Today, we return to complete our review of the Convention. So far, we have discussed: (a) the foreword to the Convention by former Secretary-General Kofi Annan; (b) the General Assembly resolution on the matter; (c) the preamble to the Convention; (d) general provisions; (e) preventive measures; and (f) criminalization and law enforcement.
Concealment and obstruction of justice (continued)
The Convention requires Member States to establish procedures through which a public official accused of an offence is to be removed, suspended or re-assigned, with due regard to the principle of presumption of innocence. Once convicted, and depending on the gravity of the offence, there must be a system for disqualification from holding public office for a period of time, including office in a state-owned/controlled entity.
Freezing, seizure and confiscation
The Convention provides for the confiscation of proceeds of crime or property that corresponds to such proceeds, including converted or transformed property as well as property intermingled with those acquired through legitimate means. It also includes income derived from such property. In addition, measures are to be put in place to identify, trace, freeze or seize such proceeds or assets, and to regulate the administration of this important anti-corruption mechanism. These include empowering the courts or other competent authorities to order that bank financial or commercial records to be seized. In this regard, bank secrecy is not applicable, and the onus is on the defender to demonstrate the lawful origin of such proceeds, property or income. Other measures include:
● Providing effective protection from potential retaliation or intimidation of witnesses and their relatives;
● Annulling or rescinding a contract, withdrawing a concession or any other similar instrument, or taking other remedial action in cases where corruption is a relevant consideration; and
● Ensuring that entities or persons suffering damage as a result of an act of corruption have a right to compensation against those responsible.
Preventing and detecting transfers of proceeds of crime
The Convention requires financial institutions to verify the identity of beneficial owners of funds deposited in high-value accounts and to conduct enhanced scrutiny of accounts sought or maintained by or on behalf of individuals who are or have been entrusted with prominent public functions as well as those of their family members and close associates. In addition, public officials having an interest in, or signature or other authority over, a financial account in a foreign country are to: (a) report that relationship to the appropriate authorities; (b) maintain adequate records; and (c) face sanctions for non-compliance. An effective financial disclosure system is also to be established for appropriate public officials, including sanctions for non-compliance.
International cooperation for recovery of property
Member States are to cooperate with each other in initiating civil actions to establish title to or ownership of property acquired through the commission of offences under the Convention and to pay compensation or damage. In this regard, the competent authorities are to give effect to an order of confiscation by a court of another Member State including the confiscation of property of foreign origin in relation to an offence of money laundering. There is also provision for mutual legal assistance and for the confiscation of property without criminal conviction where the offender cannot be prosecuted by reason of death, flight or absence.
An integral aspect of international cooperation is the freezing or seizure of property by an order issued by a court where there are sufficient grounds for doing so. Member States are to provide the UN Secretary-General with copies of their laws and regulations, and any changes thereof, attesting to cooperation with other States. Property confiscated at the request of a Member State is to be disposed of, including by return to its legitimate owners, in accordance with the Convention and taking into account the rights of bona fide third parties. In the case of embezzlement of public funds or the laundering of embezzled public funds, where confiscation was executed on the basis of a final judgment of the requesting Member State, the confiscated property is to be returned to that Member State where prior ownership has been reasonably established or where damage has been suffered, subject to certain deductions for expenses incurred.
The Convention reiterates the role of a Financial Intelligence Unit responsible for receiving, analyzing and disseminating to the competent authorities reports of suspicious transactions. The Convention also provides for Member States to enter into bilateral and multilateral agreements or arrangements to enhance international cooperation in the fight against corruption and money laundering.
Technical assistance and information exchange
Member States are to develop or improve specific training programmes for personnel responsible for preventing and combating corruption in areas such as:
● Effective measures to prevent, detect, investigate, punish and control corruption, including evidence gathering and investigative methods;
● Building capacity in developing and planning strategic anti-corruption policy;
● Training competent authorities in preparation for mutual legal assistance as envisaged by the Convention;
● Evaluating and strengthening institutions, public service management and the management of public finances, including public procurement, and the private sector;
● Preventing and combating the transfer of proceeds of offences established under the Convention, detecting and freezing such proceeds, and their recovery;
● Surveillance of the movement of proceeds of offences and of methods used to transfer, conceal or disguise such proceeds;
● Appropriate and effective legal and administrative mechanisms and methods for facilitating the return of proceeds of offences;
● Methods used in protecting victims and witnesses who cooperate with judicial authorities; and
● Training in national and international regulations and in languages.
Depending on their ability to do so, Member States are to consider providing technical assistance, especially for the benefit of developing countries in the areas identified above, especially as regards extradition and mutual legal assistance. They are also to maximize operational and training activities in international and regional organisations within the framework of bilateral or multilateral agreements or arrangements. In addition, Member States are to consider assisting each other, upon request, in conducting evaluations, studies and research relating to the types, causes, effects and cost of corruption in their respective countries with a view to developing, with the participation of the competent authorities and society, strategies and action plans to combat corruption. In order to facilitate the recovery of proceeds of offences, Member States are to cooperate in providing each other with the names of experts who could assist in achieving this objective.
The Convention advocates the use of sub-regional, regional and international conferences and seminars to promote cooperation and technical assistance and to stimulate discussion on problems of mutual concern, including special problems and needs of developing countries and countries with economies in transition. Member States are also to consider, as a voluntary mechanism, contributing financially to the efforts of these countries to apply the Convention, through technical assistance programmes and activities, including voluntary contributions to the United Nations Office on Drugs and Crime.
Collection, exchange and analysis of information on corruption
The Convention requires Member States to analyse, in consultation with experts, trends in corruption in their regions and the circumstances in which corruption offences are committed. They are also to share with each other information, statistics and analyses from experts concerning corruption in order to develop common definitions, standards and methodologies, and information on best practices to prevent and combat corruption. In addition, Member States are required to monitor their policies and actual measures to combat corruption and to assess their effectiveness and efficiency.
Mechanisms for the implementation of the Convention
The Convention establishes the Conference of Parties (COP) to the Convention to improve the capacity of and cooperation among Member States to achieve the objectives of the Convention and to promote and review its implementation. The COP has adopted rules of procedure as well as rules governing the functioning of its activities, and regular meetings are held in accordance with these rules of procedure. Secretariat services are provided by the Secretary-General. A key function of the Secretariat is to ensure the necessary coordination with the secretariats of relevant international and regional organisations.
Settlement of disputes and other final provisions
Member States are to settle disputes concerning the interpretation or application of the convention through negotiation. If within a reasonable of time, the dispute is not settled, the matter goes to arbitration. If after six months, the concerned parties are unable to agree on the organization to carry out the arbitration, either party can refer the matter to the International Court of Justice.
The convention was open to all Member States for signature on 9-11 December in Mexico, and thereafter at the United Nations headquarters in New York until 9 December 2005. It is also subject to ratification, acceptance, approval and accession, and the related instruments are to be deposited with the Secretary-General. The Convention cannot be amended until five years after its entry into force. A State party can propose an amendment which has to be transmitted to the Secretary-General, and the COP will arrive at a decision as far as possible by consensus, failing which the COP will decide by a majority of two-thirds of those present.
Finally, any party can denounce the Convention by written notification to the Secretary-General, and the effective date of denunciation is one year later.
