prop · GR0370 · 2004-03-04 00:00:00 — In view of the adoption by , at its 102nd Ses- sion on 4 1998, of Resolution (98) 7 authorising the partial and en- larged agreement establishing the Group of States against Corruption GRECO, which aims at improving the capacity of its members to fight corruption by following up compliance with their undertakings in this agreed as follows: Chapter I Use of terms Article 1 Use of terms For the purposes of this Convention: apublic official shall be understood by reference to the definition of official, public officer, mayor, minister or judge in the na- tional law of the State in which the person in question performs that function and as applied in its criminal law; bthe term judge referred to in sub-paragraph a above shall include prosecutors and holders of judicial offices; cin the case of proceedings involving a public official of another State, the prosecuting State may apply the definition of public official only insofar as that definition is compatible with its national law; dlegal person shall mean any entity having such status under the applicable national law, except for States or other public bodies in the exercise of State authority and for public international organisations. Chapter II Measures to be taken at national level Article 2 bribery of domestic public officials Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the promising, offering or giving by any person, directly or indirectly, of any undue advantage to any of its public offici- als, for himself or herself or for anyone else, for him or her to act or re- frain from acting in the exercise of his or her functions. Article 3 Passive bribery of domestic public officials Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the request or receipt by any of its public offici- als, directly or indirectly, of any undue advantage, for himself or herself or for anyone else, or the acceptance of an offer or a promise of such an advantage, to act or refrain from acting in the exercise of his or her func- Article 4 Bribery of members of domestic public assemblies Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the conduct referred to in Articles 2 and 3, when involving any person who is a member of any domestic public assembly exercising legislative or Article 5 Bribery of foreign public officials Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the conduct referred to in Articles 2 and 3, when involving a public official of any other State. Article 6 Bribery of members of foreign public assemblies Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the conduct referred to in Articles 2 and 3, when involving any person who is a member of any public assembly exercising legislative or administra- tive powers in any other State. Article 7 bribery in the private sector Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally in the course of business activity, the promising, offering or giving, directly or indirectly, of any undue advantage to any persons who direct or work for, in any capacity, private sector entities, for themselves or for anyone else, for them to act, or refrain from acting, in breach of their duties. Article 8 Passive bribery in the private sector Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, in the course of business activity, the request or receipt, directly or indirectly, by any persons who direct or work for, in any capacity, private sector entities, of any undue advantage or the pro- mise thereof for themselves or for anyone else, or the acceptance of an offer or a promise of such an advantage, to act or refrain from acting in breach of their duties. Article 9 Bribery of officials of international organisations Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the conduct referred to in Articles 2 and 3, when involving any official or other contracted employee, within the meaning of the staff regulations, of any public international or supranational organisation or body of which the Party is a member, and any person, whether seconded or not, carrying out functions corresponding to those performed by such officials or agents. Article 10 Bribery of members of international parliamentary as- semblies Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the conduct referred to in Article 4 when involving any members of parlia- mentary assemblies of international or supranational organisations of which the Party is a member. Article 11 Bribery of judges and officials of international courts Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the conduct referred to in Articles 2 and 3 involving any holders of judicial office or officials of any international court whose jurisdiction is accep- ted by the Party. Article 12 Trading in influence Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the promising, giving or offering, directly or indirectly, of any undue advantage to anyone who asserts or confirms that he or she is able to exert an improper influence over the decision- making of any person referred to in Articles 2, 4 to 6 and 9 to 11 in con- sideration thereof, whether the undue advantage is for himself or herself or for anyone else, as well as the request, receipt or the acceptance of the offer or the promise of such an advantage, in consideration of that influ- ence, whether or not the influence is exerted or whether or not the suppo- sed influence leads to the intended result. Article 13 Money laundering of proceeds from corruption offences Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the conduct referred to in on Laundering, Search, Seizure