The UN Convention against Corruption (UNCAC)

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The UN Convention against Corruption (UNCAC)
Commonwealth Initiatives Where are we now?

• Martin Polaine

C O M M O N W E A L T H S E C R E T A R I A T
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The Pillars

• Prevention
• Criminalisation (including effective detection,
  investigation and prosecution)
• Asset Recovery
• International Co-operation
• Effective Monitoring

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UNCAC

• General assembly recognises that international
  anti-corruption instrument is desirable (Dec
  2000)
• Text negotiated during 7 sessions of the Ad Hoc
  Committee (Jan 2002-Dec 2003)
• Opened for signature in Merida, Mexico (Dec 2003)
• 30 ratifications needed to enter into force
• Entered into force 14 Dec 2005
• 140 signatories 50 parties

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• Prevention (Articles 5-14)
• Criminalisation (Articles 15-42)
• International Co-operation (Articles 43-49)
• Asset Recovery (Articles 51-62)
• Mechanisms for Implementation (Articles 63-4)

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Prevention Challenges

• Evaluation by a State Party of its
  anti-corruption laws/procedures is discretionary
• Integrity in the public service (Article 7) No
  mandatory provisions.
• Political Funding (Art 7(3)) Contentiousshall
  also consider taking appropriate measures

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Criminalisation

• Requirement to criminalise a wide range of
  corrupt acts transactions
• BUT several discretionary offences trading in
  influence, abuse of functions and illicit
  enrichment.

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International Co-operation

• Dual criminality is deemed fulfilled if the
  underlying conduct is a criminal offence under
  the laws of both State Parties
• State Parties are to ensure that all convention
  offences are extraditable in terms of their
  domestic law
• State Parties are required to afford one another
  the widest measure of mutual legal assistance in
  investigations, prosecutions and judicial
  proceedings

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Asset Recovery

• An important breakthrough!
• Fundamental principle of the Convention is the
  return of assets (Art 51)
• Articles 54-57 set out the mechanisms for asset
  recovery through international cooperation
• State Parties are required to adopt the necessary
  legislative or other measures to enable the
  return of confiscated property at the request of
  another State Party, taking into account the
  rights of bona fide third parties

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Monitoring under the Convention

• Article 63 Conference of the States Parties
• Monitoring mechanisms NOT built into the
  Convention
• The key to the effectiveness of the Convention?

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THE COMMONWEALTH

• Not confined to one region
• Common language, legal tradition,
  constitutional principles, legal challenges
• The Framework Principles
• Expert Working Groups
• Provision of training, and of drafting
  technical assistance

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JUDICIAL INTEGRITY

• The Bangalore Principles
• The Limassol Colloquium Conclusions

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RECOVERY REPATRIATION OF ASSETS

• CW States should sign, ratify implement the
  UNCAC as a matter of urgency
• CW Heads of State/Govt, ministers public
  officials should not have immunity from
  prosecution in domestic criminal courts
• Allegations of corruption by serving Heads
  of State Peer review mechanism should be put
  in place
• CW States should ensure that law clearly
  prescribes how public funds may be used

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• Strong, comprehensive legislation procedures
  for criminal conviction-based asset confiscation
  to be put in place also for non-conviction
  based
• Sufficient resources to be allocated for central
  authorities and other agencies dealing with asset
  confiscation etc
• MLA on basis of the Harare Scheme
• A direct enforcement system for foreign requests
• Provision in law, by judicial or executive
  process, for return of funds, minus expenses, to
  requesting State

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• CW Heads of Government should keep repatriation
  of assets on their agenda, and should commit
  themselves to periodic review of implementation
  progress re the Groups Recommendations.