United Nations Convention against Corruption
The United Nations Convention against Corruption (UNCAC) is the first
legally binding international anti-corruption instrument. In its 8
Chapters and 71 Articles, the UNCAC obliges its States Parties to
implement a wide and detailed range of anti-corruption measures
affecting their laws, institutions and practices. These measures aim
to promote the prevention, criminalization and law enforcement,
international cooperation, asset recovery, technical assistance and
information exchange, and mechanisms for implementation.
Signatures, Ratifications and Entry into Force
The UNCAC was adopted by the United Nations General Assembly in
Mérida, Yucatán, Mexico, on 31 October 2003 by Resolution 58/4. The
convention was signed by 140 countries. Ecuador became the thirtieth
country to ratify the Convention on 15 September 2005, and in
accordance with Article 68 (1) of Resolution 58/4, it entered into
force on 14 December 2005. As of 5 November 2010, the convention had
been ratified, accepted, approved or acceded by 144 countries (which
became thus States Parties to the convention).
Background
The UNCAC is the most recent of a long series of developments in which
experts and politicians have recognized the far-reaching impact of
corruption and the need to develop effective measures against it at
both the domestic and international levels. International action
against corruption has progressed from general consideration and
declarative statements to legally binding agreements. While at the
beginning of the discussion, measures were focused relatively narrowly
on specific crimes, above all bribery, the definitions and
understanding of corruption have become broader and so have the
measures against it. The Conventions' (not only the UNCAC, but the
Inter-American Convention against Corruption, the OECD Anti-Bribery
Convention, the African Union Convention on Preventing and Combating
Corruption) comprehensive approach and the mandatory character of many
of its provisions give proof of this development. The UNCAC deals with
forms of corruption that had not been covered by many of the earlier
international instruments, such as trading in official influence,
general abuses of power, and various acts of corruption in the private
sector. A further significant development was the inclusion of a
specific chapter of the Convention dealing with the recovery of
assets, a major concern for countries that pursue the assets of former
leaders and other officials accused or found to have engaged in
corruption.
Conference of the States Parties
A Conference of the States Parties (CoSP) to the UNCAC was established
to improve the capacity of and cooperation between States Parties to
achieve the objectives set forth in the Convention, and to promote and
review its implementation. The first session of the CoSP took place on
10–14 December 2006 at the Dead Sea, Jordan. At this meeting,
government representatives discussed how to follow-up on the UNCAC and
they committed themselves to establishing a formal monitoring system.
An inter-governmental working group was established to start working
on the design of such a review of implementation mechanism. Two other
working groups were set up to promote coordination of activities
related to technical assistance and asset recovery, respectively,
The second CoSP was held in Bali, Indonesia, on 28 January to 1
February 2008. As for the mechanism for review of implementation, the
States Parties decided, inter alia, to take into account a balanced
geographical approach, to avoid any adversarial or punitive elements,
to establish clear guidelines for every aspect of the mechanism and to
promote universal adherence to the Convention and the constructive
collaboration in preventive measures, asset recovery, international
cooperation and other areas. The CoSP also reiterated its support for
the Working Group on Asset Recovery, requested donors and receiving
countries to strengthen coordination and enhance technical assistance
for the implementation of the UNCAC, and dealt with the issue of
bribery of officials of public international organizations.
The next session of the CoSP took place in Doha, Qatar, from 9–13
November 2009. Pursuant to the resolutions and decisions taken by the
CoSP at its second session, the CoSP was expected to concentrate on
key issues regarding review of the implementation of the Convention,
asset recovery and technical assistance. The CoSP also offers an
opportunity to anti-corruption policymakers and practitioners to
exchange views on practical matters. Furthermore, it will be preceded
and accompanied by numerous side events, such as the last Global Forum
(in cooperation with businesses) and a Youth Forum
Measures and Provisions
The UNCAC covers five main areas: prevention, criminalization and law
enforcement measures, international cooperation, asset recovery, and
technical assistance and information exchange. It includes both
mandatory and non-mandatory provisions.
General Provisions (Chapter I, Articles 1-4)
United Nations Convention against Corruption, 2003
The opening Articles of the UNCAC include a statement of purpose
(Article1), which covers both the promotion of integrity and
accountability within each country and the support of international
cooperation and technical assistance between States Parties. They also
include definitions of critical terms used in the instrument. Some of
these are similar to those used in other instruments, and in
particular the United Nations Convention against Transnational
Organized Crime, but those defining "public official", "foreign public
official", and " official of a public international organization" are
new and are important for determining the scope of application of the
UNCAC in these areas. The UNCAC does not provide for a definition of
corruption. In accordance with Article 2 of the UN Charter, Article 4
of the UNCAC provides for the protection of national sovereignty of
the States Parties.,
Preventive Measures (Chapter II, Articles 5-14)
The First Conference of the States Parties recognized the importance
of prevention to fight corruption by going far beyond the measures of
previous instruments in both scope and detail. The preventive measures
cover both the public and private sectors. The chapter includes model
preventive policies, such as the establishment of anti-corruption
bodies and enhanced transparency in the financing of election
campaigns and political parties. Anti-corruption bodies should
implement the anti-corruption policies, disseminate knowledge and must
be independent, adequately resourced and have properly trained staff.
States are also obliged to ensure that their public services are
subject to safeguards that promote efficiency, transparency and
recruitment based on merit. Once recruited, public servants should be
bound by codes of conduct, requirements for financial and other
disclosures, and appropriate disciplinary measures. Transparency and
accountability in matters of public finance must also be promoted, and
specific requirements are established for the prevention of
corruption, in the particularly critical areas of the public sector,
such as the judiciary and public procurement. Since the combating of
corruption also depends on cooperation between the State and society,
the UNCAC places particular emphasis on the involvement of civil
society and on the general reporting process through which the public
administration reports to the people. The requirements made for the
public sector also apply to the private sector – it too is expected to
adopt transparent procedures and codes of conduct
Criminalization and Law Enforcement (Chapter III, Articles 15-44)
Chapter III calls on States Parties to establish or maintain a series
of specific criminal offences including not only long-established
crimes such as various forms of bribery and embezzlement, but also
conduct not already criminalized in many States, such as trading in
official influence and other abuses of official functions. The broad
range of ways in which corruption has manifested itself in different
countries and the novelty of some of the offences pose serious
legislative and constitutional challenges, a fact reflected in the
decision of the Ad Hoc Committee to make some of the requirements
either optional on the part of States Parties ("…shall consider
adopting…") or subject to domestic constitutional or other fundamental
requirements ("…subject to its constitution and the fundamental
principles of its legal system…").Specific acts that States Parties
must criminalize include active bribery (the offer or giving of an
undue advantage) of a national, international or foreign public
official, and passive bribery of a national public official and
embezzlement of public funds. Other mandatory crimes include
obstruction of justice, and the concealment, conversion or transfer of
criminal proceeds (money laundering). Sanctions extend to those who
participate in or attempt to commit corruption offences. The
Convention goes thus beyond previous instruments of this kind that
criminalize only basic forms of corruption. States are encouraged –
but not required – to criminalize, inter alia, passive bribery of
foreign and international public officials, trading in influence,
abuse of function, illicit enrichment, private sector bribery and
embezzlement, money laundering, and the concealment of illicit assets.
Furthermore, States Parties are required to simplify the provision of
evidence of corrupt behaviour by, inter alia, ensuring that obstacles
that may arise from the application of bank secrecy laws shall be
overcome. This is especially important as corrupt acts are very
difficult to prove before a court. Particularly important is also the
introduction of the liability of legal persons. In the area of law
enforcement, the UNCAC calls for better cooperation between national
and international bodies and with civil society. There is a provision
for the protection of witnesses, victims, expert witnesses and whistle
blowers to ensure that law enforcement is truly effective.
International Cooperation (Chapter IV, Articles 43-49)
Under Chapter IV of the UNCAC, States Parties are obliged to assist
one another in every aspect of the fight against corruption, including
prevention, investigation, and the prosecution of offenders.
Particular emphasis is laid on mutual legal assistance, in gathering
and transferring evidence for use in court, and extradition of
offenders. A key issue in developing the international cooperation
requirements arose with respect to the scope or range of offences to
which they would apply. The broad range of corruption problems faced
by many countries resulted in proposals to criminalize a wide range of
conduct. This, in turn, confronted many countries with conduct they
could not criminalize (as with the illicit enrichment offence
discussed in the previous segment) and that were made optional as a
result. Many delegations were willing to accept that others could not
criminalize specific acts of corruption for constitutional or other
fundamental reasons, but still wanted to ensure that countries that
did not criminalize such conduct would be obliged to cooperate with
other States that had done so. The result of this process was a
compromise, in which dual criminality requirements were narrowed as
much as possible within the fundamental legal requirements of the
States that cannot criminalize some of the offences established by the
Convention. According to the Convention, the principle of dual
criminality can only be insisted on where the assistance would require
coercive action such as arrest or search and seizure, and States
Parties are encouraged to allow a wider scope of assistance without
dual criminality where possible. Also, where dual criminality is
required, it is sufficient that the conduct at issue constitutes a
crime in both jurisdictions; the language of the laws need not
coincide exactly. Cooperation in criminal matters is mandatory. In
civil and administrative matters, States Parties are encouraged to do
so.
Asset Recovery (Chapter V, Articles 51-59)Main article:
International asset recovery
The agreement on asset recovery is considered a major breakthrough and
many observers claim that it is also the reason for why so many
developing countries have signed the UNCAC.Asset recovery is indeed a
very important issue for many developing countries where high-level
corruption has plundered the national wealth. Reaching an agreement on
this Chapter involved intensive negotiations, as the needs of
countries seeking the illicit assets had to be reconciled with the
legal and procedural safeguards of the countries whose assistance was
sought. Generally, countries seeking assets sought to establish
presumptions that would make clear their ownership of the assets and
give priority for return over other means of disposal. Countries from
which return was likely to be sought, on the other hand, had concerns
about the language that might have compromised basic human rights and
procedural protections associated with criminal liability and the
freezing, seizure, forfeiture and return of such assets.
Chapter V of the UNCAC establishes asset recovery as a "fundamental
principle" of the Convention. The provisions on asset recovery lay a
framework, in both civil and criminal law, for 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.
If no other arrangement is in place, UNCAC signatories may use the
Convention itself as a legal basis for enforcing confiscation orders
obtained in a foreign criminal court. Specifically, Article 54(1)(a)
of the UNCAC provides that: "Each State Party (shall)... take such
measures as may be necessary to permit its competent authorities to
give effect to an order of confiscation issued by a court of another
state party"
United Nations Convention against Corruption Article 54 Section
1A,2A. Indeed, Article 54(2)(a) of the UNCAC also provides for the
provisional freezing or seizing of property where there are sufficient
grounds for taking such actions in advance of a formal request being
received.
Recognizing that recovering assets once transferred and concealed is
an exceedingly costly, complex and all-too-often unsuccessful process,
this Chapter also incorporates elements intended to prevent illicit
transfers and generate records that can be used where illicit
transfers eventually have to be traced, frozen, seized and confiscated
(Article 52). The identification of experts who can assist developing
countries in this process is also included as a form of technical
assistance (Article 60(5)).
Technical Assistance and Information Exchange (Chapter VI, Articles 60-62)
Chapter VI of the UNCAC is dedicated to technical assistance, meaning
support offered to developing and transition countries in implementing
the Convention. The provisions cover training, material and human
resources, research, and information sharing. The Convention also
calls for cooperation through international and regional organizations
(many of who already have established anti-corruption programmes),
research efforts, and the contribution of financial resources both
directly to developing countries and countries with economies in
transition, and to the United Nations Office on Drugs and
Crime,(UNODC), which is the Secretariat to the Conference of the
States Parties.
Mechanisms for Implementation (Chapter VII, Articles 63-64)Chapter
VII deals with international implementation through the CoSP and the
UN Secretariat.
Final Provisions (Chapter VIII, Articles 65 – 71)The final provisions
are similar to those found in other UN treaties. Key provisions ensure
that: the UNCAC requirements are to be interpreted as minimum
standards, which States Parties are free to exceed with measures "more
strict or severe" than those set out in the specific provisions; and
the two Articles governing signature, ratification and the coming into
force of the Convention.