and Confiscation of the Products from Crime (ETS No. 141), Article 6, paragraphs 1 and 2, under the conditions referred to the- rein, when the predicate offence consists of any of the criminal offences established in accordance with Articles 2 to 12 of this Convention, to the extent that the Party has not made a reservation or a declaration with re- spect to these offences or does not consider such offences as serious ones for the purpose of their money laundering legislation. Article 14 Account offences Each Party shall adopt such legislative and other measures as may be necessary to establish as offences liable to criminal or other sanctions under its domestic law the following acts or omissions, when committed intentionally, in order to commit, conceal or disguise the offences refer- red to in Articles 2 to 12, to the extent the Party has not made a reserva- tion or a declaration: acreating or using an invoice or any other accounting document or record containing false or incomplete information; bunlawfully omitting to make a record of a payment. Article 15 Participatory acts Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law aiding or abetting the commission of any of the criminal offences established in accordance with this Convention. The provisions of this Convention shall be without prejudice to the pro- visions of any Treaty, Protocol or Statute, as well as their implementing texts, as regards the withdrawal of immunity. 1Each Party shall adopt such legislative and other measures as may be necessary to establish jurisdiction over a criminal offence established in accordance with Articles 2 to 14 of this Convention where: a the offence is committed in whole or in part in its territory; bthe offender is one of its nationals, one of its public officials, or a member of one of its domestic public assemblies; cthe offence involves one of its public officials or members of its domestic public assemblies or any person referred to in Articles 9 to 11 who is at the same time one of its nationals. 2Each State may, at the time of signature or when depositing its in- strument of ratification, acceptance, approval or accession, by a dec- laration addressed to the Secretary General of , declare that it reserves the right not to apply or to apply only in speci- fic cases or conditions the jurisdiction rules laid down in paragraphs 1 b and c of this article or any part thereof. 3If a Party has made use of the reservation possibility provided for in paragraph 2 of this article, it shall adopt such measures as may be ne- cessary to establish jurisdiction over a criminal offence established in accordance with this Convention, in cases where an alleged offender is present in its territory and it does not extradite him to another Par- ty, solely on the basis of his nationality, after a request for extradi- tion. 4This Convention does not exclude any criminal jurisdiction exercised by a Party in accordance with national law. Article 18 Corporate liability 1Each Party shall adopt such legislative and other measures as may be necessary to ensure that legal persons can be held liable for the cri- minal offences of bribery, trading in influence and money laundering established in accordance with this Convention, commit- ted for their benefit by any natural person, acting either individually or as part of an organ of the legal person, who has a leading position within the legal person, based on: a power of representation of the legal person; or an authority to take decisions on behalf of the legal person; or an authority to exercise control within the legal person; as well as for involvement of such a natural person as accessory or instigator in the above-mentioned offences. 2 Apart from the cases already provided for in paragraph 1, each Party shall take the necessary measures to ensure that a legal person can be held liable where the lack of supervision or control by a natural per- son referred to in paragraph 1 has made possible the commission of the criminal offences mentioned in paragraph 1 for the benefit of that legal person by a natural person under its authority. 3Liability of a legal person under paragraphs 1 and 2 shall not exclude criminal proceedings against natural persons who are perpetrators, in- stigators of, or accessories to, the criminal offences mentioned in pa- ragraph 1. Article 19 Sanctions and measures 1Having regard to the serious nature of the criminal offences establi- shed in accordance with this Convention, each Party shall provide, in respect of those criminal offences established in accordance with Ar- ticles 2 to 14, effective, proportionate and dissuasive sanctions and measures, including, when committed by natural persons, penalties involving deprivation of which can give rise to extradition. 2Each Party shall ensure that legal persons held liable in accordance with Article 18, paragraphs 1 and 2, shall be subject to effective, pro- portionate and dissuasive criminal or non-criminal sanctions, inclu- ding monetary sanctions. 