The United Nations Convention Against Corruption: Immunities and Jurisdictional Privileges - Constantine Palicarsky Corruption & Economic Crime Branch
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The United Nations Convention Against
Corruption: Immunities and Jurisdictional
Privileges
Constantine Palicarsky
Corruption & Economic Crime Branch
Public institutions, Economic Development and Security
Economic Political and Social
• Enforcement of Property • Uphold the rule of law
Rights • Effective institutions mean
• Equal and fair application legitimate government
of law • Public trust issues
• Prevention of Expropriation • Security implications
• Patent Protection
• Provision of limited liability
• Foreign bribery
considerations
The Impact of Corruption
Economic Political and Social
• Depletion of national wealth • Impact on Democracy and
• Uneconomic, high-profile Rule of Law
projects rather than needed • Loss of Legitimacy of
infrastructure Institutions – particularly
• Distorts competition and harmful in emerging
markets
nations
• Discourages investment
• Frustration results in weak
society
• Potential ‘Brain Drain’
A brief history of international anti-corruption treaties
2003 United Nations Convention
against Corruption
2003 African Union
Convention
1999 Council of Europe
Conventions
1997 Organization for Economic Co-operation
and Development Convention
1997 European Union
Convention
1996 Organization of American
States Convention
U nitedN ationsConventionagainstCorruption
Chapter II Chapter III
Preventive Criminalization &
measures Law Enforcement
Chapter V Chapter IV
Asset Recovery International
Cooperation
Level of obligation in UNCAC Mandatory requirement (obligation to take legislative or other measures) - “each State party shall adopt” Optional requirement (obligation to consider) - “each State party shall consider adopting” - “each State party shall endeavour to” Optional measure (measure that State party may wish to consider) - “each State party may adopt/consider”
Examples of safeguard clauses in UNCAC
- “Subject to its Constitution and the fundamental principles of its legal
system” (art. 20)
- “Subject to the basic concepts of its legal system” (art. 23.1(b))
- “Consistent with its legal principles” (art. 26)
- “A State party whose law so permits” (art. 44.4)
- “Subject to the provisions of its domestic law and its extradition
treaties” (art. 44.10)
- “To the extent not contrary to the domestic law” (art. 46.17)
Implementation options in UNCAC Article 65, paragraph 2, UNCAC: “Each State party may adopt more strict or severe measures than those provided for by this Convention for preventing and combating corruption” Interpretative note on chapter III, UNCAC Travaux Préparatoires: “It is recognized that States may criminalize or have already criminalized conduct other than the offences listed in chapter III as corrupt conduct”
Chapter II –Preventive Measures (Arts 5 –14) • Anti-corruption policies and bodies • Public Sector – Recruitment / Retention of Civil Servants • Codes of conduct of Public Officials • Public Procurement – Establishing a system with objective criteria • Integrity of the Judiciary • Private Sector
Chapter III –Criminalization and Law Enforcement
Mandatory Offences Optional Offences
Bribery of National Public Officials (Art. 15) Passive Bribery of Foreign Public Official (Art.16)
Active Bribery of Foreign Public Officials (Art.16, Trading in Influence (Art. 18)
para.1) Abuse of Functions (Art. 19)
Embezzlement, Misappropriation or Other Diversion Illicit Enrichment (Art. 20)
of Property (Art. 17) Bribery in Private Sector (Art. 21)
Laundering of proceeds of crime (Art. 23) Embezzlement of Property in Private Sector (Art. 22)
Obstruction of Justice (Art. 25) Concealment (Art. 24)
Participation in such offences (Art. 27, para. 1) Attempt / preparation of UNCAC offences (Art.27,
paras. 2-3)
• General Provisions relating to all Offences:
– Statute of Limitations
– Jurisdiction
– Liability of Legal Persons
– Immunities and Jurisdictional PrivilegesChapter III: Immunities and Jurisdictional
Privileges
Article 30: Prosecution, adjudication and sanctions
…
2. Each State Party shall take such measures as
may be necessary to establish or maintain, in
accordance with its legal system and constitutional
principles, an appropriate balance between any