Implementation of the UNCAC and Monitoring MechanismArticle 63 of the
UNCAC establishes a CoSP with a mandate to, inter alia, promote and
review the implementation of the Convention. In accordance with
Article 63(7), "the Conference shall establish, if it deems necessary,
any appropriate mechanism or body to assist in the effective
implementation of the Convention". At its first session, held in
Jordan in December 2006, the CoSP agreed that it was necessary to
establish an appropriate and effective mechanism to assist in the
review of the implementation of the Convention (Resolution 1/1). The
Conference established an open-ended intergovernmental expert group to
make recommendations to the Conference on the appropriate mechanism,
which should allow the Conference to discharge fully and efficiently
its mandates, in particular with respect to taking stock of States'
efforts to implement the Convention. The Conference also requested the
Secretariat to assist States in their efforts to collect and provide
information on their self-assessment and their analysis of
implementation efforts and to report on those efforts to the
Conference. In addition, several countries, already during this
session of the CoSP, expressed their readiness to support, on an
interim basis, a review mechanism that would combine the
self-assessment component with a review process supported by the
Secretariat. The "Pilot Review Programme" was established to offer
adequate opportunity to test possible means for the implementation
review of the UNCAC, with the overall objective to evaluate efficiency
and effectiveness of the tested mechanism(s) and to provide to the
CoSP information on lessons learnt and experience acquired, thus
enabling the CoSP to make informed decisions on the establishment of
the appropriate mechanism for reviewing the implementation of the
UNCAC. The Pilot Programme is an interim measure to help fine-tune the
course of action. It is strictly voluntary and limited in scope and
time. The methodology used under the Pilot Review Programme was to
conduct a limited review of the implementation of UNCAC in the
participating countries using a combined self-assessment / group /
expert review method as possible mechanism(s) for reviewing the
implementation of the Convention. Throughout the review process,
members of the Group engage with the individual country under review
in an active dialogue, discussing preliminary findings and requesting
additional information. Where requested, country visits are conducted
to assist in undertaking the self-assessments and/or preparing the
recommendations. The teams conducting the country visits will be
composed of experts from two prior agreed upon countries from the
Group and two members of the Secretariat. The scope of review under
the Pilot Review Programme includes Articles: 5 (preventive
anti-corruption policies and practices); 15 (bribery of national
public officials); 16 (bribery of foreign public officials and
officials of public international organizations); 17 (embezzlement,
misappropriation or other diversion of property by a public official);
25 (obstruction of justice); 46 (mutual legal assistance),
particularly paragraphs 13 and 9; 52 (prevention and detection of
transfers of proceeds of crime); and 53 (measures for direct recovery
of property).
UNCAC Coalition of Civil Society Organisations
The "UNCAC Coalition", established in 2006, is a network of more than
200 civil society organisations (CSOs) that is committed to promoting
the ratification, implementation and monitoring of the UNCAC. It aims
to mobilise broad civil society support for the UNCAC and to
facilitate strong civil society action at national, regional and
international levels in support of the Convention. The Coalition is
open to all organisations and individuals committed to these goals.
The breadth of UNCAC means that its framework is relevant for a wide
range of CSOs, including groups working in the areas of human rights,
labour rights, governance, economic development, environment and
private sector accountability.
In addition, the main function of the International Anti-Corruption
Academy, located in Laxenburg, Austria, is to, inter alia, facilitate
more effective implementation of the UNCAC.
ChallengesIn general, the adoption of an effective follow-up
monitoring mechanism is often considered to be one of the biggest
challenges that still lies ahead. Many developing countries also face
the challenge of implementing the demanding provisions of the UNCAC
into national law, and above all into the reality of daily life.
Effective technical assistance, as foreseen in the UNCAC, is therefore
crucial for the successful implementation of the Convention.
--
उर्वशी शर्मा
"सूचना का अधिकार " हेल्पलाइन: 8081898081
yaishwaryaj@gmail.com
http://www.unodc.org/pdf/crime/convention_corruption/signing/Convention-e.pdf
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United Nations Convention against Corruption
Preamble
The States Parties to this Convention,
Concerned about the seriousness of problems and threats posed by corruption
to the stability and security of societies, undermining the
institutions and values of
democracy, ethical values and justice and jeopardizing sustainable
development and
the rule of law,
Concerned also about the links between corruption and other forms of crime,
in particular organized crime and economic crime, including money-laundering,
Concerned further about cases of corruption that involve vast quantities of
assets, which may constitute a substantial proportion of the resources
of States, and
that threaten the political stability and sustainable development of
those States,
Convinced that corruption is no longer a local matter but a transnational
phenomenon that affects all societies and economies, making international
cooperation to prevent and control it essential,
Convinced also that a comprehensive and multidisciplinary approach is
required to prevent and combat corruption effectively,
Convinced further that the availability of technical assistance can play an
important role in enhancing the ability of States, including by strengthening
capacity and by institution-building, to prevent and combat corruption
effectively,
Convinced that the illicit acquisition of personal wealth can be particularly
damaging to democratic institutions, national economies and the rule of law,
Determined to prevent, detect and deter in a more effective manner
international transfers of illicitly acquired assets and to strengthen
international
cooperation in asset recovery,
Acknowledging the fundamental principles of due process of law in criminal
proceedings and in civil or administrative proceedings to adjudicate
property rights,
Bearing in mind that the prevention and eradication of corruption is a
responsibility of all States and that they must cooperate with one
another, with the
support and involvement of individuals and groups outside the public
sector, such as
civil society, non-governmental organizations and community-based organizations,
if their efforts in this area are to be effective,
Bearing also in mind the principles of proper management of public affairs
and public property, fairness, responsibility and equality before the
law and the need
to safeguard integrity and to foster a culture of rejection of corruption,
Commending the work of the Commission on Crime Prevention and Criminal
Justice and the United Nations Office on Drugs and Crime in preventing and
combating corruption,
2
Recalling the work carried out by other international and regional
organizations in this field, including the activities of the African
Union, the Council
of Europe, the Customs Cooperation Council (also known as the World Customs
Organization), the European Union, the League of Arab States, the
Organisation for
Economic Cooperation and Development and the Organization of American States,
Taking note with appreciation of multilateral instruments to prevent and
combat corruption, including, inter alia, the Inter-American Convention against
Corruption, adopted by the Organization of American States on 29 March
1996,1 the
Convention on the Fight against Corruption involving Officials of the European
Communities or Officials of Member States of the European Union, adopted by the
Council of the European Union on 26 May 1997,2 the Convention on Combating
Bribery of Foreign Public Officials in International Business
Transactions, adopted
by the Organisation for Economic Cooperation and Development on 21 November
1997,3 the Criminal Law Convention on Corruption, adopted by the Committee of
Ministers of the Council of Europe on 27 January 1999,4 the Civil Law Convention
on Corruption, adopted by the Committee of Ministers of the Council of Europe on
4 November 1999,5 and the African Union Convention on Preventing and
Combating Corruption, adopted by the Heads of State and Government of the
African Union on 12 July 2003,
Welcoming the entry into force on 29 September 2003 of the United Nations
Convention against Transnational Organized Crime,6
Have agreed as follows:
Chapter I
General provisions
Article 1
Statement of purpose
The purposes of this Convention are:
(a) To promote and strengthen measures to prevent and combat corruption
more efficiently and effectively;
(b) To promote, facilitate and support international cooperation and technical
assistance in the prevention of and fight against corruption, including in asset
recovery;
(c) To promote integrity, accountability and proper management of public
affairs and public property.
__________________
1 See E/1996/99.
2 Official Journal of the European Communities, C 195, 25 June 1997.
3 See Corruption and Integrity Improvement Initiatives in Developing
Countries (United Nations
publication, Sales No. E.98.III.B.18).
4 Council of Europe, European Treaty Series, No. 173.
5 Ibid., No. 174.
6 General Assembly resolution 55/25, annex I.
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Article 2
Use of terms
For the purposes of this Convention:
(a) "Public official" shall mean: (i) any person holding a legislative,
executive, administrative or judicial office of a State Party, whether
appointed or
elected, whether permanent or temporary, whether paid or unpaid, irrespective of
that person's seniority; (ii) any other person who performs a public function,
including for a public agency or public enterprise, or provides a
public service, as
defined in the domestic law of the State Party and as applied in the
pertinent area of
law of that State Party; (iii) any other person defined as a "public
official" in the
domestic law of a State Party. However, for the purpose of some
specific measures
contained in chapter II of this Convention, "public official" may mean
any person
who performs a public function or provides a public service as defined in the
domestic law of the State Party and as applied in the pertinent area
of law of that
State Party;
(b) "Foreign public official" shall mean any person holding a legislative,
executive, administrative or judicial office of a foreign country,
whether appointed
or elected; and any person exercising a public function for a foreign country,
including for a public agency or public enterprise;
(c) "Official of a public international organization" shall mean an
international civil servant or any person who is authorized by such an
organization
to act on behalf of that organization;
(d) "Property" shall mean assets of every kind, whether corporeal or
incorporeal, movable or immovable, tangible or intangible, and legal
documents or
instruments evidencing title to or interest in such assets;
(e) "Proceeds of crime" shall mean any property derived from or obtained,
directly or indirectly, through the commission of an offence;
(f) "Freezing" or "seizure" shall mean temporarily prohibiting the transfer,
conversion, disposition or movement of property or temporarily assuming custody
or control of property on the basis of an order issued by a court or
other competent
authority;
(g) "Confiscation", which includes forfeiture where applicable, shall mean
the permanent deprivation of property by order of a court or other competent
authority;
(h) "Predicate offence" shall mean any offence as a result of which proceeds
have been generated that may become the subject of an offence as defined in
article 23 of this Convention;
(i) "Controlled delivery" shall mean the technique of allowing illicit or
suspect consignments to pass out of, through or into the territory of
one or more
States, with the knowledge and under the supervision of their
competent authorities,
with a view to the investigation of an offence and the identification of persons
involved in the commission of the offence.
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Article 3
Scope of application
1. This Convention shall apply, in accordance with its terms, to the
prevention, investigation and prosecution of corruption and to the
freezing, seizure,
confiscation and return of the proceeds of offences established in
accordance with
this Convention.
2. For the purposes of implementing this Convention, it shall not be
necessary, except as otherwise stated herein, for the offences set
forth in it to result
in damage or harm to state property.
Article 4
Protection of sovereignty
1. States Parties shall carry out their obligations under this Convention in a
manner consistent with the principles of sovereign equality and
territorial integrity
of States and that of non-intervention in the domestic affairs of other States.
2. Nothing in this Convention shall entitle a State Party to undertake in the
territory of another State the exercise of jurisdiction and
performance of functions
that are reserved exclusively for the authorities of that other State
by its domestic
law.
Chapter II
Preventive measures
Article 5
Preventive anti-corruption policies and practices
1. Each State Party shall, in accordance with the fundamental principles of
its legal system, develop and implement or maintain effective,
coordinated anticorruption
policies that promote the participation of society and reflect the
principles of the rule of law, proper management of public affairs and public
property, integrity, transparency and accountability.
2. Each State Party shall endeavour to establish and promote effective
practices aimed at the prevention of corruption.
3. Each State Party shall endeavour to periodically evaluate relevant legal
instruments and administrative measures with a view to determining
their adequacy
to prevent and fight corruption.
4. States Parties shall, as appropriate and in accordance with the
fundamental principles of their legal system, collaborate with each
other and with
relevant international and regional organizations in promoting and
developing the
measures referred to in this article. That collaboration may include
participation in
international programmes and projects aimed at the prevention of corruption.
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Article 6
Preventive anti-corruption body or bodies
1. Each State Party shall, in accordance with the fundamental principles of
its legal system, ensure the existence of a body or bodies, as appropriate, that
prevent corruption by such means as:
(a) Implementing the policies referred to in article 5 of this Convention and,
where appropriate, overseeing and coordinating the implementation of those
policies;
(b) Increasing and disseminating knowledge about the prevention of
corruption.
2. Each State Party shall grant the body or bodies referred to in paragraph 1
of this article the necessary independence, in accordance with the fundamental
principles of its legal system, to enable the body or bodies to carry
out its or their
functions effectively and free from any undue influence. The necessary material
resources and specialized staff, as well as the training that such
staff may require to
carry out their functions, should be provided.
3. Each State Party shall inform the Secretary-General of the United
Nations of the name and address of the authority or authorities that
may assist other
States Parties in developing and implementing specific measures for
the prevention
of corruption.
Article 7
Public sector
1. Each State Party shall, where appropriate and in accordance with the
fundamental principles of its legal system, endeavour to adopt, maintain and
strengthen systems for the recruitment, hiring, retention, promotion
and retirement
of civil servants and, where appropriate, other non-elected public officials:
(a) That are based on principles of efficiency, transparency and objective
criteria such as merit, equity and aptitude;
(b) That include adequate procedures for the selection and training of
individuals for public positions considered especially vulnerable to
corruption and
the rotation, where appropriate, of such individuals to other positions;
(c) That promote adequate remuneration and equitable pay scales, taking
into account the level of economic development of the State Party;
(d) That promote education and training programmes to enable them to meet
the requirements for the correct, honourable and proper performance of public
functions and that provide them with specialized and appropriate
training to enhance
their awareness of the risks of corruption inherent in the performance of their
functions. Such programmes may make reference to codes or standards of conduct
in applicable areas.
2. Each State Party shall also consider adopting appropriate legislative and
administrative measures, consistent with the objectives of this
Convention and in
accordance with the fundamental principles of its domestic law, to
prescribe criteria
concerning candidature for and election to public office.
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3. Each State Party shall also consider taking appropriate legislative and
administrative measures, consistent with the objectives of this
Convention and in
accordance with the fundamental principles of its domestic law, to enhance
transparency in the funding of candidatures for elected public office and, where
applicable, the funding of political parties.
4. Each State Party shall, in accordance with the fundamental principles of
its domestic law, endeavour to adopt, maintain and strengthen systems
that promote
transparency and prevent conflicts of interest.
Article 8
Codes of conduct for public officials
1. In order to fight corruption, each State Party shall promote, inter alia,
integrity, honesty and responsibility among its public officials, in
accordance with
the fundamental principles of its legal system.