3Each Party shall adopt such legislative and other measures as may be necessary to enable it to confiscate or otherwise deprive the instru- mentalities and proceeds of criminal offences established in accor- dance with this Convention, or property the value of which corres- ponds to such proceeds. Article 20 Specialised authorities Each Party shall adopt such measures as may be necessary to ensure that persons or entities are specialised in the fight against corruption. They shall have the necessary independence in accordance with the fundamen- tal principles of the legal system of the Party, in order for them to be able to carry out their functions effectively and free from any undue pressure. The Party shall ensure that the staff of such entities has adequate training and financial resources for their tasks. Article 21 Co-operation with and between national authorities Each Party shall adopt such measures as may be necessary to ensure that public authorities, as well as any public official, co-operate, in accordan- ce with national law, with those of its authorities responsible for investi- gating and prosecuting criminal offences: a by informing the latter authorities, on their own initiative, where the- re are reasonable grounds to believe that any of the criminal offences established in accordance with Articles 2 to 14 has been committed, bby providing, upon request, to the latter authorities all necessary in- formation. Article 22 Protection of collaborators of and witnesses Each Party shall adopt such measures as may be necessary to provide effective and appropriate protection for: athose who report the criminal offences established in accordance with Articles 2 to 14 or otherwise co-operate with the investigating or pro- secuting authorities; bwitnesses who give testimony concerning these of fences. Article 23 Measures to facilitate the gathering of evidence and the confiscation of proceeds 1Each Party shall adopt such legislative and other measures as may be necessary, including those permitting the use of special investigative techniques, in accordance with national law, to enable it to facilitate the gathering of evidence related to criminal offences established in accordance with Article 2 to 14 of this Convention and to identify, trace, freeze and seize instrumentalities and proceeds of corruption, or property the value of which corresponds to such proceeds, liable to measures set out in accordance with paragraph 3 of Article 19 of this Convention. 2Each Party shall adopt such legislative and other measures as may be necessary to empower its courts or other competent authorities to or- der that bank, financial or commercial records be made available or be seized in order to carry out the actions referred to in paragraph 1 of this article. 3Bank secrecy shall not be an obstacle to measures provided for in paragraphs 1 and 2 of this article. Chapter III Monitoring of implementation against Corruption (GRECO) shall monitor the im- plementation of this Convention by the Parties. Chapter IV International co-operation Article 25 General principles and measures for international co- 1The Parties shall co-operate with each other, in accordance with the provisions of relevant international instruments on international co- operation in criminal matters, or arrangements agreed on the basis of uniform or reciprocal legislation, and in accordance with their natio- nal law, to the widest extent possible for the purposes of investiga- tions and proceedings concerning criminal offences established in ac- cordance with this Convention. 2Where no international instrument or arrangement referred to in pa- ragraph 1 is in force between Parties, Articles 26 to 31 of this chapter shall apply. 3Articles 26 to 31 of this chapter shall also apply where they are more favourable than those of the international instruments or arrange- ments referred to in paragraph 1. Article 26 Mutual assistance 1The Parties shall afford one another the widest measure of mutual assistance by promptly processing requests from authorities that, in conformity with their domestic laws, have the power to investigate or prosecute criminal offences established in accordance with this Con- vention. 2Mutual legal assistance under paragraph 1 of this article may be refu- sed if the requested Party believes that compliance with the request would undermine its fundamental interests, national sovereignty, na- tional security or ordre public. 3Parties shall not invoke bank secrecy as a ground to refuse any co- operation under this chapter. Where its domestic law so requires, a Party may require that a request for co-operation which would invol- ve the lifting of bank secrecy be authorised by either a judge or another judicial authority, including public prosecutors, any of these authorities acting in relation to criminal offences. 1The criminal offences established in accordance with this Convention shall be deemed to be included as extraditable offences in any extra- dition treaty existing between or among the Parties. The Parties un- dertake to include such offences as extraditable offences in any ex- tradition treaty to be concluded between or among them. 2If a Party that makes extradition conditional on the existence of a treaty receives a request for extradition from another Party with which it does not have an extradition treaty, it may consider this Convention as the legal basis for extradition with respect to any cri- minal offence established in accordance with this Convention. 3Parties that do not make extradition conditional on the existence of a treaty shall recognise criminal offences established in accordance with this Convention as extraditable offences between themselves. 4Extradition shall be subject to the conditions provided for by the law of the requested Party or by applicable extradition treaties, including the grounds on which the requested Party may refuse extradition. 