State of implementation of the United Nations Convention agains Corruption

294 Pages·2017·1.08 MB·English

S
t
a
t
e

o
f

i
m
p
l
e
m
e
n
t
a
t
i
o
n

o
f

th State of implementation of
e

U
n the United Nations Convention
i
t
e
d
against Corruption
N
a
t
i
o
n
s

C
o
n Criminalization, law enforcement and
v
e
n
international cooperation
t
i
o
n
Second edition
a
g
a
i
n
s
t

C
o
r
r
u
p
t
i
o
n
UNITED NATIONS

UNITED NATIONS OFFICE ON DRUGS AND CRIME
Vienna
STATE OF IMPLEMENTATION OF THE
UNITED NATIONS CONVENTION AGAINST CORRUPTION
Criminalization, law enforcement and international cooperation
Second edition
UNITED NATIONS
Vienna, 2017
Symbols of United Nations documents are composed of letters combined with figures.
Mention of such symbols indicates a reference to a United Nations document.
© United Nations, October 2017. All rights reserved, worldwide.
The designations employed and the presentation of material in this publication do not imply
the expression of any opinion whatsoever on the part of the Secretariat of the United Nations
concerning the legal status of any country, territory, city or area, or of its authorities, or
concerning the delimitation of its frontiers or boundaries.
Information on uniform resource locators and links to Internet sites contained in the present
publication are provided for the convenience of the reader and are correct at the time of issue.
The United Nations takes no responsibility for the continued accuracy of that information or
for the content of any external website.
Publishing production: English, Publishing and Library Section, United Nations Office at Vienna.
ii
Acknowledgements
The present study was carried out by the Corruption and Economic Crime Branch of the
United Nations Office on Drugs and Crime (UNODC), in its function as secretariat of the
Conference of the States Parties to the United Nations Convention against Corruption and in
execution of its mandates to support Member States in the ratification and implementation of
the Convention, to facilitate and support the implementation review process and to provide the
Conference of the States Parties with information on the measures taken by States and the
difficulties encountered in implementation, thus promoting the exchange of information,
practices and experiences among States parties. The initial study was completed following
three years of intensive work (2013-2015), under the overall guidance of the Secretary to the
Conference of the States Parties and Chief of the Corruption and Economic Crime Branch,
Dimitri Vlassis, and with the support of Secretariat staff. The present, second edition of the
study was finalized in September 2017. It was drafted on the basis of a larger dataset, namely
the country reviews completed under the first cycle of the Mechanism for the Review of
Implementation of the United Nations Convention against Corruption.
The Secretariat wishes to extend its thanks to the authors of the study, Ioannis Androulakis,
Assistant Professor in Criminal Law and Criminal Procedure at the Faculty of Law of the
University of Athens, and Stefano Betti, International Criminal Justice Expert.
From the Secretariat, the following persons offered substantial guidance and contributions
throughout the development of this project: Dimosthenis Chrysikos, Dorothee Gottwald,
Oliver Landwehr, Tanja Santucci, Oliver Stolpe and Brigitte Strobel-Shaw. Special recognition
is due to Ms. Gottwald and Ms. Santucci, who worked closely with the authors of the study in
its conceptualization and development.
The study also benefited from the comments of peer reviewers Christine Uriarte (Senior
Legal Analyst, Anti-Corruption Division, Directorate for Financial and Enterprise Affairs,
Organization for Economic Cooperation and Development) and Christophe Speckbacher
(Head of Section, Secretariat of the Group of States against Corruption, Council of Europe),
as well as Jeanne Hauch, Jacinta Oduor, Larissa Alanna Grey, Ji Won Park and Francisca
Fernando (Stolen Asset Recovery (StAR) Initiative of the World Bank and UNODC).
iii