immunities or jurisdictional privileges accorded to
its public officials for the performance of their
functions and the possibility, when necessary, of
effectively investigating, prosecuting and
adjudicating offences established in accordance
with this Convention.COSP Resolutions Resolution 3/3/ • … Also encourages States parties to limit, where appropriate, domestic legal immunities, in accordance with their legal systems and constitutional principles Resolution 6/3 • … Encourages States parties to remove barriers to asset recovery, including by simplifying legal procedures, while preventing their abuse, and also encourages States parties to limit, where appropriate, domestic legal immunities, in accordance with their legal systems and constitutional principles;
Important issues to consider:
• The scope of officials subject to immunity
• The scope of the immunity provided
• The procedure for lifting immunities
• The effects of decisions to deny lifting immunities
• The percentage of cases where immunities have been
liftedThe scope of officials subject to immunity. • Not too broad, compact and clearly defined. • Considerable diversity in the scope of officials covered under immunity provisions – Head of State – broad categories of executive, legislative and judicial officials. States should consider limiting the effect of immunities and jurisdictional privileges to those cases where an exception from the normal flow of criminal proceedings is actually essential for the unperturbed execution of the public function in question
. The scope of the immunity provided: • Functional or absolute • Restricted to the raising of criminal charges or extends to the preliminary and investigative stages of an investigation • immunities should be limited to measures that are directly aimed at the person concerned and that all other investigative steps and the collection and securing of evidence should be available.
The procedure for lifting immunities • Procedures not too cumbersome or unwieldy • Minimize the risk of conflicts of interest and politically motivated influence • Establish guidelines and specific criteria to govern the lifting of immunities •
The effects of decisions to deny lifting immunities. • Reasonable room for a possible reassessment of the case. • Limitation of immunity to the period of time public officials hold a public office • Possibility of conducting criminal proceedings after the cessation of immunity • Statute of limitations may be suspended during tenure of office or during the time that a criminal proceeding cannot be initiated
The percentage of cases where immunities have been lifted. • Such data would be helpful to an analysis of the impact of the application of existing immunities and whether they have operated as a bar or hindrance to the investigation and prosecution of corruption offences
Chapter IV: International Cooperation
• Extradition
• Addresses the issue of ‘double criminality’.
• If State does not extradite its nationals it must seek to prosecute /
enforce a sentence that has already been applied.
• Encouragement of cooperation and the agreement of bilateral treaties
• Mutual Legal Assistance
• MLA to be provided in relation to investigations,
prosecutions and judicial proceedings
• Requirement for States to designate an MLA authority
• Outlines a template for an MLA requestMutual Legal Assistance (Art.46)
Widest Measure of Mutual Legal
Assistance in Investigations,
Prosecutions and Judicial
Proceedings in Relation to
Convention Offences
• Designation of Central Authority to
Receive, Execute or Transmit Request
•No Refusal of MLA on the Ground of Bank
Secrecy
•MLA can be Provided in the Absence of
Dual Criminality for Non-Coercive
MeasuresChapter V: Asset Recovery • Asset recovery as a fundamental principle of the Convention • Article 54(1)(c) of UNCAC requires States parties to consider taking measures as may be necessary to allow non-conviction based (NCB) forfeiture of assets in cases in which “the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases”
IMPLEMENTATION OF THE
CONVENTION
TREATY BODIES AND THE REVIEW
MECHANISMThe Conference of the States Parties
CoSP 6
2015
Promote, Facilitate & Review Implementation Russian
Federation
Make recommendations
CoSP 5
2013
Facilitate Information Exchange Panama
CoSP 4
Oct. 2011
Morocco
CoSP 3
Nov. 2009
