Project funded by the European Union
Projekat finansira Evropska unija
EU aquis in the Anti-corruption:
Overview of International Anti-Corruption Standards
Londa Esadze, PhD
Senior Justice and Home Affairs Expert, PLAC Project
January 30, 2014
Belgrade, Serbia
Project implemented by
Projekat sprovode
Damage of Corruption
Cost of corruption exceeds by far
the damage caused by any other
single crime
• World Bank – More than 1 trillion
US$ is paid in bribes a year
• Asian Development Bank – Cost of
corruption = up to 17% of GDP
• The harm exceeds the proceeds –
US$ 1 bribes = US$ 1.7 damage
Costs of Corruption
“The economic costs incurred by corruption in the EU
possibly amount to EUR 120 billion per year. This is
one percent of the EU GDP representing only a little
less than the annual budget of the EU”.
European Commission
http://ec.europa.eu/dgs/home-affairs/what-wedo/policies/organized-crime-and-humantrafficking/corruption/index_en.htm
Project funded by the European Union
Projekat finansira Evropska unija
An EU policy against corruption
Combating and preventing corruption is an integral part of the European
Union’s internal and external policies:
– Internal: priority in respect of the existing Member States and also
representing a key aspect of the acquis for the accession countries;
– External: priority in respect of the European Union’s approach to
international relations.
What is under scrutiny from an acquis point of view?
•
Chapter 23 – Judiciary and Fundamental
Rights/Anti-corruption
policy
•
Chapter 24 – Justice, Freedom and Security
Project implemented by
Projekat sprovode
Project funded by the European Union
Projekat finansira Evropska unija
Acquis anti-corruption package
The monitoring of governmental anti-corruption
activities is only possible with measurable anticorruption benchmarks.
Challenge: corruption is a horizontal issue and no direct
“acquis” covers the fight against corruption
Solution: “acquis” is packaged with the EU and
international anti-corruption standards
Project implemented by
Projekat sprovode
Project funded by the European Union
Projekat finansira Evropska unija
Acquis anti-corruption package for Serbia
•
•
•
•
Convention of 26 May 1997 on the fight against corruption
involving officials of the European Communities or officials of
the Member States of the EU OJ C 195, 25.6.1997
Convention of 26 July 1995 on the protection of the European
Communities’ Financial Interests: JO C 316 of 27 November
1995
Protocol drawn up on the basis of Article K.3 of the Treaty on
European Union to the Convention on the protection of the
European Communities' financial interests
Second Protocol, drawn up on the basis of Article K.3 of the
treaty on European Union, to the Convention on the protection
of the European Communities' financial interests
Project implemented by
Projekat sprovode
Project funded by the European Union
Projekat finansira Evropska unija
•
•
•
•
•
•
•
Council Framework Decision 2003/568/JHA of 22 July 2003 on
combating corruption in the private sector OJ L 192, 31.7.2003, p.54
Commission Decision of 6 June 2011 – Establishing an EU Anticorruption reporting mechanism for periodic assessment ("EU Anticorruption Report")
Council Decision 2008/582/JHA of 24 October 2008 on a contact-point
network against corruption
Council Decision 2008/801/EC of 25 September 2008 on the
conclusion, on behalf of the European Community, of the United
Nations Convention against Corruption OJ L 287, 29.10.2008, p.1.
Council Decision 2004/579/EC of 29 April 2004 on the conclusion, on
behalf of the European Community, of the United Nations Convention
against Transnational Organised Crime OJ L 261, 6.8.2004
UN Convention against Corruption, Merida 2003
OECD Convention on Combating Bribery of foreign public officials in
International Business Transactions, of 17 December 1997;
Project implemented by
Projekat sprovode
Project funded by the European Union
Projekat finansira Evropska unija
•
•
•
•
•
•
Council of Europe Criminal Law convention on Corruption,
opened to signature on 27 January 1999; (also relevant for
judicial cooperation in penal matters)
Council of Europe Civil Law convention on corruption,
opened to signature on 4 November 1999
UN Convention against Transnational Organized Crime,
Palermo December 2000
Council of Europe Resolution (97) 24 on the Twenty
Guiding Principles for the Fight Against Corruption
Council of Europe Recommendation on Codes of Conducts
for public officials (recommendation no. R(2000)10)
Council of Europe Recommendation on Common Rules
against corruption in the funding of political parties and
Electoral Campaigns (rec(2003)4)
Project implemented by
Projekat sprovode
Project funded by the European Union
Projekat finansira Evropska unija
Specific objectives of the assignment
• Review the legislation and standards pertaining anticorruption in notably chapters 23 and 24 of the acquis, and in
other chapters as pertinent, and Serbian legislation in this
field;
• Assess the state of harmonisation between the Serbian
legislation in the area of anticorruption and the standards and
criteria identified in the acquis chapters;
• Draft a report on legal gaps and state of harmonisation
between these standards and criteria and Serbian current
legal framework.