Contents
Acknowledgements .......................................................................................................................... iii
Executive summary .......................................................................................................................... vii
Introduction ...................................................................................................................................... 1
PART ONE. CRIMINALIZATION AND LAW ENFORCEMENT ............................................... 5
General observations ........................................................................................................................ 5
A. Implementation effects ...................................................................................................... 5
B. Definition of a public official (article 2) ............................................................................ 7
Chapter I. Criminalization .............................................................................................................. 13
A. Bribery in the public sector ............................................................................................... 13
1. Bribery of national public officials (article 15) .......................................................... 13
2. Bribery of foreign public officials and officials of
public international organizations (article 16) ............................................................ 30
B. Diversion of property, trading in influence,
abuse of functions and illicit enrichment .......................................................................... 39
1. Embezzlement, misappropriation or other diversion of
property by a public official (article 17) ..................................................................... 39
2. Trading in influence (article 18) ................................................................................. 42
3. Abuse of functions (article 19) ................................................................................... 47
4. Illicit enrichment (article 20) ...................................................................................... 51
C. Private sector offences ....................................................................................................... 60
1. Bribery in the private sector (article 21) ..................................................................... 60
2. Embezzlement of property in the private sector (article 22) ...................................... 64
D. Money-laundering and related conduct ............................................................................. 67
1. Laundering of proceeds of crime (article 23) ............................................................. 67
2. Concealment (article 24) ............................................................................................ 78
E. Obstruction of justice (article 25) ...................................................................................... 79
F. Provisions supporting criminalization ................................................................................ 85
1. Liability of legal persons (article 26) ......................................................................... 85
2. Participation and attempt (article 27) ......................................................................... 92
3. Knowledge, intent and purpose as elements of an offence (article 28) ...................... 95
4. Statute of limitations (article 29) ................................................................................ 97
Chapter II. Measures to enhance criminal justice ........................................................................... 103
A. Prosecution, adjudication and sanctions (article 30) ......................................................... 103
B. Freezing, seizure and confiscation (article 31) .................................................................. 125
C. Protection of witnesses, experts and victims (article 32) .................................................. 142
D. Protection of reporting persons (article 33)....................................................................... 152
E. Consequences of acts of corruption (article 34) ................................................................ 157
F. Compensation for damage (article 35) ............................................................................... 159
v
Chapter III. Law enforcement ......................................................................................................... 163
A. Institutional provisions ...................................................................................................... 163
1. Specialized authorities (article 36) ............................................................................. 163
2. Cooperation with law enforcement authorities (article 37) ........................................ 169
3. Cooperation between national authorities (article 38) ................................................ 176
4. Cooperation between national authorities and the private sector (article 39) ............ 180
B. Other provisions ................................................................................................................ 183
1. Bank secrecy (article 40) ............................................................................................ 183
2. Criminal record (article 41) ........................................................................................ 184
3. Jurisdiction (article 42) ............................................................................................... 187
PART TWO. INTERNATIONAL COOPERATION ...................................................................... 195
General observations ........................................................................................................................ 195
A. Scope ................................................................................................................................. 195
B. Implementation modalities ................................................................................................ 195
C. Implementation trends and challenges .............................................................................. 196
Chapter I. Extradition and transfer of sentenced persons ............................................................... 199
A. Extradition (article 44) ...................................................................................................... 199
B. Transfer of sentenced persons (article 45) ......................................................................... 218
Chapter II. Mutual legal assistance and transfer of criminal proceedings ...................................... 221
A. Mutual legal assistance (article 46) ................................................................................... 221
B. Transfer of criminal proceedings (article 47) .................................................................... 246
Chapter III. Law enforcement cooperation ..................................................................................... 249
A. Law enforcement cooperation (article 48) ........................................................................ 249
B. Joint investigations (article 49) .......................................................................................... 254
C. Special investigative techniques (article 50) ..................................................................... 255
PART THREE. REGIONAL TRENDS .......................................................................................... 259
Conclusion ....................................................................................................................................... 269
Bibliography .................................................................................................................................... 277
vi