5If extradition for a criminal offence established in accordance with this Convention is refused solely on the basis of the nationality of the person sought, or because the requested Party deems that it has juris- diction over the offence, the requested Party shall submit the case to its competent authorities for the purpose of prosecution unless other- wise agreed with the requesting Party, and shall report the final out- come to the requesting Party in due course. Article 28 Spontaneous information Without prejudice to its own investigations or proceedings, a Party may without prior request forward to another Party information on facts when it considers that the disclosure of such information might assist the recei- ving Party in initiating or carrying out investigations or proceedings con- cerning criminal offences established in accordance with this Convention or might lead to a request by that Party under this chapter. Article 29 Central authority 1The Parties shall designate a central authority or, if appropriate, seve- ral central authorities, which shall be responsible for sending and answering requests made under this chapter, the execution of such requests or the transmission of them to the authorities competent for their execution. 2Each Party shall, at the time of signature or when depositing its in- strument of ratification, acceptance, approval or accession, commu- nicate to the Secretary General of the names and addresses of the authorities designated in pursuance of paragraph 1 of this article. Article 30 Direct communication 1The central authorities shall communicate directly with one another. 2In the event of urgency, requests for mutual assistance or communi- cations related thereto may be sent directly by the judicial authorities, including public prosecutors, of the requesting Party to such authori- ties of the requested Party. In such cases a copy shall be sent at the same time to the central authority of the requested Party through the central authority of the requesting Party. 3Any request or communication under paragraphs 1 and 2 of this artic- le may be made through the International Criminal Organisa- tion (). 4Where a request is made pursuant to paragraph 2 of this article and the authority is not competent to deal with the request, it shall refer the request to the competent national authority and inform directly the requesting Party that it has done so. 5Requests or communications under paragraph 2 of this article, which do not involve coercive action, may be directly transmitted by the competent authorities of the requesting Party to the competent autho- rities of the requested Party. 6Each State may, at the time of signature or when depositing its in- strument of ratification, acceptance, approval or accession, inform the Secretary General of that, for reasons of effici- ency, requests made under this chapter are to be addressed to its cen- tral authority. The requested Party shall promptly inform the requesting Party of the action taken on a request under this chapter and the final result of that action. The requested Party shall also promptly inform the requesting Party of any circumstances which render impossible the carrying out of the action sought or are likely to delay it significantly. Chapter V Final provisions Article 32 Signature and entry into force 1This Convention shall be open for signature by the member States of non-member States which have partici- pated in its elaboration. Such States may express their consent to be bound by: a signature without reservation as to ratification, acceptance or approval; or b signature subject to ratification, acceptance or approval, follo- wed by ratification, acceptance or approval. 2Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of . 3 This Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which fourteenth States have expressed their consent to be bound by the Convention in accordance with the provisions of paragraph 1. such State, which is not a member of the Group of States against Corruption (GRECO) at the time of ratification, shall automatically become a member on the date the Convention enters into force. 4In respect of any signatory State which subsequently expresses its consent to be bound by it, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of the expression of their consent to be bound by the Convention in accordance with the provisions of paragraph 1. signatory State, which is not a member of the Group of States against Corruption (GRECO) at the time of ratification, shall automa- tically become a member on the date the Convention enters into force in its respect. Article 33 Accession to the Convention 1After the entry into force of this Convention, nisters of , after consulting the Contracting Sta- tes to the Convention, may invite Community as well as any State not a member of the Council and not having participated in its elaboration to accede to this Convention, by a decision taken by the majority provided for in Article 20d of the Statute of the unanimous vote of the representatives of the Contracting States entitled to sit on . 2In respect of Community and any State acceding to it under paragraph 1 above, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of accession with the Secretary General of . Com- munity and any State acceding to this Convention shall automatically become a member of GRECO, if it is not already a member at the time of accession, on the date the Convention enters into force in its respect. Article 34 Territorial application 1Any State may, at the time of signature or when depositing its in- strument of ratification, acceptance, approval or accession, specify the territory or territories to which this Convention shall apply.