2. In particular, each State Party shall endeavour to apply, within its own
institutional and legal systems, codes or standards of conduct for the correct,
honourable and proper performance of public functions.
3. For the purposes of implementing the provisions of this article, each
State Party shall, where appropriate and in accordance with the fundamental
principles of its legal system, take note of the relevant initiatives
of regional,
interregional and multilateral organizations, such as the International Code of
Conduct for Public Officials contained in the annex to General Assembly
resolution 51/59 of 12 December 1996.
4. Each State Party shall also consider, in accordance with the fundamental
principles of its domestic law, establishing measures and systems to
facilitate the
reporting by public officials of acts of corruption to appropriate
authorities, when
such acts come to their notice in the performance of their functions.
5. Each State Party shall endeavour, where appropriate and in accordance
with the fundamental principles of its domestic law, to establish measures and
systems requiring public officials to make declarations to appropriate
authorities
regarding, inter alia, their outside activities, employment,
investments, assets and
substantial gifts or benefits from which a conflict of interest may
result with respect
to their functions as public officials.
6. Each State Party shall consider taking, in accordance with the
fundamental principles of its domestic law, disciplinary or other
measures against
public officials who violate the codes or standards established in
accordance with
this article.
Article 9
Public procurement and management of public finances
1. Each State Party shall, in accordance with the fundamental principles of
its legal system, take the necessary steps to establish appropriate systems of
procurement, based on transparency, competition and objective criteria in
decision-making, that are effective, inter alia, in preventing corruption. Such
systems, which may take into account appropriate threshold values in their
application, shall address, inter alia:
7
(a) The public distribution of information relating to procurement
procedures and contracts, including information on invitations to tender and
relevant or pertinent information on the award of contracts, allowing potential
tenderers sufficient time to prepare and submit their tenders;
(b) The establishment, in advance, of conditions for participation, including
selection and award criteria and tendering rules, and their publication;
(c) The use of objective and predetermined criteria for public procurement
decisions, in order to facilitate the subsequent verification of the
correct application
of the rules or procedures;
(d) An effective system of domestic review, including an effective system of
appeal, to ensure legal recourse and remedies in the event that the rules or
procedures established pursuant to this paragraph are not followed;
(e) Where appropriate, measures to regulate matters regarding personnel
responsible for procurement, such as declaration of interest in
particular public
procurements, screening procedures and training requirements.
2. Each State Party shall, in accordance with the fundamental principles of
its legal system, take appropriate measures to promote transparency and
accountability in the management of public finances. Such measures shall
encompass, inter alia:
(a) Procedures for the adoption of the national budget;
(b) Timely reporting on revenue and expenditure;
(c) A system of accounting and auditing standards and related oversight;
(d) Effective and efficient systems of risk management and internal control; and
(e) Where appropriate, corrective action in the case of failure to comply with
the requirements established in this paragraph.
3. Each State Party shall take such civil and administrative measures as may
be necessary, in accordance with the fundamental principles of its
domestic law, to
preserve the integrity of accounting books, records, financial
statements or other
documents related to public expenditure and revenue and to prevent the
falsification
of such documents.
Article 10
Public reporting
Taking into account the need to combat corruption, each State Party shall, in
accordance with the fundamental principles of its domestic law, take
such measures
as may be necessary to enhance transparency in its public
administration, including
with regard to its organization, functioning and decision-making
processes, where
appropriate. Such measures may include, inter alia:
(a) Adopting procedures or regulations allowing members of the general
public to obtain, where appropriate, information on the organization,
functioning
and decision-making processes of its public administration and, with
due regard for
the protection of privacy and personal data, on decisions and legal
acts that concern
members of the public;
8
(b) Simplifying administrative procedures, where appropriate, in order to
facilitate public access to the competent decision-making authorities; and
(c) Publishing information, which may include periodic reports on the risks
of corruption in its public administration.
Article 11
Measures relating to the judiciary and prosecution services
1. Bearing in mind the independence of the judiciary and its crucial role in
combating corruption, each State Party shall, in accordance with the fundamental
principles of its legal system and without prejudice to judicial
independence, take
measures to strengthen integrity and to prevent opportunities for
corruption among
members of the judiciary. Such measures may include rules with respect to the
conduct of members of the judiciary.
2. Measures to the same effect as those taken pursuant to paragraph 1 of
this article may be introduced and applied within the prosecution
service in those
States Parties where it does not form part of the judiciary but enjoys
independence
similar to that of the judicial service.
Article 12
Private sector
1. Each State Party shall take measures, in accordance with the fundamental
principles of its domestic law, to prevent corruption involving the
private sector,
enhance accounting and auditing standards in the private sector and, where
appropriate, provide effective, proportionate and dissuasive civil,
administrative or
criminal penalties for failure to comply with such measures.
2. Measures to achieve these ends may include, inter alia:
(a) Promoting cooperation between law enforcement agencies and relevant
private entities;
(b) Promoting the development of standards and procedures designed to
safeguard the integrity of relevant private entities, including codes
of conduct for
the correct, honourable and proper performance of the activities of
business and all
relevant professions and the prevention of conflicts of interest, and for the
promotion of the use of good commercial practices among businesses and in the
contractual relations of businesses with the State;
(c) Promoting transparency among private entities, including, where
appropriate, measures regarding the identity of legal and natural
persons involved in
the establishment and management of corporate entities;
(d) Preventing the misuse of procedures regulating private entities, including
procedures regarding subsidies and licences granted by public authorities for
commercial activities;
(e) Preventing conflicts of interest by imposing restrictions, as appropriate
and for a reasonable period of time, on the professional activities of
former public
officials or on the employment of public officials by the private
sector after their
resignation or retirement, where such activities or employment relate
directly to the
functions held or supervised by those public officials during their tenure;
9
(f) Ensuring that private enterprises, taking into account their structure and
size, have sufficient internal auditing controls to assist in
preventing and detecting
acts of corruption and that the accounts and required financial
statements of such
private enterprises are subject to appropriate auditing and
certification procedures.
3. In order to prevent corruption, each State Party shall take such measures
as may be necessary, in accordance with its domestic laws and
regulations regarding
the maintenance of books and records, financial statement disclosures and
accounting and auditing standards, to prohibit the following acts
carried out for the
purpose of committing any of the offences established in accordance with this
Convention:
(a) The establishment of off-the-books accounts;
(b) The making of off-the-books or inadequately identified transactions;
(c) The recording of non-existent expenditure;
(d) The entry of liabilities with incorrect identification of their objects;
(e) The use of false documents; and
(f) The intentional destruction of bookkeeping documents earlier than
foreseen by the law.
4. Each State Party shall disallow the tax deductibility of expenses that
constitute bribes, the latter being one of the constituent elements of
the offences
established in accordance with articles 15 and 16 of this Convention and, where
appropriate, other expenses incurred in furtherance of corrupt conduct.
Article 13
Participation of society
1. Each State Party shall take appropriate measures, within its means and in
accordance with fundamental principles of its domestic law, to promote
the active
participation of individuals and groups outside the public sector, such as civil
society, non-governmental organizations and community-based
organizations, in the
prevention of and the fight against corruption and to raise public awareness
regarding the existence, causes and gravity of and the threat posed by
corruption.
This participation should be strengthened by such measures as:
(a) Enhancing the transparency of and promoting the contribution of the
public to decision-making processes;
(b) Ensuring that the public has effective access to information;
(c) Undertaking public information activities that contribute to non-tolerance
of corruption, as well as public education programmes, including school and
university curricula;
(d) Respecting, promoting and protecting the freedom to seek, receive,
publish and disseminate information concerning corruption. That freedom may be
subject to certain restrictions, but these shall only be such as are
provided for by law
and are necessary:
(i) For respect of the rights or reputations of others;
10
(ii) For the protection of national security or ordre public or of public health
or morals.
2. Each State Party shall take appropriate measures to ensure that the
relevant anti-corruption bodies referred to in this Convention are known to the
public and shall provide access to such bodies, where appropriate, for
the reporting,
including anonymously, of any incidents that may be considered to constitute an
offence established in accordance with this Convention.
Article 14
Measures to prevent money-laundering
1. Each State Party shall:
(a) Institute a comprehensive domestic regulatory and supervisory regime
for banks and non-bank financial institutions, including natural or
legal persons that
provide formal or informal services for the transmission of money or value and,
where appropriate, other bodies particularly susceptible to money-laundering,
within its competence, in order to deter and detect all forms of
money-laundering,
which regime shall emphasize requirements for customer and, where appropriate,
beneficial owner identification, record-keeping and the reporting of suspicious
transactions;
(b) Without prejudice to article 46 of this Convention, ensure that
administrative, regulatory, law enforcement and other authorities dedicated to
combating money-laundering (including, where appropriate under domestic law,
judicial authorities) have the ability to cooperate and exchange
information at the
national and international levels within the conditions prescribed by
its domestic
law and, to that end, shall consider the establishment of a financial
intelligence unit
to serve as a national centre for the collection, analysis and dissemination of
information regarding potential money-laundering.
2. States Parties shall consider implementing feasible measures to detect
and monitor the movement of cash and appropriate negotiable instruments across
their borders, subject to safeguards to ensure proper use of
information and without
impeding in any way the movement of legitimate capital. Such measures may
include a requirement that individuals and businesses report the cross-border
transfer of substantial quantities of cash and appropriate negotiable
instruments.
3. States Parties shall consider implementing appropriate and feasible
measures to require financial institutions, including money remitters:
(a) To include on forms for the electronic transfer of funds and related
messages accurate and meaningful information on the originator;
(b) To maintain such information throughout the payment chain; and
(c) To apply enhanced scrutiny to transfers of funds that do not contain
complete information on the originator.
4. In establishing a domestic regulatory and supervisory regime under the
terms of this article, and without prejudice to any other article of
this Convention,
States Parties are called upon to use as a guideline the relevant initiatives of
regional, interregional and multilateral organizations against money-laundering.
11
5. States Parties shall endeavour to develop and promote global, regional,
subregional and bilateral cooperation among judicial, law enforcement
and financial
regulatory authorities in order to combat money-laundering.
Chapter III
Criminalization and law enforcement
Article 15
Bribery of national public officials
Each State Party shall adopt such legislative and other measures as may be
necessary to establish as criminal offences, when committed intentionally:
(a) The promise, offering or giving, to a public official, directly or
indirectly,
of an undue advantage, for the official himself or herself or another
person or entity,
in order that the official act or refrain from acting in the exercise
of his or her
official duties;
(b) The solicitation or acceptance by a public official, directly or indirectly,
of an undue advantage, for the official himself or herself or another
person or entity,
in order that the official act or refrain from acting in the exercise
of his or her
official duties.
Article 16
Bribery of foreign public officials and officials of
public international organizations
1. Each State Party shall adopt such legislative and other measures as may
be necessary to establish as a criminal offence, when committed
intentionally, the
promise, offering or giving to a foreign public official or an
official of a public
international organization, directly or indirectly, of an undue
advantage, for the
official himself or herself or another person or entity, in order that
the official act or
refrain from acting in the exercise of his or her official duties, in
order to obtain or
retain business or other undue advantage in relation to the conduct of
international
business.
2. Each State Party shall consider adopting such legislative and other
measures as may be necessary to establish as a criminal offence, when committed
intentionally, the solicitation or acceptance by a foreign public
official or an official
of a public international organization, directly or indirectly, of an
undue advantage,
for the official himself or herself or another person or entity, in
order that the official
act or refrain from acting in the exercise of his or her official duties.
Article 17
Embezzlement, misappropriation or other diversion
of property by a public official
Each State Party shall adopt such legislative and other measures as may be
necessary to establish as criminal offences, when committed intentionally, the
embezzlement, misappropriation or other diversion by a public official
for his or her
benefit or for the benefit of another person or entity, of any
property, public or
12
private funds or securities or any other thing of value entrusted to
the public official
by virtue of his or her position.
Article 18
Trading in influence
Each State Party shall consider adopting such legislative and other measures as
may be necessary to establish as criminal offences, when committed
intentionally:
(a) The promise, offering or giving to a public official or any other person,
directly or indirectly, of an undue advantage in order that the public
official or the
person abuse his or her real or supposed influence with a view to
obtaining from an
administration or public authority of the State Party an undue advantage for the
original instigator of the act or for any other person;
(b) The solicitation or acceptance by a public official or any other person,
directly or indirectly, of an undue advantage for himself or herself
or for another
person in order that the public official or the person abuse his or her real or
supposed influence with a view to obtaining from an administration or public
authority of the State Party an undue advantage.
Article 19
Abuse of functions
Each State Party shall consider adopting such legislative and other measures as
may be necessary to establish as a criminal offence, when committed
intentionally,
the abuse of functions or position, that is, the performance of or
failure to perform
an act, in violation of laws, by a public official in the discharge of
his or her
functions, for the purpose of obtaining an undue advantage for himself
or herself or
for another person or entity.
Article 20
Illicit enrichment
Subject to its constitution and the fundamental principles of its legal system,
each State Party shall consider adopting such legislative and other
measures as may
be necessary to establish as a criminal offence, when committed
intentionally, illicit
enrichment, that is, a significant increase in the assets of a public
official that he or
she cannot reasonably explain in relation to his or her lawful income.