Project implemented by
Projekat sprovode
Project funded by the European Union
Projekat finansira Evropska unija
Outcomes of the assignment
FINAL REPORT
•
Overview of the acquis’ anti-corruption instruments (EU and
international standards)
•
Conformity of the Serbian national legal framework with the EU and
international anti-corruption standards: main gaps and findings
•
Assessment of the National Anticorruption Strategy and Action Plan vs
the acquis’ anti-corruption instruments: : main findings and
recommendations
•
Main conclusions and recommendations
Annex 1 – Table of concordance on the conformity of the Serbian national
legal framework with the EU and international anti-corruption
standards
Annex 2 – Table of cross-cutting issues
Annex 3 - Table of Assessment of the National Anticorruption Strategy
and Action Plan vs the EU acquis’ anti-corruption instruments.
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Project funded by the European Union
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Table of Concordance
Standard
Provision of
the Standard
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National legal
provision related
to the Standard
Conformity
Existing Remarks
gaps
Issue
STANDAR
D#1
STANDA
RD #2
STAND
ARD #3
STAND
ARD #4
STANDA
RD #5
STANDA
RD #10
STANDA
RD #11
STANDA
RD #12
STANDAR
D #13
STANDA
RD #14
STANDA
RD #15
STANDA
RD #16
STANDA
RD #17
Project funded by the European Union
Projekat finansira Evropska unija
1
Definition of
corruption
Article 2
(Passive
corruption);
Article 3
(Active
corruption).
x
Article 2
(Passive
corruptio
n);
Article 3
(Active
corruptio
n).
Article 1
Article 2
Active and
passive
corruption
in the
private
sector
X
(definitions
of different
corruption
offences
are
provided,
but no
universal
definition of
corruption )
X (Article 1
– definition
of bribery
of foreign
public
official)
Article 2-13
contain
component
s of
definitions
of active
and
passive
briberies
and trading
in
influence.
Article 2
(“Definition
of
corruption”)
Article 8.1
(definition
of
corruption
offence)
x
X
x
2.
Passive
corruption\Pa
ssive bribery
Article 2
x
Article 2
x
Article 2 p.
1b
Article 15
Article 1
(passive
bribery of
foreign
public
officials)
Article 3
x
Article 8
x
X
x
3.
Active
corruption\Ac
tive bribery
Article 3
x
Article 3
x
Article 2 p.
1a
Article 15
Article 1
(active
bribery of
foreign
public
officials)
Article 2
x
Article 8
x
X
x
4.
Bribery\corru
ption of
foreign
officials
Article 4
(“Assimilati
on”)
x
Article 4
(“Assimil
ation”)
x
x
Article 16
Article 1
Article 5
(Bribery of
foreign
public
officials);
Article 6
(Bribery of
foreign
public
assemblies
); Article 9
(Bribery of
officials of
internationa
l
organizatio
ns); Articles
10-11
(Bribery of
members
of
internationa
l
parliamenta
ry
assemblies
and judges
and officials
of
internationa
l courts).
x
x
x
X
x
Project implemented by
Projekat sprovode
Project funded by the European Union
Projekat finansira Evropska unija
The Development of International AC Standards before the UNCAC:
Conventions
• 1996: The first regional convention, the Inter-American Convention against
Corruption, is adopted.
• 1997: The European Union Convention on the fight against corruption involving
officials of the European Communities or officials of Member States
• 1997: The OECD Convention against Bribery of Foreign Public Officials is adopted.
• 1999: The Council of Europe produces two anti-corruption treaties, the Criminal
Law and the Civil Law Conventions on Corruption.
• 2000: The UN Convention against Transnational Organized Crime is adopted.
• 2000: recognizing the need for a global convention focused only on corruption,
the UN General Assembly authorizes an ad-hoc group to negotiate a “broad and
effective” treaty that takes a “comprehensive and multidisciplinary” approach to
the problem.
