Two weeks ago, we began an examination of the Inter-American Convention Against Corruption (IACAC) which was signed on 29 March 1996 and which came into force on 6 March 1997. It is the first international anti-corruption treaty that influenced the adoption of a number of other international instruments. These include the UN General Assembly’s major resolutions about its concern for corruption (1996); the Inter-American Program for Cooperation in the Fight against Corruption (June 1997); the OECD Convention on Combatting Transnational Bribery of Foreign Public Officials in Inter-national Business Transactions (December 1997); the African Convention Against Corruption (July 2003); and the United Nations Convention Against Corruption (December 2003).
We highlighted some important points in the preamble about the effects of corruption. These include:
Corruption undermines the legitimacy of public institutions and strikes at society, moral order and justice, as well as at the comprehensive development of peoples;
Representative democracy, an essential condition for stability, peace and development of the region, requires, by its nature, the combating of every form of corruption in the performance of public functions;
Fighting corruption strengthens democratic institutions and prevents distortions in the economy, improprieties in public administration and damage to a society’s moral fibre;
There are steadily increasing links between corruption and the proceeds generated by illicit narcotics trafficking which undermine and threaten legitimate commercial and financial activities, and society, at all levels; and
It is the responsibility of Member States to hold corrupt persons accountable in order to combat corruption and to cooperate with one another if their efforts in this area are to be effective.
We also outlined the main objectives of the Convention; preventive measures that Member States are required to take to combat corruption; applicability to acts of corruption; transnational bribery; illicit enrichment; and progressive developments. Today, we conclude our discussion of IACAC by looking at the other requirements of the Convention.
Extradition
The offences established under the Convention are extraditable offences to be included in any extradition treaty between and among the Member States. A Member State that relies on the existence of such a treaty as a condition for extradition may consider the Convention as the legal basis for doing so. On the other hand, a Member State that does not make extradition conditional on the existence of a treaty is required to recognize offences to which the Convention applies as extraditable offences.
Extradition is to be subject to the law of the Requested State or by applicable extradition treaties. This includes the grounds on which the Requested State may refuse extradition. If the Requested State considers that it has jurisdiction over the offence, it must submit the case to its competent authorities for the purpose of prosecution unless otherwise agreed with the Requesting State. The Requested State must then report the final outcome to the Requesting State in due course.
If the Requested State is satisfied that the circumstances so warrant and are urgent, it may take into custody a person whose extradition is sought and who is present in its territory, or take other appropriate measures to ensure his presence at extradition proceedings.
Assistance and cooperation
Member States are to afford one another the widest measure of mutual assistance by processing requests from authorities that have the power to investigate or prosecute the acts of corruption described in the Convention, to obtain evidence and take other necessary action to facilitate legal proceedings and measures regarding the investigation or prosecution of acts of corruption. They are also to provide each other with the widest measure of mutual technical cooperation on the most effective ways and means of preventing, detecting, investigating and punishing acts of corruption. To this end, member States are required to foster exchanges of experiences through agreements and meetings between competent bodies and institutions. They are also to pay special attention to methods and procedures of citizen participation in the fight against corruption.
Measures regarding property
Member States are to provide each other the broadest possible measure of assistance in the identification, tracing, freezing, seizure and forfeiture of property or proceeds obtained, derived from or used in the commission of offences established under the Convention. A Member State that enforces its own or another Member State’s forfeiture judgment against property or proceeds must dispose such property or proceeds in accordance with its laws. It may then transfer all or part of such property or proceeds to another Member State that assisted in the underlying investigation or proceedings.
Bank Secrecy
The Requested State must not invoke bank secrecy as a basis for refusal to provide the assistance sought by the Requesting State. It must act in accordance with its domestic law, its procedural provisions, or bilateral or multilateral agreements with the Requesting State. On the other hand, the Requesting State must not use any information received that is protected by bank secrecy for any purpose other than the proceeding for which that information was requested, unless authorized by the Requested State.
Other provisions
The fact that 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, is not enough to qualify the act as a political offence or as a common offence related to a political offence.
For the purposes of international assistance and cooperation provided under the Convention, each Member State may designate a central authority or may rely upon such central authorities as are provided for in any relevant treaties or other agreements. The central authorities are responsible for making and receiving the requests for assistance and cooperation referred to in the Convention. They are to communicate with each other directly for the purposes of the Convention.
The fact that an alleged act of corruption was committed before the Convention came into force does not prevent procedural cooperation in criminal matters between the States Parties. However, such cooperation must in no case affect the principle of non-retroactivity in criminal law, or interrupt existing statutes of limitations relating to crimes committed prior to the date of the entry into force of the Convention.
No provision in the Convention must be construed as preventing the Member States from engaging in mutual cooperation within the framework of other international agreements, bilateral or multilateral, currently in force or concluded in the future, or pursuant to any other applicable arrangement or practice.
At the time of adoption, signature, ratification, or accession, Member States may make reservations to the Convention, provided that each reservation concerns one or more specific provisions and is not incompatible with the object and purpose of the Convention. At the time of its ratification in December 2000, Guyana had expressed reservation that actions of seizure under Article XV of the Convention violated Article 142(1) of the Constitution. However, the reservation was removed on 11 April 2011 with Guyana reiterating “its undertaking to faithfully perform and carry out all of the stipulations of the Convention without reservation”.
The Convention came into force on 6 March 1997 following the deposit of the second Member State’s instrument of ratification. For each State ratifying or acceding to the Convention after this date, the Convention comes into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.
The Convention is to remain in force indefinitely, but any Member State may denounce it. The instrument of denunciation is to be deposited with the General Secretariat of the Organization of American States. One year from the date of deposit of the instrument of denunciation, the Convention ceases to be in force for the denouncing State.
Any member State may submit for the consideration at the meeting at a General Assembly of the Organization of American States draft additional protocols to the Convention to contribute to the attainment of the purposes of the Convention. Each additional protocol is to establish the terms for its entry into force and is to apply only to those States that become parties to it.
The original instrument of the Convention, in the English, French, Portuguese and Spanish, was to be deposited with the General Secretariat of the Organization of American States, which must forward an authenticated copy of its text to the Secretariat of the United Nations for registration and publication in accordance with Article 102 of the United Nations Charter. The General Secretariat of the Organization of American States must notify Member States and the States that have acceded to the Convention of signatures, of the deposit of instruments of ratification, accession, or denunciation, and of reservations, if any.