Article 21
Bribery in the private sector
Each State Party shall consider adopting such legislative and other measures as
may be necessary to establish as criminal offences, when committed
intentionally in
the course of economic, financial or commercial activities:
(a) The promise, offering or giving, directly or indirectly, of an undue
advantage to any person who directs or works, in any capacity, for a
private sector
entity, for the person himself or herself or for another person, in
order that he or she,
in breach of his or her duties, act or refrain from acting;
(b) The solicitation or acceptance, directly or indirectly, of an undue
advantage by any person who directs or works, in any capacity, for a
private sector
13
entity, for the person himself or herself or for another person, in
order that he or she,
in breach of his or her duties, act or refrain from acting.
Article 22
Embezzlement of property in the private sector
Each State Party shall consider adopting such legislative and other measures as
may be necessary to establish as a criminal offence, when committed
intentionally
in the course of economic, financial or commercial activities, embezzlement by a
person who directs or works, in any capacity, in a private sector entity of any
property, private funds or securities or any other thing of value
entrusted to him or
her by virtue of his or her position.
Article 23
Laundering of proceeds of crime
1. Each State Party shall adopt, in accordance with fundamental principles
of its domestic law, such legislative and other measures as may be necessary to
establish as criminal offences, when committed intentionally:
(a) (i) The conversion or transfer of property, knowing that such property
is the proceeds of crime, for the purpose of concealing or disguising
the illicit
origin of the property or of helping any person who is involved in the
commission of the predicate offence to evade the legal consequences of his or
her action;
(ii) The concealment or disguise of the true nature, source, location,
disposition, movement or ownership of or rights with respect to property,
knowing that such property is the proceeds of crime;
(b) Subject to the basic concepts of its legal system:
(i) The acquisition, possession or use of property, knowing, at the time of
receipt, that such property is the proceeds of crime;
(ii) Participation in, association with or conspiracy to commit, attempts to
commit and aiding, abetting, facilitating and counselling the commission of
any of the offences established in accordance with this article.
2. For purposes of implementing or applying paragraph 1 of this article:
(a) Each State Party shall seek to apply paragraph 1 of this article to the
widest range of predicate offences;
(b) Each State Party shall include as predicate offences at a minimum a
comprehensive range of criminal offences established in accordance with this
Convention;
(c) For the purposes of subparagraph (b) above, predicate offences shall
include offences committed both within and outside the jurisdiction of the State
Party in question. However, offences committed outside the
jurisdiction of a State
Party shall constitute predicate offences only when the relevant conduct is a
criminal offence under the domestic law of the State where it is committed and
would be a criminal offence under the domestic law of the State Party
implementing
or applying this article had it been committed there;
14
(d) Each State Party shall furnish copies of its laws that give effect to this
article and of any subsequent changes to such laws or a description
thereof to the
Secretary-General of the United Nations;
(e) If required by fundamental principles of the domestic law of a State
Party, it may be provided that the offences set forth in paragraph 1
of this article do
not apply to the persons who committed the predicate offence.
Article 24
Concealment
Without prejudice to the provisions of article 23 of this Convention, each State
Party shall consider adopting such legislative and other measures as may be
necessary to establish as a criminal offence, when committed
intentionally after the
commission of any of the offences established in accordance with this Convention
without having participated in such offences, the concealment or
continued retention
of property when the person involved knows that such property is the
result of any
of the offences established in accordance with this Convention.
Article 25
Obstruction of justice
Each State Party shall adopt such legislative and other measures as may be
necessary to establish as criminal offences, when committed intentionally:
(a) The use of physical force, threats or intimidation or the promise, offering
or giving of an undue advantage to induce false testimony or to interfere in the
giving of testimony or the production of evidence in a proceeding in
relation to the
commission of offences established in accordance with this Convention;
(b) The use of physical force, threats or intimidation to interfere with the
exercise of official duties by a justice or law enforcement official
in relation to the
commission of offences established in accordance with this Convention.
Nothing in
this subparagraph shall prejudice the right of States Parties to have
legislation that
protects other categories of public official.
Article 26
Liability of legal persons
1. Each State Party shall adopt such measures as may be necessary,
consistent with its legal principles, to establish the liability of
legal persons for
participation in the offences established in accordance with this Convention.
2. Subject to the legal principles of the State Party, the liability of legal
persons may be criminal, civil or administrative.
3. Such liability shall be without prejudice to the criminal liability of the
natural persons who have committed the offences.
4. Each State Party shall, in particular, ensure that legal persons held liable
in accordance with this article are subject to effective,
proportionate and dissuasive
criminal or non-criminal sanctions, including monetary sanctions.
15
Article 27
Participation and attempt
1. Each State Party shall adopt such legislative and other measures as may
be necessary to establish as a criminal offence, in accordance with
its domestic law,
participation in any capacity such as an accomplice, assistant or
instigator in an
offence established in accordance with this Convention.
2. Each State Party may adopt such legislative and other measures as may
be necessary to establish as a criminal offence, in accordance with
its domestic law,
any attempt to commit an offence established in accordance with this Convention.
3. Each State Party may adopt such legislative and other measures as may
be necessary to establish as a criminal offence, in accordance with
its domestic law,
the preparation for an offence established in accordance with this Convention.
Article 28
Knowledge, intent and purpose as elements of an offence
Knowledge, intent or purpose required as an element of an offence established
in accordance with this Convention may be inferred from objective factual
circumstances.
Article 29
Statute of limitations
Each State Party shall, where appropriate, establish under its domestic law a
long statute of limitations period in which to commence proceedings
for any offence
established in accordance with this Convention and establish a longer statute of
limitations period or provide for the suspension of the statute of
limitations where
the alleged offender has evaded the administration of justice.
Article 30
Prosecution, adjudication and sanctions
1. Each State Party shall make the commission of an offence established in
accordance with this Convention liable to sanctions that take into account the
gravity of that offence.
2. Each State Party shall take such measures as may be necessary to
establish or maintain, in accordance with its legal system and constitutional
principles, an appropriate balance between any immunities or jurisdictional
privileges accorded to its public officials for the performance of
their functions and
the possibility, when necessary, of effectively investigating, prosecuting and
adjudicating offences established in accordance with this Convention.
3. Each State Party shall endeavour to ensure that any discretionary legal
powers under its domestic law relating to the prosecution of persons
for offences
established in accordance with this Convention are exercised to maximize the
effectiveness of law enforcement measures in respect of those offences
and with due
regard to the need to deter the commission of such offences.
4. In the case of offences established in accordance with this Convention,
each State Party shall take appropriate measures, in accordance with
its domestic
16
law and with due regard to the rights of the defence, to seek to ensure that
conditions imposed in connection with decisions on release pending
trial or appeal
take into consideration the need to ensure the presence of the defendant at
subsequent criminal proceedings.
5. Each State Party shall take into account the gravity of the offences
concerned when considering the eventuality of early release or parole of persons
convicted of such offences.
6. Each State Party, to the extent consistent with the fundamental principles
of its legal system, shall consider establishing procedures through
which a public
official accused of an offence established in accordance with this
Convention may,
where appropriate, be removed, suspended or reassigned by the appropriate
authority, bearing in mind respect for the principle of the
presumption of innocence.
7. Where warranted by the gravity of the offence, each State Party, to the
extent consistent with the fundamental principles of its legal system,
shall consider
establishing procedures for the disqualification, by court order or any other
appropriate means, for a period of time determined by its domestic
law, of persons
convicted of offences established in accordance with this Convention from:
(a) Holding public office; and
(b) Holding office in an enterprise owned in whole or in part by the State.
8. Paragraph 1 of this article shall be without prejudice to the exercise of
disciplinary powers by the competent authorities against civil servants.
9. Nothing contained in this Convention shall affect the principle that the
description of the offences established in accordance with this
Convention and of
the applicable legal defences or other legal principles controlling
the lawfulness of
conduct is reserved to the domestic law of a State Party and that such
offences shall
be prosecuted and punished in accordance with that law.
10. States Parties shall endeavour to promote the reintegration into society of
persons convicted of offences established in accordance with this Convention.
Article 31
Freezing, seizure and confiscation
1. Each State Party shall take, to the greatest extent possible within its
domestic legal system, such measures as may be necessary to enable confiscation
of:
(a) Proceeds of crime derived from offences established in accordance with
this Convention or property the value of which corresponds to that of
such proceeds;
(b) Property, equipment or other instrumentalities used in or destined for use
in offences established in accordance with this Convention.
2. Each State Party shall take such measures as may be necessary to enable
the identification, tracing, freezing or seizure of any item referred
to in paragraph 1
of this article for the purpose of eventual confiscation.
3. Each State Party shall adopt, in accordance with its domestic law, such
legislative and other measures as may be necessary to regulate the
administration by
17
the competent authorities of frozen, seized or confiscated property covered in
paragraphs 1 and 2 of this article.
4. If such proceeds of crime have been transformed or converted, in part or
in full, into other property, such property shall be liable to the
measures referred to
in this article instead of the proceeds.
5. If such proceeds of crime have been intermingled with property acquired
from legitimate sources, such property shall, without prejudice to any powers
relating to freezing or seizure, be liable to confiscation up to the
assessed value of
the intermingled proceeds.
6. Income or other benefits derived from such proceeds of crime, from
property into which such proceeds of crime have been transformed or converted or
from property with which such proceeds of crime have been intermingled
shall also
be liable to the measures referred to in this article, in the same
manner and to the
same extent as proceeds of crime.
7. For the purpose of this article and article 55 of this Convention, each
State Party shall empower its courts or other competent authorities to
order that
bank, financial or commercial records be made available or seized. A State Party
shall not decline to act under the provisions of this paragraph on the
ground of bank
secrecy.
8. States Parties may consider the possibility of requiring that an offender
demonstrate the lawful origin of such alleged proceeds of crime or
other property
liable to confiscation, to the extent that such a requirement is
consistent with the
fundamental principles of their domestic law and with the nature of judicial and
other proceedings.
9. The provisions of this article shall not be so construed as to prejudice the
rights of bona fide third parties.
10. Nothing contained in this article shall affect the principle that the
measures to which it refers shall be defined and implemented in accordance with
and subject to the provisions of the domestic law of a State Party.
Article 32
Protection of witnesses, experts and victims
1. Each State Party shall take appropriate measures in accordance with its
domestic legal system and within its means to provide effective protection from
potential retaliation or intimidation for witnesses and experts who
give testimony
concerning offences established in accordance with this Convention and, as
appropriate, for their relatives and other persons close to them.
2. The measures envisaged in paragraph 1 of this article may include, inter
alia, without prejudice to the rights of the defendant, including the
right to due
process:
(a) Establishing procedures for the physical protection of such persons, such
as, to the extent necessary and feasible, relocating them and permitting, where
appropriate, non-disclosure or limitations on the disclosure of information
concerning the identity and whereabouts of such persons;
18
(b) Providing evidentiary rules to permit witnesses and experts to give
testimony in a manner that ensures the safety of such persons, such as
permitting
testimony to be given through the use of communications technology such as video
or other adequate means.
3. States Parties shall consider entering into agreements or arrangements
with other States for the relocation of persons referred to in
paragraph 1 of this
article.
4. The provisions of this article shall also apply to victims insofar as they
are witnesses.
5. Each State Party shall, subject to its domestic law, enable the views and
concerns of victims to be presented and considered at appropriate
stages of criminal
proceedings against offenders in a manner not prejudicial to the rights of the
defence.
Article 33
Protection of reporting persons
Each State Party shall consider incorporating into its domestic legal system
appropriate measures to provide protection against any unjustified
treatment for any
person who reports in good faith and on reasonable grounds to the competent
authorities any facts concerning offences established in accordance with this
Convention.
Article 34
Consequences of acts of corruption
With due regard to the rights of third parties acquired in good faith,
each State
Party shall take measures, in accordance with the fundamental principles of its
domestic law, to address consequences of corruption. In this context,
States Parties
may consider corruption a relevant factor in legal proceedings to
annul or rescind a
contract, withdraw a concession or other similar instrument or take any other
remedial action.
Article 35
Compensation for damage
Each State Party shall take such measures as may be necessary, in accordance
with principles of its domestic law, to ensure that entities or persons who have
suffered damage as a result of an act of corruption have the right to
initiate legal
proceedings against those responsible for that damage in order to obtain
compensation.
Article 36
Specialized authorities
Each State Party shall, in accordance with the fundamental principles of its
legal system, ensure the existence of a body or bodies or persons specialized in
combating corruption through law enforcement. Such body or bodies or persons
shall be granted the necessary independence, in accordance with the fundamental
principles of the legal system of the State Party, to be able to carry out their
19
functions effectively and without any undue influence. Such persons or
staff of such
body or bodies should have the appropriate training and resources to
carry out their
tasks.
Article 37
Cooperation with law enforcement authorities
1. Each State Party shall take appropriate measures to encourage persons
who participate or who have participated in the commission of an offence
established in accordance with this Convention to supply information useful to
competent authorities for investigative and evidentiary purposes and to provide
factual, specific help to competent authorities that may contribute to depriving
offenders of the proceeds of crime and to recovering such proceeds.