• 2003: The African Union Convention on Preventing and Combating Corruption is
adopted in Maputo,Mozambique.
Project implemented by
Projekat sprovode
Project funded by the European Union
Projekat finansira Evropska unija
The Development of International AC Standards before the
UNCAC: Soft Law
• United Nation Declaration against Corruption and Bribery in
International Commercial Transactions (1996)
• UN International Code of Conduct for Public Officials (1996): principles
concerning the prevention of conflicts of interest, the disclosure of assets,
the acceptance of gifts, the handling of confidential information and
involvement in political activity.
• Council of Europe’s Twenty Guiding Principles for the Fight against
Corruption (1997)
• Council of Europe’s Model Code of Conduct for Public Officials (2000):
address inter alia use of official information and public resources for
private purposes and the rules to follow when leaving the public service,
especially in relations with former public officials.
• Council of the European Union framework decision on combating
corruption in the private sector (2003)
Project implemented by
Projekat sprovode
Project funded by the European Union
Projekat finansira Evropska unija
UN Convention against Corruption
• 2003: adopted.
• 2005: comes into force after its
30th ratification in December.
• Signatories : 140
• Ratifications/Accessions : 170
Project implemented by
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Project funded by the European Union
Projekat finansira Evropska unija
UNCAC Signature and Ratification Status as of
30 January 2014
Project implemented by
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Project funded by the European Union
Projekat finansira Evropska unija
Country that did not ratify
Japan, Germany (failing to address key questions such
as bribery of members of parliament and extraparliamentary incomes), Burma, Sudan, North Korea,
Syria, Côte d'Ivoire, Chad, Guinea, Somalia, Eritrea,
New Zealand, Swaziland.
“The inactivity of the German government not only harms Germany’s
international reputation and the reputation of the German parliament, but
also the German export industry” - Peter von Blomberg, TI Germany.
Project implemented by
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Project funded by the European Union
Projekat finansira Evropska unija
Acquis Standards for Serbia:
EU Convention 1997 on the fight against corruption involving officials of the
European Communities or officials of the Member States of the EU
Key provisions:
• Passive corruption; Active corruption; national and European public
officials; Criminal liability of heads of businesses; International
cooperation, Extradition
• jurisdiction over the offences it has established in accordance with the
obligations arising out of this Convention in the following cases:
- when the offence is committed in whole or in part within its territory;
- when the offender is one of its nationals or one of its officials;
- when the offence is committed against European or national officials or
against a member of the EU institutions who is also one of its nationals;
- when the offender is a European official working for a European Community
institution, agency or body that has its headquarters in the Member State
in question.
Project implemented by
Projekat sprovode
Project funded by the European Union
Projekat finansira Evropska unija
EU Convention on the protection of the European
Communities' financial interests (1995)
Key provisions include:
• Criminalization of fraud, criminal penalties, criminal liability of
heads of businesses and rules on jurisdiction.
• Fraud affecting both expenditure “and revenue”, as well as
participating in, instigating, or attempting such conduct, must
be punishable by effective, proportionate and dissuasive
criminal penalties in every European Union (EU) country.
• Obstructing EU tender procedures; Favouritism; Abuse of
power; Specific to EU financial interest.
Project implemented by
Projekat sprovode
Project funded by the European Union
Projekat finansira Evropska unija
Protocol to the Convention on the protection of the European
Communities' financial interests
Entered into force on 17 October 2002;
Key provisions:
• Passive corruption actually or potentially damaging the
Communities' financial interests.
• Active corruption of an official which actually or potentially
damages the Communities' financial interests.
• Assimilation: national officials so as to cover similar conduct
by European Community officials
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Projekat sprovode
Project funded by the European Union
Projekat finansira Evropska unija
Second Protocol to the Convention on the protection of the
European Communities' financial interests
This protocol entered into force on 19 May 2009.
Key provisions:
liability of legal persons, confiscation, money
laundering and cooperation between EU countries
and the Commission for the purpose of protecting
the European Communities' financial interests.
Project implemented by
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Project funded by the European Union
Projekat finansira Evropska unija
Council Framework Decision 2003 on combating
corruption in the private sector
The Framework Decision calls on all EU member
states to criminalize active and passive
corruption in the private sector and to
establish the liability of legal persons for
corruption in the private sector.