Executive summary
The establishment and operation of the Mechanism for the Review of Implementation of the
United Nations Convention against Corruption have allowed for the collection, systematization
and dissemination of an unprecedented wealth of information that is useful for furthering the
goals of the Convention. The present, updated study is based on that information and contains a
comprehensive analysis of the implementation of chapters III (Criminalization and law enforce-
ment) and IV (International cooperation) of the Convention by the 156 States parties reviewed
at the time of drafting as part of the first cycle of the Implementation Review Mechanism, which
began in 2010. More specifically, the study: (a) identifies and describes trends and patterns in the
implementation of the above-mentioned chapters, focusing on systematic or, where possible,
regional commonalities and variations; (b) highlights successes and good practices on the one
hand, and challenges in implementation on the other, and presents a selection of examples of
implementation that are considered noteworthy or illustrative of the legislation and practice of
States parties; and (c) provides an overview of the emerging understanding of the Convention
and differences in the reviews, where they have been encountered.
The study identifies legislative and institutional changes that have characterized the anti-
corruption frameworks of most States parties in recent years and have led to a notable further-
ing of the purposes of the Convention. Combating corruption appears to rank among the
highest priorities of many national Governments. In a considerable number of countries, leg-
islative amendments and structural reforms have produced coherent and largely harmonized
criminalization regimes, tangible results in terms of enforcement capabilities and action, and
strong frameworks for extradition, mutual legal assistance and law enforcement cooperation.
In many countries, these legal and policy developments were initiated as a direct result of, or
in the context of the implementation reviews. It has emerged, therefore, that the Convention
and the reports produced as part of the Implementation Review Mechanism have already
played a significant role in triggering change and continue to serve as a basis for the establish-
ment of effective anti-corruption regimes.
Nonetheless, substantial challenges remain. These range from the most rudimentary
problems and practical impediments that are caused by a lack of experience, resources and
training, to technical issues in the formulation of criminalization provisions or the incorporation
of particular elements of, the Convention into complex procedural structures.
Gaps are more obvious in the implementation of chapter III of the Convention, in relation
to both criminalization and law enforcement, given that in those areas, the Convention requires
States parties to implement a particularly wide and multifaceted range of measures. Driven by
this requirement, as well as the concerted anti-corruption efforts undertaken at the global level
in recent years, several countries have introduced new legislation for the purposes of fulfilling
their obligations and improving their substantive and procedural criminal law provisions.
Such new legislation has, for example, widened the range of corruption offences and increased
the applicable penalties; expanded the definition of public officials; introduced a regime
governing the liability of legal persons; reduced the scope of immunities; expanded the
protection of witnesses, experts, victims and reporting persons; and strengthened the mandates
and functions of specialized anti-corruption authorities. In this context, concepts that were
new in some jurisdictions, such as bribery of foreign public officials and officials of public
vii
viii STATE OF IMPLEMENTATION OF THE UNITED NATIONS CONVENTION AGAINST CORRUPTION
international organizations, illicit enrichment and the freezing of proceeds of crime, were
analysed and effectively incorporated in national laws. Ancillary measures, for example
regarding the consequences of acts of corruption and compensation for damage, were
also enhanced.
Despite these efforts, however, in many countries there are considerable outstanding
issues, especially concerning the inadequate execution of measures that are mandatory under
the Convention. These include not only limitations in the scope of coverage of particular
offences (e.g., gaps regarding the criminalization of bribery of national public officials or of
obstruction of justice) and the lack of consistent and dissuasive sanctioning systems, but also
the complete absence of the implementation of some provisions (notably the offence of bribery
of foreign public officials and officials of public international organizations, measures that
enable the identification, tracing, freezing, seizure and administration of property, and
measures for the protection of witnesses). Problems were also observed with regard to the
apparent ineffectiveness of existing legislation (for example, with respect to money-laundering
or establishing the liability of legal persons), attributed in part to obstacles posed to investigation
and prosecution by immunities or the improper exercise of discretionary powers. With regard
to law enforcement, challenges often arise because of limitations in relation to the efficiency,
expertise, capabilities and independence of specialized authorities. There are also insufficient
incentives for cooperation with law enforcement authorities and a lack of effective inter-
agency coordination and information exchange, especially among agencies with an anti-
corruption mandate. Challenges related to the implementation of non-mandatory provisions
of the Convention are less pronounced but equally widespread.
Implementation of chapter IV appears to be more straightforward and solid, in part as a
result of the ability of a number of countries to apply the text of the Convention directly and
in view of the self-executing character of many of its provisions. Another reason is the
accumulated experience of many States parties in the field of international cooperation as a
result of long-standing practice on related issues. Many countries also confirmed compliance
with a number of Convention provisions (such as on consultations with other countries during
mutual legal assistance procedures) through practice and ad hoc arrangements. Additionally,
the reviews have highlighted a tendency towards the relaxation of some legal and procedural
constraints in the provision of assistance to foreign authorities. For example, the easing of
evidentiary requirements in extradition proceedings was noted in a number of reviews. The
interpretation of the dual criminality requirement on the basis of the underlying factual
conduct is another example. Lastly, a substantial number of parties appear to be in a position
to accept requests in languages other than their official one(s).
Some of the biggest challenges regarding chapter IV appear to be operational. In this
regard, a number of obstacles are linked to limited resources and/or the technical expertise
available to use videoconferencing for mutual legal assistance purposes or to carry out special
investigative techniques, either domestically or in the execution of foreign requests. The
reviews also highlighted the limited use of a number of mechanisms envisaged in the
Convention. For example, few States make direct use of the Convention as an autonomous
legal basis in extradition matters and even fewer appear to resort to the transfer of criminal
proceedings as a modality for international cooperation.
Numerous recommendations concerning the introduction of new provisions and laws
were made during the reviews. They included recommendations on considering the
consolidation and clarification of existing legislation in the context of ongoing legal reforms
and the adoption of stand-alone legislative frameworks with anti-corruption measures. In
viii