United Nations Convention against Corruption
The United Nations Convention against Corruption (UNCAC) is a landmark, international anti-corruption treaty adopted by the UN General Assembly in October 2003. It represents a remarkable achievement: a global response to a global problem. With 181 countries bound by UNCAC so far (as of 4 May 2017), it is unique not only in its worldwide coverage but also in theextent of its provisions, recognising the importance of both preventive and punitive measures. It also addresses the cross-border nature of corruption with provisions on international cooperation and on the return of the proceeds of corruption. States Parties (countries that have ratified the Convention) are also obliged to help each other to prevent and combat corruption through technical assistance (defined broadly to include financial and human resources, training, and research). The Convention further calls for the participation of citizens and civil society organizations in accountability processes and underlines the importance of citizens’ access to information. The UN Office on Drugs and Crime (UNODC) in Vienna serves as secretariat for the UNCAC.
Contents
What does implementation of UNCAC actually entail; what are its provisions? What follows is a description of the substantive chapters of the Convention, as well as an analysis of whatUNCAC can and cannot do. It is important to note that many of UNCAC’s provisions are mandatory, while others are either ‘strongly encouraged’ or optional (see annex for an overview of mandatory provisions). In addition, most provisions of the Convention make some reference to working within the principles of a State’s domestic law, which allows significant room for different interpretations of the Convention’s requirements in any given country. The key chapters of the Convention are described below, including how their implementation will be monitored.
Preventive measures
States Parties are obliged to adopt coordinated policies that prevent corruption and designate a ‘body or bodies’ to coordinate and oversee their implementation. The preventive policies covered by the Convention include measures for both the public and private sectors. These include, among others, transparent procurement and sound financial management, a merit-based civil service including clear conflict of interest regimes, effective access to public information, auditing and other standards for private companies,an independent judiciary, active involvement of civil society in efforts to prevent and combat corruption, and measures to prevent money-laundering.
Criminalization and law enforcement
States Parties must criminalise bribery (both the giving of an undue advantage to a national, international or foreign public official and the acceptance of an undue advantage by a national public official), as well as embezzlement of public funds. Other offences that States Parties are required to criminalise include obstruction of justice and the concealment, conversion or transfer of criminal proceeds. Sanctions extend to those who participate in or attempt to commit corruption offences. Acts that states are encouraged – but not required – to criminalise include acceptance of bribes by foreign and international public officials, trading in influence, abuse of function, illicit enrichment, bribery and embezzlement within the private sector, money laundering and the concealment of illicit assets.
International cooperation
States Parties are obliged to assist each other in cross-border criminal matters. This includes, for example, gathering and transferring evidence of corruption for use in court. The requirement of dual criminality (that the alleged crime for which mutual legal assistance is sought must be criminal in both the requesting and requested countries), which has traditionally hindered cooperation, is loosened. Cooperation in criminal matters is mandatory. In civil and administrative matters, it must be considered.
Asset recovery
A ‘fundamental principle’ of the Convention, and one of its main innovations, is the right to recovery of stolen public assets. According to many observers, Chapter V is the main “selling point” of the Convention, and the reason why so many developing countries have ratified. The UNCAC provisions lay a framework for countries to adapt both their civil and criminal law in order to facilitate tracing, freezing, forfeiting, and returning funds obtained through corrupt activities. The requesting state will in most cases receive the recovered funds as long as it can prove ownership. In some cases the funds may be returned directly to individual victims.
Technical assistance and information exchange
In the Convention, technical assistance refers generally to support aimed at helping countries comply with the UNCAC’s provisions. Chapter VI includes provisions on training, material and human resources, research, and information sharing. The Convention encourages the provision of training on topics such as investigative methods, planning and developing strategic anti-corruption policies, preparing requests for mutual legal assistance, public financial management, and methods used to protect victims and witness in criminal cases. States Parties should also consider helping each other conduct evaluations and studies on the forms, causes and costs of corruption in specific contexts, with a view to developing better policies for combating the problem.
Review of implementation
The decision on a mechanism for review of implementation of the UNCAC was taken at the Third Conference of States Parties in Doha, Qatar, in November 2009. The States Partiesdecided to set up a multi-staged peer review mechanism involving the review of each State Party by two peers. The review process is supposed to take no more than six months for anygiven country at any given stage of the process. The mechanisms started operation in July 2010 when the Implementation Review Group that oversees the review mechanism met forthe first time. To cover all countries, the process is divided in two five-year cycles. UNCAC chapters III and IV have been reviewed in the first cycle (2010–2014), while compliance withchapters II and V will be assessed during the second (2015– 2019). Thus, review on corruption prevention measures – a focus for many donor countries – will happen at a later stage.
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