2. Each State Party shall consider providing for the possibility, in
appropriate cases, of mitigating punishment of an accused person who provides
substantial cooperation in the investigation or prosecution of an
offence established
in accordance with this Convention.
3. Each State Party shall consider providing for the possibility, in
accordance with fundamental principles of its domestic law, of granting immunity
from prosecution to a person who provides substantial cooperation in the
investigation or prosecution of an offence established in accordance with this
Convention.
4. Protection of such persons shall be, mutatis mutandis, as provided for in
article 32 of this Convention.
5. Where a person referred to in paragraph 1 of this article located in one
State Party can provide substantial cooperation to the competent authorities of
another State Party, the States Parties concerned may consider entering into
agreements or arrangements, in accordance with their domestic law,
concerning the
potential provision by the other State Party of the treatment set
forth in paragraphs 2
and 3 of this article.
Article 38
Cooperation between national authorities
Each State Party shall take such measures as may be necessary to encourage,
in accordance with its domestic law, cooperation between, on the one hand, its
public authorities, as well as its public officials, and, on the other hand, its
authorities responsible for investigating and prosecuting criminal
offences. Such
cooperation may include:
(a) Informing the latter authorities, on their own initiative, where there are
reasonable grounds to believe that any of the offences established in accordance
with articles 15, 21 and 23 of this Convention has been committed; or
(b) Providing, upon request, to the latter authorities all necessary
information.
20
Article 39
Cooperation between national authorities and the private sector
1. Each State Party shall take such measures as may be necessary to
encourage, in accordance with its domestic law, cooperation between national
investigating and prosecuting authorities and entities of the private sector, in
particular financial institutions, relating to matters involving the
commission of
offences established in accordance with this Convention.
2. Each State Party shall consider encouraging its nationals and other
persons with a habitual residence in its territory to report to the national
investigating and prosecuting authorities the commission of an offence
established
in accordance with this Convention.
Article 40
Bank secrecy
Each State Party shall ensure that, in the case of domestic criminal
investigations of offences established in accordance with this
Convention, there are
appropriate mechanisms available within its domestic legal system to overcome
obstacles that may arise out of the application of bank secrecy laws.
Article 41
Criminal record
Each State Party may adopt such legislative or other measures as may be
necessary to take into consideration, under such terms as and for the
purpose that it
deems appropriate, any previous conviction in another State of an
alleged offender
for the purpose of using such information in criminal proceedings relating to an
offence established in accordance with this Convention.
Article 42
Jurisdiction
1. Each State Party shall adopt such measures as may be necessary to
establish its jurisdiction over the offences established in accordance with this
Convention when:
(a) The offence is committed in the territory of that State Party; or
(b) The offence is committed on board a vessel that is flying the flag of that
State Party or an aircraft that is registered under the laws of that
State Party at the
time that the offence is committed.
2. Subject to article 4 of this Convention, a State Party may also establish
its jurisdiction over any such offence when:
(a) The offence is committed against a national of that State Party; or
(b) The offence is committed by a national of that State Party or a stateless
person who has his or her habitual residence in its territory; or
(c) The offence is one of those established in accordance with article 23,
paragraph 1 (b) (ii), of this Convention and is committed outside its
territory with a
21
view to the commission of an offence established in accordance with article 23,
paragraph 1 (a) (i) or (ii) or (b) (i), of this Convention within its
territory; or
(d) The offence is committed against the State Party.
3. For the purposes of article 44 of this Convention, each State Party shall
take such measures as may be necessary to establish its jurisdiction over the
offences established in accordance with this Convention when the
alleged offender
is present in its territory and it does not extradite such person
solely on the ground
that he or she is one of its nationals.
4. Each State Party may also take such measures as may be necessary to
establish its jurisdiction over the offences established in accordance with this
Convention when the alleged offender is present in its territory and it does not
extradite him or her.
5. If a State Party exercising its jurisdiction under paragraph 1 or 2 of this
article has been notified, or has otherwise learned, that any other
States Parties are
conducting an investigation, prosecution or judicial proceeding in
respect of the
same conduct, the competent authorities of those States Parties shall,
as appropriate,
consult one another with a view to coordinating their actions.
6. Without prejudice to norms of general international law, this Convention
shall not exclude the exercise of any criminal jurisdiction
established by a State
Party in accordance with its domestic law.
Chapter IV
International cooperation
Article 43
International cooperation
1. States Parties shall cooperate in criminal matters in accordance with
articles 44 to 50 of this Convention. Where appropriate and consistent
with their
domestic legal system, States Parties shall consider assisting each other in
investigations of and proceedings in civil and administrative matters
relating to
corruption.
2. In matters of international cooperation, whenever dual criminality is
considered a requirement, it shall be deemed fulfilled irrespective of
whether the
laws of the requested State Party place the offence within the same category of
offence or denominate the offence by the same terminology as the
requesting State
Party, if the conduct underlying the offence for which assistance is sought is a
criminal offence under the laws of both States Parties.
Article 44
Extradition
1. This article shall apply to the offences established in accordance with
this Convention where the person who is the subject of the request for
extradition is
present in the territory of the requested State Party, provided that
the offence for
which extradition is sought is punishable under the domestic law of both the
requesting State Party and the requested State Party.
22
2. Notwithstanding the provisions of paragraph 1 of this article, a State
Party whose law so permits may grant the extradition of a person for any of the
offences covered by this Convention that are not punishable under its
own domestic
law.
3. If the request for extradition includes several separate offences, at least
one of which is extraditable under this article and some of which are not
extraditable by reason of their period of imprisonment but are related
to offences
established in accordance with this Convention, the requested State
Party may apply
this article also in respect of those offences.
4. Each of the offences to which this article applies shall be deemed to be
included as an extraditable offence in any extradition treaty existing
between States
Parties. States Parties undertake to include such offences as
extraditable offences in
every extradition treaty to be concluded between them. A State Party
whose law so
permits, in case it uses this Convention as the basis for extradition, shall not
consider any of the offences established in accordance with this
Convention to be a
political offence.
5. If a State Party that makes extradition conditional on the existence of a
treaty receives a request for extradition from another State Party
with which it has
no extradition treaty, it may consider this Convention the legal basis
for extradition
in respect of any offence to which this article applies.
6. A State Party that makes extradition conditional on the existence of a
treaty shall:
(a) At the time of deposit of its instrument of ratification, acceptance or
approval of or accession to this Convention, inform the Secretary-General of the
United Nations whether it will take this Convention as the legal basis for
cooperation on extradition with other States Parties to this Convention; and
(b) If it does not take this Convention as the legal basis for cooperation on
extradition, seek, where appropriate, to conclude treaties on
extradition with other
States Parties to this Convention in order to implement this article.
7. States Parties that do not make extradition conditional on the existence of
a treaty shall recognize offences to which this article applies as
extraditable offences
between themselves.
8. Extradition shall be subject to the conditions provided for by the
domestic law of the requested State Party or by applicable extradition treaties,
including, inter alia, conditions in relation to the minimum penalty
requirement for
extradition and the grounds upon which the requested State Party may refuse
extradition.
9. States Parties shall, subject to their domestic law, endeavour to expedite
extradition procedures and to simplify evidentiary requirements
relating thereto in
respect of any offence to which this article applies.
10. Subject to the provisions of its domestic law and its extradition treaties,
the requested State Party may, upon being satisfied that the circumstances so
warrant and are urgent and at the request of the requesting State
Party, take a person
whose extradition is sought and who is present in its territory into
custody or take
other appropriate measures to ensure his or her presence at
extradition proceedings.
23
11. A State Party in whose territory an alleged offender is found, if it does
not extradite such person in respect of an offence to which this
article applies solely
on the ground that he or she is one of its nationals, shall, at the
request of the State
Party seeking extradition, be obliged to submit the case without undue
delay to its
competent authorities for the purpose of prosecution. Those
authorities shall take
their decision and conduct their proceedings in the same manner as in
the case of
any other offence of a grave nature under the domestic law of that
State Party. The
States Parties concerned shall cooperate with each other, in
particular on procedural
and evidentiary aspects, to ensure the efficiency of such prosecution.
12. Whenever a State Party is permitted under its domestic law to extradite
or otherwise surrender one of its nationals only upon the condition
that the person
will be returned to that State Party to serve the sentence imposed as
a result of the
trial or proceedings for which the extradition or surrender of the
person was sought
and that State Party and the State Party seeking the extradition of
the person agree
with this option and other terms that they may deem appropriate, such
conditional
extradition or surrender shall be sufficient to discharge the
obligation set forth in
paragraph 11 of this article.
13. If extradition, sought for purposes of enforcing a sentence, is refused
because the person sought is a national of the requested State Party,
the requested
State Party shall, if its domestic law so permits and in conformity with the
requirements of such law, upon application of the requesting State
Party, consider
the enforcement of the sentence imposed under the domestic law of the requesting
State Party or the remainder thereof.
14. Any person regarding whom proceedings are being carried out in
connection with any of the offences to which this article applies
shall be guaranteed
fair treatment at all stages of the proceedings, including enjoyment
of all the rights
and guarantees provided by the domestic law of the State Party in the
territory of
which that person is present.
15. Nothing in this Convention shall be interpreted as imposing an obligation
to extradite if the requested State Party has substantial grounds for
believing that the
request has been made for the purpose of prosecuting or punishing a person on
account of that person's sex, race, religion, nationality, ethnic
origin or political
opinions or that compliance with the request would cause prejudice to
that person's
position for any one of these reasons.
16. States Parties may not refuse a request for extradition on the sole ground
that the offence is also considered to involve fiscal matters.
17. Before refusing extradition, the requested State Party shall, where
appropriate, consult with the requesting State Party to provide it with ample
opportunity to present its opinions and to provide information relevant to its
allegation.
18. States Parties shall seek to conclude bilateral and multilateral agreements
or arrangements to carry out or to enhance the effectiveness of extradition.
24
Article 45
Transfer of sentenced persons
States Parties may consider entering into bilateral or multilateral agreements
or arrangements on the transfer to their territory of persons sentenced to
imprisonment or other forms of deprivation of liberty for offences
established in
accordance with this Convention in order that they may complete their sentences
there.
Article 46
Mutual legal assistance
1. States Parties shall afford one another the widest measure of mutual legal
assistance in investigations, prosecutions and judicial proceedings in
relation to the
offences covered by this Convention.
2. Mutual legal assistance shall be afforded to the fullest extent possible
under relevant laws, treaties, agreements and arrangements of the
requested State
Party with respect to investigations, prosecutions and judicial proceedings in
relation to the offences for which a legal person may be held liable
in accordance
with article 26 of this Convention in the requesting State Party.
3. Mutual legal assistance to be afforded in accordance with this article may
be requested for any of the following purposes:
(a) Taking evidence or statements from persons;
(b) Effecting service of judicial documents;
(c) Executing searches and seizures, and freezing;
(d) Examining objects and sites;
(e) Providing information, evidentiary items and expert evaluations;
(f) Providing originals or certified copies of relevant documents and records,
including government, bank, financial, corporate or business records;
(g) Identifying or tracing proceeds of crime, property, instrumentalities or
other things for evidentiary purposes;
(h) Facilitating the voluntary appearance of persons in the requesting State
Party;
(i) Any other type of assistance that is not contrary to the domestic law of
the requested State Party;
(j) Identifying, freezing and tracing proceeds of crime in accordance with
the provisions of chapter V of this Convention;
(k) The recovery of assets, in accordance with the provisions of chapter V of
this Convention.
4. Without prejudice to domestic law, the competent authorities of a State
Party may, without prior request, transmit information relating to
criminal matters to
a competent authority in another State Party where they believe that such
information could assist the authority in undertaking or successfully concluding
25
inquiries and criminal proceedings or could result in a request
formulated by the
latter State Party pursuant to this Convention.
5. The transmission of information pursuant to paragraph 4 of this article
shall be without prejudice to inquiries and criminal proceedings in
the State of the
competent authorities providing the information. The competent authorities
receiving the information shall comply with a request that said
information remain
confidential, even temporarily, or with restrictions on its use.
However, this shall
not prevent the receiving State Party from disclosing in its
proceedings information
that is exculpatory to an accused person. In such a case, the
receiving State Party
shall notify the transmitting State Party prior to the disclosure and,
if so requested,
consult with the transmitting State Party. If, in an exceptional case,
advance notice
is not possible, the receiving State Party shall inform the
transmitting State Party of
the disclosure without delay.
6. The provisions of this article shall not affect the obligations under any
other treaty, bilateral or multilateral, that governs or will govern,
in whole or in part,
mutual legal assistance.
7. Paragraphs 9 to 29 of this article shall apply to requests made pursuant to
this article if the States Parties in question are not bound by a
treaty of mutual legal
assistance. If those States Parties are bound by such a treaty, the
corresponding
provisions of that treaty shall apply unless the States Parties agree to apply
paragraphs 9 to 29 of this article in lieu thereof. States Parties are strongly
encouraged to apply those paragraphs if they facilitate cooperation.
8. States Parties shall not decline to render mutual legal assistance pursuant
to this article on the ground of bank secrecy.