Project implemented by
Projekat sprovode
Project funded by the European Union
Projekat finansira Evropska unija
OECD Convention on Combating Bribery of foreign public
officials in International Business Transactions, 1997
• The OECD Convention is exclusively focused on the supply
side of the bribery of foreign public officials and the sanctions
for such activity. The Convention is an instrument which
permits the OECD and its member countries to move in a coordinated manner to adopt national legislation to criminalise
bribery of foreign officials.
• The monitoring of the Convention is carried out by the OECD
Working Group on Bribery which is composed of members of
all State Parties.
Project implemented by
Projekat sprovode
Project funded by the European Union
Projekat finansira Evropska unija
Council of Europe Criminal Law convention on
Corruption 1999
Open to: All member states of Council of Europe and 6 non-member
states (Belarus, Canada, the Holy See, Japan, Mexico, USA).
Key provisions: active and passive bribery of domestic public officials,
bribery of members of domestic public assemblies, foreign public
officials, members of foreign public assemblies, officials of
international organisations, members of international
parliamentary assemblies, of judges and officials of international
courts; active and passive bribery in the private sector; Trading in
influence; Money laundering; Account offences; Immunity;
Corporate liability; Protection of collaborators of justice and
witnesses; Confiscation, etc.
Convention is being monitored by the "Group of States against
Corruption - GRECO".
Serbia: Ratified 18/12 2002. Entered into force 1 Apr. 2003.
Project implemented by
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Project funded by the European Union
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Council of Europe Civil Law Convention on
Corruption 1999
This Convention is the first attempt to define common international
rules in the field of civil law and corruption.
• Requiring each Party to provide in its internal law for effective
remedies for persons who have suffered damage as a result of
corruption, in order to enable them to defend their rights and
interests, including the possibility of obtaining compensation for
damage.
• The Convention also deals with the definition of corruption, liability,
contributory negligence, limitation periods, the validity of contracts,
the protection of employees, accounts and audits, the acquisition
of evidence, interim measures, international co-operation and
monitoring.
Serbia: Ratified 09/01/2008.
Project implemented by
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Project funded by the European Union
Projekat finansira Evropska unija
Council of Europe Resolution (97) 24 on the Twenty Guiding
Principles for the Fight against Corruption
General principles include:
(a) raising public awareness and promoting ethical, behaviour;
(b) ensuring a coordinated criminalization of national and
international corruption;
(c) guaranteeing the appropriate independence and autonomy of
those in charge of the prevention, investigation, prosecution and
adjudication of corruption offences;
(d) taking appropriate measures for the seizure and deprivation of the
proceeds of corruption offences, as well as for preventing legal
persons from being used to shield corruption offences; and
(e) limiting immunity from investigation, prosecution or adjudication of
corruption offences to the degree necessary in a democratic
society.
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Project funded by the European Union
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Council of Europe Recommendation on Codes of
Conducts for public officials (recommendation no.
R(2000)10)
The Council of Europe Committee of Ministers recommends that
governments of member states promote, subject to national
law and the principles of public administration, the adoption
of national codes of conduct for public officials. A model code
of conduct is annexed to the declaration. Model Code address
inter alia use of official information and public resources for
private purposes and the rules to follow when leaving the
public service, especially in relations with former public
officials.
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Project funded by the European Union
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Council of Europe Recommendation on Common Rules against
corruption in the funding of political parties and Electoral
Campaigns (2003)
Establishes the rules against corruption in the
funding of political parties and electoral
campaigns.
Common rules are reproduced in the appendix
to this recommendation.
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Project funded by the European Union
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UN Convention against Transnational Organized
Crime, Palermo December 2000
• The Convention deals with the fight against organised crime in
general and some key activities in which transnational organised
crime is generally involved, e.g. money-laundering, corruption and
the obstruction of justice.
• The Convention address corruption in 2 articles: Article 8 Criminalization of corruption and Article 9 - Measures against
corruption.
• The key points of the Convention are comprehensive regulations
covering mutual extradition of suspects as well as international
legal assistance in the prosecution of criminals. Further individual
regulations cover such matters as victim and witness protection,
police collaboration (exchange of information, training, technical
assistance) as well as prevention measures.