Qatar
CoSP 2
Jan-Feb 2008
Indonesia
CoSP 1
Dec 2006
JordanOpen-ended Intergovernmental Working Groups
on Prevention and Asset Recovery
Conference of
States Parties
IRG
WG WG
Review Mechanism
Prevention Asset Recovery
Technical AssistanceUNCAC Implementation Review Mechanism
Mandatory peer-review process for all States parties
Two Cycles of Review
2009 – 2014: Chapters III and IV
2015 – 2020: Chapters II and V
Self- Desk Final
Assessment Review and Reports
Checklist Country Visit agreed
Executive Summaries of the reports from all reviews available on
UNODC WebsiteThe Implementation Review Mechanism –Update
Emerging trends following analysis of country reviews in years 1 - 4
Implementation of Chapter III
(Criminalization and Law Enforcement)
Examples of challenges :
- adoption of measures to criminalize bribery in the private sector,
- introduction of procedures regarding the protection of witnesses
and the protection of reporting persons (whistle-blowers)
Implementation of Chapter IV
(International Cooperation in Criminal Matters)
Examples of challenges :
- Need for appropriate training, access to information, language skills to enhance international
cooperation
- Need to strengthen channels of communication between competent anti-corruption authorities
- Need to further develop special investigative techniques in relation to corruption offencesTOOLS AND PROJECTS
UNCAC Legal Library (TRACK) Collection, organization and online availability of: Corruption-related laws; National anti-corruption plans/strategies; Anti-corruption bodies; Corruption-related cases. Added benefits: Practical implementation guidance; Resource for national legislators, anti-corruption authorities, assistance providers; Supporting analytical efforts; Convertible into training and educational materials; Promoting innovation. TRACK: Tools and Resources for Anti-Corruption Knowledge http://www.track.unodc.org/Pages/home.aspx
The Stolen Asset Recovery (StAR) Initiative
Global knowledge Institutions and
and advocacy capacity building
Lowering barriers in Gap Analysis
financial centers Networks
Analytic work Training
40% 30%
supporting policy
Guides and
handbooks 30% Encourage and
facilitate more
systematic and
Country engagement: timely return of
recovery of stolen assets assets stolen by
Honest broker
politically exposed
Preparatory assistance: capacity
persons through
building on asset tracing and mutual acts of corruption
legal assistancePrivate sector: partnerships and joint projects
Anti-Corruption Policies and Measures of the
Fortune Global 500
TRACK platform (incl. Legal Library)
Siemens Integrity Initiative – 3 anti-corruption
projects for the private sector (public procurement,
incentives for integrity, outreach & education)
E-learning tool for the private sector
Private sector initiatives partnering with…UNODC Publications and Technical Tools
Judicial Integrity Resource Guide Thematic Areas: • Recruitment, Evaluation and Training • Court Personnel: Function and Management • Case and Court Management • Access to Justice and Legal Services • Court Transparency • Evaluation of Courts and Court Performance • Codes of Conduct and Disciplinary Mechanisms
ACAD –Anti-Corruption Academic Initiative • Idea: to facilitate the integration of anti-corruption teaching into the curricula of universities and other institutes of higher education • Concept: “Menu of course topics” – wide choice of anti-corruption teaching subjects; annotated with bibliography, case studies, materials; textbook/teacher’s manual • Open-source, free of charge, accessible online, module-based, across disciplines/jurisdictions
Fighting Corruption through Education • Increasing recognition of the need to ally institutional reform with education. • Article 13 UNCAC requires States parties to undertake public education programmes, including school and university curricula. • UNODC assisting States in this regard through the Anti- Corruption Academic Initiative. • UNODC also an active partner in the NATO Building Integrity Initiative.
For further information: Corruption & Economic Crime Branch Division for Treaty Affairs United Nations Office on Drugs and Crime P.O.Box 500 Vienna A-1400 Austria Tel: +43-1-26060-4534 Fax: +43-1-26060-5841 http://www.unodc.org/unodc/en/treaties/CAC/index.html
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