Eduardo Augusto Mansano Manso
Corruption and the Fight Against It
Updated: May 22, 2021
Corruption is a complex social, economic, and political phenomenon that affects all countries around the globe. In different contexts, corruption harms democratic institutions, slows economic development, and contributes to political instability. It attacks the foundations of democratic institutions by distorting electoral processes, perverting the rule of law, and subtracting bureaucracy of its legitimacy. This discourages investment and the creation and development of businesses, which cannot afford the start-up costs required.
The concept of corruption is wide, including bribes and kickbacks, fraud, misappropriation of funds, or any other diversion of funds by a public agent. Moreover, it can involve cases of nepotism, extortion, trading in influence, use of privileged information for personal purposes, and selling of judicial sentences, among other practices.
Recognizing the necessity for a global instrument that could assist the Member States in the fight against corruption, the UN General Assembly approved, on 29th September 2003, the United Nations Convention against Corruption - the first legally binding international anti-corruption instrument. The Convention provides a path for the creation of a global response to the corruption problem.
United Nations Convention against Corruption
The Convention is composed of 71 articles, divided into 8 chapters. The most important articles are found in four chapters and deal with the following subjects: prevention, criminalization, recovery of assets, and international cooperation. These are the chapters that require legislative adaptations and/or actions for the Convention's implementation in each country.
In the chapter that deals with preventive measures, the Convention provides that the States Parties shall implement effective policies against corruption that promote the participation of society and reflect the principles of the rule of law, such as integrity, transparency, and accountability.
The States Parties must adopt selection and recruitment systems with objective criteria of merit. They must also take measures to increase transparency in the funding of candidates and political parties' campaigns. They must develop codes of conduct that include measures to facilitate reporting of acts of corruption by public officials and discourage the acceptance of gifts, or any other action from which a conflict of interests may result.
Criminalization and law enforcement
In the chapter on criminalization and law enforcement, the Convention requires States Parties to introduce in their legal systems criminal offenses that comprise not only the basic forms of corruption, such as bribery and embezzlement of public funds but also other acts that contribute to corruption, such as obstruction of justice, trading in influence and laundering of corruption proceeds. The criminalization of corruption is conditioned by the existence of mechanisms that allow the criminal justice system to perform actions of apprehension, prosecution, punishment, and recovery of assets.
The States Parties must establish criminal offenses: bribery of national public officials; active bribery of foreign public officials; embezzlement, misappropriation, and another diversion of property by a public official; money laundering; and obstruction of justice. They must also, to the extent possible, seek to establish as criminal offenses the following conducts: passive bribery of foreign public officials, trading in influence, abuse of function, illicit enrichment, bribery in the private sector, and embezzlement of property in the private sector.
The chapter on international cooperation emphasizes that all aspects of the anti-corruption efforts need international cooperation, such as mutual legal assistance in the collection and exchange of evidence, in extradition procedures, and joint actions of investigation, tracing, freezing of assets, seizure, and confiscation of corruption proceeds. The Convention innovates, in comparison to previous treaties, by allowing mutual legal assistance even in the absence of dual criminality, when corrective action is not involved. The principle of dual criminality provides that a country does not need to extradite people who committed acts that are not considered crimes in its territory. However, with the Convention, these requirements become more flexible, as it provides that even crimes that are not defined with the same terms or within the same category can be deemed as equivalents, enabling the extradition.
Extradition must be guaranteed in the cases of crimes mentioned by the Convention, and when the requirements of dual criminality are met. The States Parties must not consider corruption crimes as political crimes, and States that makes extradition conditional on the existences of treaties may consider the Convention as a legal basis for extradition. If a country does not extradite nationals, it must use the other country's application as a basis for internal proceedings. Moreover, the Convention provides that the States Parties seek to harmonize their national laws with the existing treaties.
The States Parties may refuse an extradition request if they detect persecution based on the person's sex, race, religion, nationality, ethnic origin, or political opinions. States Parties may not refuse a request for extradition on the sole ground that the offense is also considered to involve fiscal matters. The Convention recommends consultation with the requesting country before an extradition request is refused, even though such consultation is not mandatory, to allow the presentation of additional information that may result in a different result.
Asset recovery is an important innovation and a fundamental principle of the Convention. The States Parties must afford one another the widest measures of cooperation and assistance in this field, to protect the interests of victims and legitimate owners of the assets.
The States Parties must require financial institutions to verify the identity of its customers; to determine the identity of beneficiaries of high-value accounts; to conduct enhanced scrutiny of accounts kept by high public officials; to report suspicious transactions to the competent authorities, and to prevent the establishment of banks that have no physical presence.
Article 53 focuses on States Parties having a legal regime allowing another state party to initiate civil litigation for asset recovery or to intervene or appear in domestic proceedings to enforce their compensation claim. Based on this article, States Parties can initiate a civil action in the courts of another State Party to establish title to or ownership of property acquired through crimes covered by the Convention. The courts must be able to order those found guilty of corruption to compensate another State Party and to recognize, in confiscation decisions, another State Party's claim as the legitimate owner of the assets. The advantage of civil action comes to light when criminal proceedings are not possible due to the death or absence of the defendant and the establishment of responsibility is possible based on civil procedure evidence standards.
The States Parties must allow their authorities to give effect to seizure or freezing orders issued by a court of another State Party. They must also consider adopting measures that allow the confiscation, even without a criminal conviction, when the defendant cannot be prosecuted because of death or absence.
The Corruption Perception Index
The Corruption Perception Index 2019 scores and ranks countries based on how corrupt the public sector is perceived by executives, investors, academics, and scholars in the field of transparency.
The index analyzes aspects such as bribery, embezzlement of public resources, excessive bureaucracy, nepotism, and the ability of governments to contain corruption.
Transparency International makes recommendations to fight corruption. Governments promote the separation of powers, strengthen the independence of the judiciary, and preserve the system of checks and balances. For democracy to be effective in tackling corruption, governments must ensure that there are free and local. Preventing and creating sanctions against vote-buying and disinformation is essential to rebuild trust and guarantee that citizens can punish corrupt politicians at the polls. To end corruption and restore confidence in politics, it is imperative to prevent loopholes for political corruption and to foster the integrity of political systems.
Following the legacy of her mother, who was a political activist and Nobel Prize recipient Wangari Maathai, Wanjira Mathai shares three strategies to uproot a culture of corruption by teaching children and young people about leadership, purpose, and integrity. – TED (https://www.ted.com/talks/wanjira_mathai_3_ways_to_uproot_a_culture_of_corruption).
Eduardo Augusto Mansano Manso works in the Special Action Group to Combat Organized Crime of the Public Ministry of the State of Paraná, Brazil. He is also the National Leader for the International Youth Organization for Peace and Sustainability in Brazil.
Inputs and Edits by Aswin Raghav R.