9. (a) A requested State Party, in responding to a request for assistance
pursuant to this article in the absence of dual criminality, shall
take into account the
purposes of this Convention, as set forth in article 1;
(b) States Parties may decline to render assistance pursuant to this article on
the ground of absence of dual criminality. However, a requested State
Party shall,
where consistent with the basic concepts of its legal system, render
assistance that
does not involve coercive action. Such assistance may be refused when requests
involve matters of a de minimis nature or matters for which the cooperation or
assistance sought is available under other provisions of this Convention;
(c) Each State Party may consider adopting such measures as may be
necessary to enable it to provide a wider scope of assistance pursuant
to this article
in the absence of dual criminality.
10. A person who is being detained or is serving a sentence in the territory of
one State Party whose presence in another State Party is requested for
purposes of
identification, testimony or otherwise providing assistance in
obtaining evidence for
investigations, prosecutions or judicial proceedings in relation to
offences covered
by this Convention may be transferred if the following conditions are met:
(a) The person freely gives his or her informed consent;
(b) The competent authorities of both States Parties agree, subject to such
conditions as those States Parties may deem appropriate.
26
11. For the purposes of paragraph 10 of this article:
(a) The State Party to which the person is transferred shall have the authority
and obligation to keep the person transferred in custody, unless
otherwise requested
or authorized by the State Party from which the person was transferred;
(b) The State Party to which the person is transferred shall without delay
implement its obligation to return the person to the custody of the
State Party from
which the person was transferred as agreed beforehand, or as otherwise
agreed, by
the competent authorities of both States Parties;
(c) The State Party to which the person is transferred shall not require the
State Party from which the person was transferred to initiate
extradition proceedings
for the return of the person;
(d) The person transferred shall receive credit for service of the sentence
being served in the State from which he or she was transferred for
time spent in the
custody of the State Party to which he or she was transferred.
12. Unless the State Party from which a person is to be transferred in
accordance with paragraphs 10 and 11 of this article so agrees, that person,
whatever his or her nationality, shall not be prosecuted, detained, punished or
subjected to any other restriction of his or her personal liberty in
the territory of the
State to which that person is transferred in respect of acts,
omissions or convictions
prior to his or her departure from the territory of the State from
which he or she was
transferred.
13. Each State Party shall designate a central authority that shall have the
responsibility and power to receive requests for mutual legal
assistance and either to
execute them or to transmit them to the competent authorities for
execution. Where
a State Party has a special region or territory with a separate system
of mutual legal
assistance, it may designate a distinct central authority that shall
have the same
function for that region or territory. Central authorities shall
ensure the speedy and
proper execution or transmission of the requests received. Where the central
authority transmits the request to a competent authority for execution, it shall
encourage the speedy and proper execution of the request by the competent
authority. The Secretary-General of the United Nations shall be notified of the
central authority designated for this purpose at the time each State
Party deposits its
instrument of ratification, acceptance or approval of or accession to this
Convention. Requests for mutual legal assistance and any communication related
thereto shall be transmitted to the central authorities designated by the States
Parties. This requirement shall be without prejudice to the right of a
State Party to
require that such requests and communications be addressed to it
through diplomatic
channels and, in urgent circumstances, where the States Parties agree,
through the
International Criminal Police Organization, if possible.
14. Requests shall be made in writing or, where possible, by any means
capable of producing a written record, in a language acceptable to the requested
State Party, under conditions allowing that State Party to establish
authenticity. The
Secretary-General of the United Nations shall be notified of the language or
languages acceptable to each State Party at the time it deposits its
instrument of
ratification, acceptance or approval of or accession to this
Convention. In urgent
27
circumstances and where agreed by the States Parties, requests may be
made orally
but shall be confirmed in writing forthwith.
15. A request for mutual legal assistance shall contain:
(a) The identity of the authority making the request;
(b) The subject matter and nature of the investigation, prosecution or judicial
proceeding to which the request relates and the name and functions of
the authority
conducting the investigation, prosecution or judicial proceeding;
(c) A summary of the relevant facts, except in relation to requests for the
purpose of service of judicial documents;
(d) A description of the assistance sought and details of any particular
procedure that the requesting State Party wishes to be followed;
(e) Where possible, the identity, location and nationality of any person
concerned; and
(f) The purpose for which the evidence, information or action is sought.
16. The requested State Party may request additional information when it
appears necessary for the execution of the request in accordance with
its domestic
law or when it can facilitate such execution.
17. A request shall be executed in accordance with the domestic law of the
requested State Party and, to the extent not contrary to the domestic law of the
requested State Party and where possible, in accordance with the procedures
specified in the request.
18. Wherever possible and consistent with fundamental principles of
domestic law, when an individual is in the territory of a State Party
and has to be
heard as a witness or expert by the judicial authorities of another
State Party, the
first State Party may, at the request of the other, permit the hearing
to take place by
video conference if it is not possible or desirable for the individual
in question to
appear in person in the territory of the requesting State Party.
States Parties may
agree that the hearing shall be conducted by a judicial authority of
the requesting
State Party and attended by a judicial authority of the requested State Party.
19. The requesting State Party shall not transmit or use information or
evidence furnished by the requested State Party for investigations,
prosecutions or
judicial proceedings other than those stated in the request without
the prior consent
of the requested State Party. Nothing in this paragraph shall prevent
the requesting
State Party from disclosing in its proceedings information or evidence that is
exculpatory to an accused person. In the latter case, the requesting
State Party shall
notify the requested State Party prior to the disclosure and, if so
requested, consult
with the requested State Party. If, in an exceptional case, advance
notice is not
possible, the requesting State Party shall inform the requested State
Party of the
disclosure without delay.
20. The requesting State Party may require that the requested State Party
keep confidential the fact and substance of the request, except to the extent
necessary to execute the request. If the requested State Party cannot
comply with the
requirement of confidentiality, it shall promptly inform the
requesting State Party.
28
21. Mutual legal assistance may be refused:
(a) If the request is not made in conformity with the provisions of this
article;
(b) If the requested State Party considers that execution of the request is
likely to prejudice its sovereignty, security, ordre public or other
essential interests;
(c) If the authorities of the requested State Party would be prohibited by its
domestic law from carrying out the action requested with regard to any similar
offence, had it been subject to investigation, prosecution or judicial
proceedings
under their own jurisdiction;
(d) If it would be contrary to the legal system of the requested State Party
relating to mutual legal assistance for the request to be granted.
22. States Parties may not refuse a request for mutual legal assistance on the
sole ground that the offence is also considered to involve fiscal matters.
23. Reasons shall be given for any refusal of mutual legal assistance.
24. The requested State Party shall execute the request for mutual legal
assistance as soon as possible and shall take as full account as possible of any
deadlines suggested by the requesting State Party and for which
reasons are given,
preferably in the request. The requesting State Party may make
reasonable requests
for information on the status and progress of measures taken by the
requested State
Party to satisfy its request. The requested State Party shall respond
to reasonable
requests by the requesting State Party on the status, and progress in
its handling, of
the request. The requesting State Party shall promptly inform the
requested State
Party when the assistance sought is no longer required.
25. Mutual legal assistance may be postponed by the requested State Party
on the ground that it interferes with an ongoing investigation,
prosecution or judicial
proceeding.
26. Before refusing a request pursuant to paragraph 21 of this article or
postponing its execution pursuant to paragraph 25 of this article, the
requested State
Party shall consult with the requesting State Party to consider
whether assistance
may be granted subject to such terms and conditions as it deems
necessary. If the
requesting State Party accepts assistance subject to those conditions,
it shall comply
with the conditions.
27. Without prejudice to the application of paragraph 12 of this article, a
witness, expert or other person who, at the request of the requesting
State Party,
consents to give evidence in a proceeding or to assist in an investigation,
prosecution or judicial proceeding in the territory of the requesting
State Party shall
not be prosecuted, detained, punished or subjected to any other
restriction of his or
her personal liberty in that territory in respect of acts, omissions
or convictions prior
to his or her departure from the territory of the requested State
Party. Such safe
conduct shall cease when the witness, expert or other person having had, for a
period of fifteen consecutive days or for any period agreed upon by the States
Parties from the date on which he or she has been officially informed
that his or her
presence is no longer required by the judicial authorities, an
opportunity of leaving,
has nevertheless remained voluntarily in the territory of the
requesting State Party
or, having left it, has returned of his or her own free will.
29
28. The ordinary costs of executing a request shall be borne by the requested
State Party, unless otherwise agreed by the States Parties concerned.
If expenses of a
substantial or extraordinary nature are or will be required to fulfil
the request, the
States Parties shall consult to determine the terms and conditions
under which the
request will be executed, as well as the manner in which the costs
shall be borne.
29. The requested State Party:
(a) Shall provide to the requesting State Party copies of government records,
documents or information in its possession that under its domestic law
are available
to the general public;
(b) May, at its discretion, provide to the requesting State Party in whole, in
part or subject to such conditions as it deems appropriate, copies of
any government
records, documents or information in its possession that under its
domestic law are
not available to the general public.
30. States Parties shall consider, as may be necessary, the possibility of
concluding bilateral or multilateral agreements or arrangements that
would serve the
purposes of, give practical effect to or enhance the provisions of this article.
Article 47
Transfer of criminal proceedings
States Parties shall consider the possibility of transferring to one another
proceedings for the prosecution of an offence established in
accordance with this
Convention in cases where such transfer is considered to be in the
interests of the
proper administration of justice, in particular in cases where several
jurisdictions are
involved, with a view to concentrating the prosecution.
Article 48
Law enforcement cooperation
1. States Parties shall cooperate closely with one another, consistent with
their respective domestic legal and administrative systems, to enhance the
effectiveness of law enforcement action to combat the offences covered by this
Convention. States Parties shall, in particular, take effective measures:
(a) To enhance and, where necessary, to establish channels of
communication between their competent authorities, agencies and
services in order
to facilitate the secure and rapid exchange of information concerning
all aspects of
the offences covered by this Convention, including, if the States
Parties concerned
deem it appropriate, links with other criminal activities;
(b) To cooperate with other States Parties in conducting inquiries with
respect to offences covered by this Convention concerning:
(i) The identity, whereabouts and activities of persons suspected of
involvement in such offences or the location of other persons concerned;
(ii) The movement of proceeds of crime or property derived from the
commission of such offences;
(iii) The movement of property, equipment or other instrumentalities used or
intended for use in the commission of such offences;
30
(c) To provide, where appropriate, necessary items or quantities of
substances for analytical or investigative purposes;
(d) To exchange, where appropriate, information with other States Parties
concerning specific means and methods used to commit offences covered by this
Convention, including the use of false identities, forged, altered or
false documents
and other means of concealing activities;
(e) To facilitate effective coordination between their competent authorities,
agencies and services and to promote the exchange of personnel and
other experts,
including, subject to bilateral agreements or arrangements between the
States Parties
concerned, the posting of liaison officers;
(f) To exchange information and coordinate administrative and other
measures taken as appropriate for the purpose of early identification
of the offences
covered by this Convention.
2. With a view to giving effect to this Convention, States Parties shall
consider entering into bilateral or multilateral agreements or
arrangements on direct
cooperation between their law enforcement agencies and, where such agreements or
arrangements already exist, amending them. In the absence of such agreements or
arrangements between the States Parties concerned, the States Parties
may consider
this Convention to be the basis for mutual law enforcement cooperation
in respect of
the offences covered by this Convention. Whenever appropriate, States
Parties shall
make full use of agreements or arrangements, including international or regional
organizations, to enhance the cooperation between their law
enforcement agencies.
3. States Parties shall endeavour to cooperate within their means to respond
to offences covered by this Convention committed through the use of modern
technology.
Article 49
Joint investigations
States Parties shall consider concluding bilateral or multilateral agreements or
arrangements whereby, in relation to matters that are the subject of
investigations,
prosecutions or judicial proceedings in one or more States, the
competent authorities
concerned may establish joint investigative bodies. In the absence of such
agreements or arrangements, joint investigations may be undertaken by agreement
on a case-by-case basis. The States Parties involved shall ensure that
the sovereignty
of the State Party in whose territory such investigation is to take
place is fully
respected.
Article 50
Special investigative techniques
1. In order to combat corruption effectively, each State Party shall, to the
extent permitted by the basic principles of its domestic legal system and in
accordance with the conditions prescribed by its domestic law, take
such measures
as may be necessary, within its means, to allow for the appropriate use by its
competent authorities of controlled delivery and, where it deems
appropriate, other
special investigative techniques, such as electronic or other forms of
surveillance
31
and undercover operations, within its territory, and to allow for the
admissibility in
court of evidence derived therefrom.
2. For the purpose of investigating the offences covered by this Convention,
States Parties are encouraged to conclude, when necessary, appropriate
bilateral or
multilateral agreements or arrangements for using such special investigative
techniques in the context of cooperation at the international level.
Such agreements
or arrangements shall be concluded and implemented in full compliance with the
principle of sovereign equality of States and shall be carried out strictly in
accordance with the terms of those agreements or arrangements.
3. In the absence of an agreement or arrangement as set forth in paragraph 2
of this article, decisions to use such special investigative techniques at the
international level shall be made on a case-by-case basis and may,
when necessary,
take into consideration financial arrangements and understandings with
respect to
the exercise of jurisdiction by the States Parties concerned.