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Project funded by the European Union
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The United Nations Convention against Corruption 2003
UNCAC highlights:
• covers all regions;
• tackles the responsibilities of developed, as well as developing countries;
• focuses on the prevention of corruption, not just its criminalisation;
• covers private as well as public sector corruption: bribe-payers and bribetakers;
• outlaws the payment of bribes to foreign public officials, going beyond a
similar prohibition in the OECD Convention and covering new trading powers
such as India and China;
• identifies as a priority the return of stolen assets to their country of origin and
requires the prevention and punishment of corruption-related money
laundering;
• strengthens transparency, accountability and participation in public decisionmaking;
• calls for financial and technical assistance to developing countries for UNCAC
implementation.
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Project funded by the European Union
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Structure of UNCAC: consists of 8 chapters and 71
provisions
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Project funded by the European Union
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The UNCAC “language”
• Many of the UNCAC provisions are not self-executing, but require
implementation through the national laws; This is generally true with respect
to criminalization. In contrast, the international cooperation chapter -- as is
the case with other conventions -- is predominately self-executing.
• The UNCAC is a mixture of mandatory and non-mandatory (discretionary)
provisions and its language is often notably vague in many areas - gaps
analyses is needed to prevent arbitrary interpretation of the Convention.
• Mandatory requirements (obligation to take legislative or other measures) –
“each State party shall adopt”
• Optional requirements (obligation to consider) – “each State party shall
consider adopting” or “shall endeavour to”→ States parties are urged to
consider adopting a certain measure and to make a genuine effort to check its
compatibility with domestic legal system
• Optional measures (measures that States parties may wish to consider) –
“each State party may adopt/consider”
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UNCAC: Some Weaknesses and Fears
• A mixture of mandatory and discretionary provisions.
• The language is often notably vague in many areas
and the parties are often given great discretion in
how (and whether) to apply particular provisions.
Treat of arbitrary interpretation by the state parties.
• The UNCAC does not cover political corruption, one
of the major concerns of citizens around the world.
Transparency in political financing is a mere
recommendation.
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Chapter III: Criminalization and Law Enforcement
Mandatory Offences
Bribery of National Public Officials (Art. 15)
Active Bribery of Foreign Public Officials (Art.16, para.1)
Embezzlement, Misappropriation or Other Diversion
of Property (Art. 17)
Laundering of proceeds of crime (Art. 23)
Obstruction of Justice (Art. 25)
Participation in such offences (Art. 27, para. 1)
Optional Offences








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Passive Bribery of Foreign Public Official (Art.16)
Trading in Influence (Art. 18)
Abuse of Functions (Art. 19)
Illicit Enrichment (Art. 20)
Bribery in Private Sector (Art. 21)
Embezzlement of Property in Private Sector (Art. 22)
Concealment (Art. 24)
Attempt / preparation of UNCAC offences (Art.27, paras. 23)
Project funded by the European Union
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The return of assets is a fundamental principle of the Convention. Not
only does the Convention devote a separate chapter to asset
recovery, but it addresses comprehensively the impediments to
effective preventive, investigative and remedial action on a global
level.
There is little discretion left to States parties about this chapter.
Therefore Serbian authorities are required to implement these
provisions and introduce legislation or amend their law as
necessary.
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Project funded by the European Union
Projekat finansira Evropska unija
Recovering Stolen Assets
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Project funded by the European Union
Projekat finansira Evropska unija
10 TOP HIGH POLITICAL LEADERS AND THEIR
STOLED ASSETS ($billion)
1. Ferdinand Marcos (1972–86) - Philippines:
more than 55 billion
2. Mohamed Suharto (1967–98) - Indonesia: 15
to 35 $billion
3. Sani Abacha (1993–98) - Nigeria: more than
5 $billion
4. Mobutu Sese Seko (1965–97) - Zaire: 5
$billion
5. Slobodan Milosevic (1989–2000 - ) Serbia/Yugoslavia: 1 $billion
6. Jean-Claude Duvalier (1971–86) - Haiti: 0.3
to 0.8 $billion
7. Alberto Fujimori (1990–2000) - Peru 0.6
$billion
8. Pavlo Lazarenko (1996–97) - Ukraine: 0.114
to 0.2 $billion
9. Arnoldo Alemán (1997–2002) _Nicaragua:
0.1 $billion
10. Joseph Estrada (1998–2001) _Philippines:
0.07 to 0.08 $billion
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37
Project funded by the European Union
Projekat finansira Evropska unija
ZERO TOLERANCE ON CORRUPTION!
Otherwise:
Corruption is dead, Long Live Corruption!(?)
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Projekat sprovode
Questions, Comments, Suggestions?
www.euinfo.rs/plac