Extradition

Extradition is the surrender by one state, at the request of another, of a person who is

accused or has been convicted of a crime committed within the jurisdiction of the

requesting state. Although new forms of judicial cooperation in criminal matters have

been developed, such as transfer of proceedings, 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.

When a suspect or convicted person is located in a foreign state (the requested state), 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.

2.3.1 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 aspecific agreement binding it to do so. Because of this principle, many states, in particular


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those of the common law tradition, will not extradite in the absence of a treaty or an ad

hoc agreement such as an Exchange of Letters. Those states, as well as many other states,

have traditionally based their extradition relationships on bilateral treaties.

Many countries do not permit extradition for the purpose of questioning a fugitive or for

their being investigated. With the inherent difficulties of separately negotiating a large

number of bilateral instruments, increasingly countries have resorted to regional

agreements and multilateral schemes for extradition. (The 50-odd countries of the

Commonwealth, formerly the British Commonwealth, have had their own collective

arrangements for extradition since 1966.) In the face of crimes with effects of

international proportion, more general multilateral conventions have been developed,

directed at particular crimes such as terrorist acts, drugs and organized crime. These

conventions commonly include articles relating to extradition, such as the following:

The convention offences are deemed to be included as extraditable offences in any

treaty existing between Contracting Parties,

A convention is considered to be a treaty for extradition purposes, where extradition is

conditional on a treaty and no treaty exists between two Contracting Parties,

The convention offences are considered extraditable if extradition is not conditional on

a treaty.

State parties are obliged either to extradite alleged offenders or to bring them before

their own courts with jurisdiction based on e.g. the nationality of the offender (the

principle of aut dedere aut judicare)1.

Extradition without a treaty; Some states allow extradition without a treaty, on the basis

of national legislation, which imposes in principle a condition of reciprocity. This is the

basis for the Commonwealth Scheme, referred to above, which is not treaty-based. 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, subject toapplicable domestic constitutional or legal constraints.

2.3.2 Extraditable offences

From the list approach to the eliminative approach most extradition treaties

developed in the late 1800s to the early-to-mid 1900s defined extradition crimes by

reference to a list of offences. Such lists are generally stagnant, and governments fail to

bring them up to date to cover new crimes and changing terminologies as these emerge.

To make matters worse, on occasions certain serious offences were omitted from the list


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from the outset. Where it is not possible to supplement the particular treaty by means of

a Declaration of Reciprocity, a fugitive is likely to escape 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, by a minimum

penalty defined by the two states (such as two years imprisonment), is considered to be

sufficiently serious as to warrant being an extraditable offence.

For extradition to be available, the act/s in question must constitute a crime in both the

requesting and requested state. This rule serves two different purposes: first, 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; and second, to respect the rule of

reciprocity in international proceedings. 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, named or prove criminal offences. For example,

what may be called theft in one state may be named larceny in another. Although the

conduct of the alleged offence may include all of the elements of fraud, as defined in both

states, the definitions of the offences created to counter them may differ. Therefore,

states have been looking for a more modern test for dual criminality; one that focuses not

on technical terms or definitions but on the substantive underlying conduct. This new

test, which has greatly simplified and improved extradition practices where it has been

introduced, examines whether the conduct alleged against the fugitive would constitute a

criminal offence in the requested state, regardless of whether the offences in the two

states carry different names or have different constituent elements.

But not all problems have been solved. In relation to the corruption of public officials the

problem may arise where states only punish corruption of their own public officials, not

that of public officials of other states. (If A requests B to extradite X, charged with

corruption of a public official in A, B may not be able to extradite X because the facts, had

they been committed on Bs territory, would not constitute an offence.) This has proved

an obstacle to extradition in a number of cases. A flexible solution is the transformative

interpretation, which is followed in such countries as Germany, Austria and the

Netherlands. In this approach, the requested 113 state substitutes its own national

elements for foreign national elements in the definition of the crime in an extradition

request. Accordingly, for the purpose of extradition, bribery of national and foreign public

officials is treated as being the same.

2.3.3 Bars and limits to extradition

- The Political offence and the fiscal offence exceptionsThere is no internationally accepted criteria or definition of the term political offence or

the rule that bars extradition for such an offence. A distinction is often made between


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purely political offences (offences of opinion, political expression or those which

otherwise do not involve the use of violence such as treason and espionage) and relative

political offences (which involve violence as an incidence of the political motivation and

goal of the actor, but which do not constitute wanton or indiscriminate violence directed

against an internationally protected person, such as a civilian, i.e. it does not constitutean act of terrorism).

In the Inter-American Convention against Corruption of 1996 it is provided that, for the

purposes of extradition and mutual legal assistance, the fact that the property obtained

or derived from an act of corruption was intended for political purposes, or that it is

alleged that an act of corruption was committed for political motives or purposes, 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. 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. There is a

general trend towards restricting, if not excluding altogether, the applicability of the

political offence exception in respect to violent criminal acts. Traditionally, fiscal offences

have been omitted from the scope of extraditable crimes, either through an explicit

provision or by omission from the lists of extraditable offences. 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 states

political-economic system) is now breaking down owing to increased concerns about

organized crime, drug trafficking, money laundering, massive tax evasion, and violationsof currency laws. The UN Convention Against Transnational Organized Crime explicitly

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