4. Decisions to use controlled delivery at the international level may, with
the consent of the States Parties concerned, include methods such as
intercepting
and allowing the goods or funds to continue intact or be removed or replaced in
whole or in part.
Chapter V
Asset recovery
Article 51
General provision
The return of assets pursuant to this chapter is a fundamental principle of this
Convention, and States Parties shall afford one another the widest measure of
cooperation and assistance in this regard.
Article 52
Prevention and detection of transfers of proceeds of crime
1. Without prejudice to article 14 of this Convention, each State Party shall
take such measures as may be necessary, in accordance with its domestic law, to
require financial institutions within its jurisdiction to verify the identity of
customers, to take reasonable steps to determine the identity of
beneficial owners of
funds deposited into high-value accounts and to conduct enhanced scrutiny of
accounts sought or maintained by or on behalf of individuals who are,
or have been,
entrusted with prominent public functions and their family members and close
associates. Such enhanced scrutiny shall be reasonably designed to
detect suspicious
transactions for the purpose of reporting to competent authorities and
should not be
so construed as to discourage or prohibit financial institutions from
doing business
with any legitimate customer.
2. In order to facilitate implementation of the measures provided for in
paragraph 1 of this article, each State Party, in accordance with its
domestic law and
inspired by relevant initiatives of regional, interregional and multilateral
organizations against money-laundering, shall:
32
(a) Issue advisories regarding the types of natural or legal person to whose
accounts financial institutions within its jurisdiction will be
expected to apply
enhanced scrutiny, the types of accounts and transactions to which to
pay particular
attention and appropriate account-opening, maintenance and record-keeping
measures to take concerning such accounts; and
(b) Where appropriate, notify financial institutions within its jurisdiction, at
the request of another State Party or on its own initiative, of the identity of
particular natural or legal persons to whose accounts such institutions will be
expected to apply enhanced scrutiny, in addition to those whom the financial
institutions may otherwise identify.
3. In the context of paragraph 2 (a) of this article, each State Party shall
implement measures to ensure that its financial institutions maintain adequate
records, over an appropriate period of time, of accounts and
transactions involving
the persons mentioned in paragraph 1 of this article, which should, as
a minimum,
contain information relating to the identity of the customer as well
as, as far as
possible, of the beneficial owner.
4. With the aim of preventing and detecting transfers of proceeds of
offences established in accordance with this Convention, each State Party shall
implement appropriate and effective measures to prevent, with the help of its
regulatory and oversight bodies, the establishment of banks that have
no physical
presence and that are not affiliated with a regulated financial group. Moreover,
States Parties may consider requiring their financial institutions to
refuse to enter
into or continue a correspondent banking relationship with such
institutions and to
guard against establishing relations with foreign financial
institutions that permit
their accounts to be used by banks that have no physical presence and
that are not
affiliated with a regulated financial group.
5. Each State Party shall consider establishing, in accordance with its
domestic law, effective financial disclosure systems for appropriate
public officials
and shall provide for appropriate sanctions for non-compliance. Each State Party
shall also consider taking such measures as may be necessary to permit its
competent authorities to share that information with the competent
authorities in
other States Parties when necessary to investigate, claim and recover
proceeds of
offences established in accordance with this Convention.
6. Each State Party shall consider taking such measures as may be
necessary, in accordance with its domestic law, to require appropriate public
officials having an interest in or signature or other authority over a
financial account
in a foreign country to report that relationship to appropriate
authorities and to
maintain appropriate records related to such accounts. Such measures shall also
provide for appropriate sanctions for non-compliance.
Article 53
Measures for direct recovery of property
Each State Party shall, in accordance with its domestic law:
(a) Take such measures as may be necessary to permit another State Party to
initiate civil action in its courts to establish title to or ownership
of property
33
acquired through the commission of an offence established in
accordance with this
Convention;
(b) Take such measures as may be necessary to permit its courts to order
those who have committed offences established in accordance with this Convention
to pay compensation or damages to another State Party that has been harmed by
such offences; and
(c) Take such measures as may be necessary to permit its courts or
competent authorities, when having to decide on confiscation, to
recognize another
State Party's claim as a legitimate owner of property acquired through the
commission of an offence established in accordance with this Convention.
Article 54
Mechanisms for recovery of property through international
cooperation in confiscation
1. Each State Party, in order to provide mutual legal assistance pursuant to
article 55 of this Convention with respect to property acquired
through or involved
in the commission of an offence established in accordance with this Convention,
shall, in accordance with its domestic law:
(a) Take such measures as may be necessary to permit its competent
authorities to give effect to an order of confiscation issued by a
court of another
State Party;
(b) Take such measures as may be necessary to permit its competent
authorities, where they have jurisdiction, to order the confiscation
of such property
of foreign origin by adjudication of an offence of money-laundering or
such other
offence as may be within its jurisdiction or by other procedures
authorized under its
domestic law; and
(c) Consider taking such measures as may be necessary to allow confiscation
of such property without a criminal conviction in cases in which the
offender cannot
be prosecuted by reason of death, flight or absence or in other
appropriate cases.
2. Each State Party, in order to provide mutual legal assistance upon a
request made pursuant to paragraph 2 of article 55 of this Convention, shall, in
accordance with its domestic law:
(a) Take such measures as may be necessary to permit its competent
authorities to freeze or seize property upon a freezing or seizure
order issued by a
court or competent authority of a requesting State Party that provides
a reasonable
basis for the requested State Party to believe that there are
sufficient grounds for
taking such actions and that the property would eventually be subject
to an order of
confiscation for purposes of paragraph 1 (a) of this article;
(b) Take such measures as may be necessary to permit its competent
authorities to freeze or seize property upon a request that provides a
reasonable
basis for the requested State Party to believe that there are
sufficient grounds for
taking such actions and that the property would eventually be subject
to an order of
confiscation for purposes of paragraph 1 (a) of this article; and
34
(c) Consider taking additional measures to permit its competent authorities
to preserve property for confiscation, such as on the basis of a
foreign arrest or
criminal charge related to the acquisition of such property.
Article 55
International cooperation for purposes of confiscation
1. A State Party that has received a request from another State Party having
jurisdiction over an offence established in accordance with this Convention for
confiscation of proceeds of crime, property, equipment or other
instrumentalities
referred to in article 31, paragraph 1, of this Convention situated in
its territory
shall, to the greatest extent possible within its domestic legal system:
(a) Submit the request to its competent authorities for the purpose of
obtaining an order of confiscation and, if such an order is granted,
give effect to it;
or
(b) Submit to its competent authorities, with a view to giving effect to it to
the extent requested, an order of confiscation issued by a court in
the territory of the
requesting State Party in accordance with articles 31, paragraph 1, and 54,
paragraph 1 (a), of this Convention insofar as it relates to proceeds of crime,
property, equipment or other instrumentalities referred to in article
31, paragraph 1,
situated in the territory of the requested State Party.
2. Following a request made by another State Party having jurisdiction over
an offence established in accordance with this Convention, the
requested State Party
shall take measures to identify, trace and freeze or seize proceeds of
crime, property,
equipment or other instrumentalities referred to in article 31,
paragraph 1, of this
Convention for the purpose of eventual confiscation to be ordered either by the
requesting State Party or, pursuant to a request under paragraph 1 of
this article, by
the requested State Party.
3. The provisions of article 46 of this Convention are applicable, mutatis
mutandis, to this article. In addition to the information specified in
article 46,
paragraph 15, requests made pursuant to this article shall contain:
(a) In the case of a request pertaining to paragraph 1 (a) of this article, a
description of the property to be confiscated, including, to the
extent possible, the
location and, where relevant, the estimated value of the property and
a statement of
the facts relied upon by the requesting State Party sufficient to
enable the requested
State Party to seek the order under its domestic law;
(b) In the case of a request pertaining to paragraph 1 (b) of this article, a
legally admissible copy of an order of confiscation upon which the
request is based
issued by the requesting State Party, a statement of the facts and
information as to
the extent to which execution of the order is requested, a statement
specifying the
measures taken by the requesting State Party to provide adequate notification to
bona fide third parties and to ensure due process and a statement that the
confiscation order is final;
(c) In the case of a request pertaining to paragraph 2 of this article, a
statement of the facts relied upon by the requesting State Party and a
description of
35
the actions requested and, where available, a legally admissible copy
of an order on
which the request is based.
4. The decisions or actions provided for in paragraphs 1 and 2 of this article
shall be taken by the requested State Party in accordance with and
subject to the
provisions of its domestic law and its procedural rules or any bilateral or
multilateral agreement or arrangement to which it may be bound in
relation to the
requesting State Party.
5. Each State Party shall furnish copies of its laws and regulations that give
effect to this article and of any subsequent changes to such laws and
regulations or a
description thereof to the Secretary-General of the United Nations.
6. If a State Party elects to make the taking of the measures referred to in
paragraphs 1 and 2 of this article conditional on the existence of a
relevant treaty,
that State Party shall consider this Convention the necessary and
sufficient treaty
basis.
7. Cooperation under this article may also be refused or provisional
measures lifted if the requested State Party does not receive
sufficient and timely
evidence or if the property is of a de minimis value.
8. Before lifting any provisional measure taken pursuant to this article, the
requested State Party shall, wherever possible, give the requesting
State Party an
opportunity to present its reasons in favour of continuing the measure.
9. The provisions of this article shall not be construed as prejudicing the
rights of bona fide third parties.
Article 56
Special cooperation
Without prejudice to its domestic law, each State Party shall endeavour to take
measures to permit it to forward, without prejudice to its own investigations,
prosecutions or judicial proceedings, information on proceeds of offences
established in accordance with this Convention to another State Party
without prior
request, when it considers that the disclosure of such information
might assist the
receiving State Party in initiating or carrying out investigations,
prosecutions or
judicial proceedings or might lead to a request by that State Party
under this chapter
of the Convention.
Article 57
Return and disposal of assets
1. Property confiscated by a State Party pursuant to article 31 or 55 of this
Convention shall be disposed of, including by return to its prior
legitimate owners,
pursuant to paragraph 3 of this article, by that State Party in
accordance with the
provisions of this Convention and its domestic law.
2. Each State Party shall adopt such legislative and other measures, in
accordance with the fundamental principles of its domestic law, as may
be necessary
to enable its competent authorities to return confiscated property,
when acting on
the request made by another State Party, in accordance with this
Convention, taking
into account the rights of bona fide third parties.
36
3. In accordance with articles 46 and 55 of this Convention and
paragraphs 1 and 2 of this article, the requested State Party shall:
(a) In the case of embezzlement of public funds or of laundering of
embezzled public funds as referred to in articles 17 and 23 of this
Convention, when
confiscation was executed in accordance with article 55 and on the
basis of a final
judgement in the requesting State Party, a requirement that can be waived by the
requested State Party, return the confiscated property to the
requesting State Party;
(b) In the case of proceeds of any other offence covered by this Convention,
when the confiscation was executed in accordance with article 55 of
this Convention
and on the basis of a final judgement in the requesting State Party, a
requirement
that can be waived by the requested State Party, return the
confiscated property to
the requesting State Party, when the requesting State Party reasonably
establishes its
prior ownership of such confiscated property to the requested State
Party or when
the requested State Party recognizes damage to the requesting State
Party as a basis
for returning the confiscated property;
(c) In all other cases, give priority consideration to returning confiscated
property to the requesting State Party, returning such property to its
prior legitimate
owners or compensating the victims of the crime.
4. Where appropriate, unless States Parties decide otherwise, the requested
State Party may deduct reasonable expenses incurred in investigations,
prosecutions
or judicial proceedings leading to the return or disposition of
confiscated property
pursuant to this article.
5. Where appropriate, States Parties may also give special consideration to
concluding agreements or mutually acceptable arrangements, on a case-by-case
basis, for the final disposal of confiscated property.
Article 58
Financial intelligence unit
States Parties shall cooperate with one another for the purpose of preventing
and combating the transfer of proceeds of offences established in
accordance with
this Convention and of promoting ways and means of recovering such proceeds and,
to that end, shall consider establishing a financial intelligence unit
to be responsible
for receiving, analysing and disseminating to the competent
authorities reports of
suspicious financial transactions.
Article 59
Bilateral and multilateral agreements and arrangements
States Parties shall consider concluding bilateral or multilateral agreements or
arrangements to enhance the effectiveness of international cooperation
undertaken
pursuant to this chapter of the Convention.
Chapter VI
Technical assistance and information exchange
37
Article 60
Training and technical assistance
1. Each State Party shall, to the extent necessary, initiate, develop or
improve specific training programmes for its personnel responsible for
preventing
and combating corruption. Such training programmes could deal, inter
alia, with the
following areas:
(a) Effective measures to prevent, detect, investigate, punish and control
corruption, including the use of evidence-gathering and investigative methods;
(b) Building capacity in the development and planning of strategic
anticorruption
policy;
(c) Training competent authorities in the preparation of requests for mutual
legal assistance that meet the requirements of this Convention;
(d) Evaluation and strengthening of institutions, public service management
and the management of public finances, including public procurement, and the
private sector;
(e) Preventing and combating the transfer of proceeds of offences
established in accordance with this Convention and recovering such proceeds;
(f) Detecting and freezing of the transfer of proceeds of offences established
in accordance with this Convention;
(g) Surveillance of the movement of proceeds of offences established in
accordance with this Convention and of the methods used to transfer, conceal or
disguise such proceeds;
(h) Appropriate and efficient legal and administrative mechanisms and
methods for facilitating the return of proceeds of offences
established in accordance
with this Convention;
(i) Methods used in protecting victims and witnesses who cooperate with
judicial authorities; and
(j) Training in national and international regulations and in languages.
2. States Parties shall, according to their capacity, consider affording one
another the widest measure of technical assistance, especially for the
benefit of
developing countries, in their respective plans and programmes to
combat corruption, including material support and training in the
areas referred to in
paragraph 1 of this article, and training and assistance and the
mutual exchange of
relevant experience and specialized knowledge, which will facilitate
international
cooperation between States Parties in the areas of extradition and mutual legal
assistance.
3. States Parties shall strengthen, to the extent necessary, efforts to
maximize operational and training activities in international and regional
organizations and in the framework of relevant bilateral and
multilateral agreements
or arrangements.
4. States Parties shall consider assisting one another, upon request, in
conducting evaluations, studies and research relating to the types,
causes, effects
38
and costs of corruption in their respective countries, with a view to
developing, with
the participation of competent authorities and society, strategies and
action plans to
combat corruption.
5. In order to facilitate the recovery of proceeds of offences established in
accordance with this Convention, States Parties may cooperate in providing each
other with the names of experts who could assist in achieving that objective.
6. States Parties shall consider using subregional, regional and international
conferences and seminars to promote cooperation and technical assistance and to
stimulate discussion on problems of mutual concern, including the
special problems
and needs of developing countries and countries with economies in transition.
7. States Parties shall consider establishing voluntary mechanisms with a
view to contributing financially to the efforts of developing
countries and countries
with economies in transition to apply this Convention through
technical assistance
programmes and projects.
8. Each State Party shall consider making voluntary contributions to the
United Nations Office on Drugs and Crime for the purpose of fostering,
through the
Office, programmes and projects in developing countries with a view to
implementing this Convention.
Article 61
Collection, exchange and analysis of information on corruption
1. Each State Party shall consider analysing, in consultation with experts,
trends in corruption in its territory, as well as the circumstances in
which corruption
offences are committed.
2. States Parties shall consider developing and sharing with each other and
through international and regional organizations statistics,
analytical expertise
concerning corruption and information with a view to developing, insofar as
possible, common definitions, standards and methodologies, as well as
information
on best practices to prevent and combat corruption.
3. Each State Party shall consider monitoring its policies and actual
measures to combat corruption and making assessments of their effectiveness and
efficiency.
Article 62
Other measures: implementation of the Convention through
economic development and technical assistance
1. States Parties shall take measures conducive to the optimal
implementation of this Convention to the extent possible, through international
cooperation, taking into account the negative effects of corruption on
society in
general, in particular on sustainable development.
2. States Parties shall make concrete efforts to the extent possible and in
coordination with each other, as well as with international and regional
organizations:
39
(a) To enhance their cooperation at various levels with developing countries,
with a view to strengthening the capacity of the latter to prevent and combat
corruption;
(b) To enhance financial and material assistance to support the efforts of
developing countries to prevent and fight corruption effectively and
to help them
implement this Convention successfully;
(c) To provide technical assistance to developing countries and countries
with economies in transition to assist them in meeting their needs for the
implementation of this Convention. To that end, States Parties shall
endeavour to
make adequate and regular voluntary contributions to an account specifically
designated for that purpose in a United Nations funding mechanism.
States Parties
may also give special consideration, in accordance with their domestic
law and the
provisions of this Convention, to contributing to that account a
percentage of the
money or of the corresponding value of proceeds of crime or property
confiscated in
accordance with the provisions of this Convention;
(d) To encourage and persuade other States and financial institutions as
appropriate to join them in efforts in accordance with this article,
in particular by
providing more training programmes and modern equipment to developing countries
in order to assist them in achieving the objectives of this Convention.
3. To the extent possible, these measures shall be without prejudice to
existing foreign assistance commitments or to other financial cooperation
arrangements at the bilateral, regional or international level.
4. States Parties may conclude bilateral or multilateral agreements or
arrangements on material and logistical assistance, taking into
consideration the
financial arrangements necessary for the means of international cooperation
provided for by this Convention to be effective and for the
prevention, detection and
control of corruption.
Chapter VII
Mechanisms for implementation
Article 63
Conference of the States Parties to the Convention
1. A Conference of the States Parties to the Convention is hereby
established to improve the capacity of and cooperation between States Parties to
achieve the objectives set forth in this Convention and to promote and
review its
implementation.
2. The Secretary-General of the United Nations shall convene the
Conference of the States Parties not later than one year following the
entry into
force of this Convention. Thereafter, regular meetings of the Conference of the
States Parties shall be held in accordance with the rules of procedure
adopted by the
Conference.
3. The Conference of the States Parties shall adopt rules of procedure and
rules governing the functioning of the activities set forth in this
article, including
40
rules concerning the admission and participation of observers, and the
payment of
expenses incurred in carrying out those activities.
4. The Conference of the States Parties shall agree upon activities,
procedures and methods of work to achieve the objectives set forth in
paragraph 1
of this article, including:
(a) Facilitating activities by States Parties under articles 60 and 62 and
chapters II to V of this Convention, including by encouraging the
mobilization of
voluntary contributions;
(b) Facilitating the exchange of information among States Parties on patterns
and trends in corruption and on successful practices for preventing
and combating it
and for the return of proceeds of crime, through, inter alia, the publication of
relevant information as mentioned in this article;
(c) Cooperating with relevant international and regional organizations and
mechanisms and non-governmental organizations;
(d) Making appropriate use of relevant information produced by other
international and regional mechanisms for combating and preventing corruption in
order to avoid unnecessary duplication of work;
(e) Reviewing periodically the implementation of this Convention by its
States Parties;
(f) Making recommendations to improve this Convention and its
implementation;
(g) Taking note of the technical assistance requirements of States Parties
with regard to the implementation of this Convention and recommending any action
it may deem necessary in that respect.
5. For the purpose of paragraph 4 of this article, the Conference of the
States Parties shall acquire the necessary knowledge of the measures
taken by States
Parties in implementing this Convention and the difficulties
encountered by them in
doing so through information provided by them and through such supplemental
review mechanisms as may be established by the Conference of the States Parties.
6. Each State Party shall provide the Conference of the States Parties with
information on its programmes, plans and practices, as well as on
legislative and
administrative measures to implement this Convention, as required by the
Conference of the States Parties. The Conference of the States Parties
shall examine
the most effective way of receiving and acting upon information,
including, inter
alia, information received from States Parties and from competent international
organizations. Inputs received from relevant non-governmental organizations duly
accredited in accordance with procedures to be decided upon by the Conference of
the States Parties may also be considered.
7. Pursuant to paragraphs 4 to 6 of this article, the Conference of the States
Parties shall establish, if it deems it necessary, any appropriate
mechanism or body
to assist in the effective implementation of the Convention.
Article 64
Secretariat
41
1. The Secretary-General of the United Nations shall provide the necessary
secretariat services to the Conference of the States Parties to the Convention.
2. The secretariat shall:
(a) Assist the Conference of the States Parties in carrying out the activities
set forth in article 63 of this Convention and make arrangements and provide the
necessary services for the sessions of the Conference of the States Parties;
(b) Upon request, assist States Parties in providing information to the
Conference of the States Parties as envisaged in article 63,
paragraphs 5 and 6, of
this Convention; and
(c) Ensure the necessary coordination with the secretariats of relevant
international and regional organizations.
Chapter VIII
Final provisions
Article 65
Implementation of the Convention
1. Each State Party shall take the necessary measures, including legislative
and administrative measures, in accordance with fundamental principles of its
domestic law, to ensure the implementation of its obligations under
this Convention.
2. Each State Party may adopt more strict or severe measures than those
provided for by this Convention for preventing and combating corruption.
Article 66
Settlement of disputes
l. States Parties shall endeavour to settle disputes concerning the
interpretation or application of this Convention through negotiation.
2. Any dispute between two or more States Parties concerning the
interpretation or application of this Convention that cannot be settled through
negotiation within a reasonable time shall, at the request of one of
those States
Parties, be submitted to arbitration. If, six months after the date of
the request for
arbitration, those States Parties are unable to agree on the organization of the
arbitration, any one of those States Parties may refer the dispute to
the International
Court of Justice by request in accordance with the Statute of the Court.
3. Each State Party may, at the time of signature, ratification, acceptance or
approval of or accession to this Convention, declare that it does not
consider itself
bound by paragraph 2 of this article. The other States Parties shall
not be bound by
paragraph 2 of this article with respect to any State Party that has made such a
reservation.
4. Any State Party that has made a reservation in accordance with
paragraph 3 of this article may at any time withdraw that reservation
by notification
to the Secretary-General of the United Nations.
42
Article 67
Signature, ratification, acceptance, approval and accession
1. This Convention shall be open to all States for signature from 9 to
11 December 2003 in Merida, Mexico, and thereafter at United Nations
Headquarters in New York until 9 December 2005.
2. This Convention shall also be open for signature by regional economic
integration organizations provided that at least one member State of such
organization has signed this Convention in accordance with paragraph 1 of this
article.
3. This Convention is subject to ratification, acceptance or approval.
Instruments of ratification, acceptance or approval shall be deposited with the
Secretary-General of the United Nations. A regional economic integration
organization may deposit its instrument of ratification, acceptance or
approval if at
least one of its member States has done likewise. In that instrument
of ratification,
acceptance or approval, such organization shall declare the extent of
its competence
with respect to the matters governed by this Convention. Such organization shall
also inform the depositary of any relevant modification in the extent of its
competence.
4. This Convention is open for accession by any State or any regional
economic integration organization of which at least one member State
is a Party to
this Convention. Instruments of accession shall be deposited with the Secretary-
General of the United Nations. At the time of its accession, a regional economic
integration organization shall declare the extent of its competence
with respect to
matters governed by this Convention. Such organization shall also inform the
depositary of any relevant modification in the extent of its competence.
Article 68
Entry into force
1. This Convention shall enter into force on the ninetieth day after the date
of deposit of the thirtieth instrument of ratification, acceptance, approval or
accession. For the purpose of this paragraph, any instrument deposited
by a regional
economic integration organization shall not be counted as additional to those
deposited by member States of such organization.
2. For each State or regional economic integration organization ratifying,
accepting, approving or acceding to this Convention after the deposit of the
thirtieth instrument of such action, this Convention shall enter into
force on the
thirtieth day after the date of deposit by such State or organization
of the relevant
instrument or on the date this Convention enters into force pursuant
to paragraph 1
of this article, whichever is later.
Article 69
Amendment
1. After the expiry of five years from the entry into force of this
Convention, a State Party may propose an amendment and transmit it to the
Secretary-General of the United Nations, who shall thereupon communicate the
proposed amendment to the States Parties and to the Conference of the States
43
Parties to the Convention for the purpose of considering and deciding on the
proposal. The Conference of the States Parties shall make every effort
to achieve
consensus on each amendment. If all efforts at consensus have been exhausted and
no agreement has been reached, the amendment shall, as a last resort,
require for its
adoption a two-thirds majority vote of the States Parties present and
voting at the
meeting of the Conference of the States Parties.
2. Regional economic integration organizations, in matters within their
competence, shall exercise their right to vote under this article with
a number of
votes equal to the number of their member States that are Parties to
this Convention.
Such organizations shall not exercise their right to vote if their member States
exercise theirs and vice versa.
3. An amendment adopted in accordance with paragraph 1 of this article is
subject to ratification, acceptance or approval by States Parties.
4. An amendment adopted in accordance with paragraph 1 of this article
shall enter into force in respect of a State Party ninety days after
the date of the
deposit with the Secretary-General of the United Nations of an instrument of
ratification, acceptance or approval of such amendment.
5. When an amendment enters into force, it shall be binding on those States
Parties which have expressed their consent to be bound by it. Other
States Parties
shall still be bound by the provisions of this Convention and any earlier
amendments that they have ratified, accepted or approved.
Article 70
Denunciation
1. A State Party may denounce this Convention by written notification to
the Secretary-General of the United Nations. Such denunciation shall become
effective one year after the date of receipt of the notification by
the Secretary-
General.
2. A regional economic integration organization shall cease to be a Party to
this Convention when all of its member States have denounced it.
Article 71
Depositary and languages
1. The Secretary-General of the United Nations is designated depositary of
this Convention.
2. The original of this Convention, of which the Arabic, Chinese, English,
French, Russian and Spanish texts are equally authentic, shall be
deposited with the
Secretary-General of the United Nations.
IN WITNESS WHEREOF, the undersigned plenipotentiaries, being duly
authorized thereto by their respective Governments, have signed this Convention.
--
उर्वशी शर्मा
"सूचना का अधिकार " हेल्पलाइन: 8081898081
yaishwaryaj@gmail.com
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