15TH UNAFEI UNCAC TRAINING PROGRAMMEVISITING
EXPERTS’ PAPERSVISITING EXPERTS’ PAPERS

THE BASICS AND THE ESSENCE OF THE UNITED NATIONS CONVENTIONAGAINST CORRUPTION (UNCAC): STATUS AND STRUCTURE, SPECIFICPROVISIONS OF THE UNCAC REGARDING PREVENTIVE MEASURES,
CRIMINALIZATION, LAW ENFORCEMENT AND ASSET RECOVERY
Dimitri Vlassis*

I. Introduction: status and significance of the UNCAC
Adopted by the United Nations General Assembly in its resolution 58/4 of 31 October 2003 and having
entered into force on 14 December 2005, the United Nations Convention against Corruption (UNCAC) isthe first global legally binding anti-corruption instrument. It provides a comprehensive and multidisciplinary
framework for the prevention of and fight against corruption at the national level, as well as for effective
regional and international cooperation. With 162 States Parties1, it has nearly reached universal adherence.
What follows is a summary of the substantive content and structure of the Convention, as well as an
overview of the institutional framework which was put in place in order to support Member States instrengthening their legal, institutional, and operational capacities to implement the provisions of UNCAC
at the domestic level, and to cooperate internationally towards effectively combating the transnational
dimensions of corruption.

II. The “substantive corpus” of the Convention: a brief
overview of the UNCAC provisions
A. Chapter II (Preventive measures)
The UNCAC devotes an entire chapter to the prevention of corruption, thus demonstrating thesignificance of preventive action against this scourge. The Convention requires States Parties to introduce
effective anti-corruption policies and practices (art. 5). It calls for the introduction of a variety of measuresconcerning both the public and the private sectors. Such measures include institutional arrangements,
such as the establishment of specific anti-corruption bodies with a mandate to implement preventive anticorruption policies and practices (art. 6); codes of conduct and measures requiring public officials to makedeclarations regarding financial or other aspects that may cause conflicts of interests (art. 8); and policies
promoting good governance, the rule of law, transparency and accountability (art. 7), including promoting
transparency in the financing of election campaigns and political parties (art. 7 para. 3). The Convention pays
special attention to the issue of public procurement, as a sector particularly prone to corruption. It further
contains measures to promote transparency and accountability in the management of public finances (art. 9).
The Convention also enjoins States Parties to take measures for the prevention of corruption in the
judiciary (art. 11). In addition, concrete measures are specified for the prevention of money-laundering
practices related to corruption (art. 14).
Apart from the development or reinforcement of preventive policies in the public sector, States Parties tothe UNCAC are also required to take appropriate preventive measures and establish regulatory regimes inorder to prevent corruption in the private sector as well (art. 12).
The Convention further calls on States Parties to promote actively the involvement of non-governmental* Chief, Corruption and Economic Crime Branch, Division for Treaty Affairs, United Nations Office on Drugs and Crime,

Vienna. The opinions expressed in this article are those of the author and do not reflect the views of the United Nations. I
would like to express my gratitude to Mr. Dimosthenis Chrysikos whose assistance was indispensable to this article.
1 Status as of 28 September 2012.

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and community-based organizations, as well as other elements of civil society, and to undertake public
information activities and education programmes for the purpose of raising public awareness of the threats
posed by corruption and the most suitable methods to combat it (art. 13).

B. Chapter III (Criminalization and Law Enforcement)
The UNCAC includes a comprehensive set of criminalization provisions, both mandatory and optional,
covering a wide range of conduct related to corruption. Going beyond the existing regional instruments
which are designed to operate in a more limited environment, the UNCAC intends to serve as a vehicle tofacilitate, among others, effective action against corruption from a criminal law perspective.
States Parties to the UNCAC are, thus, obliged to establish as criminal offences the following conduct:
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Active and passive bribery of national public officials (art. 15);2
Active bribery of foreign public officials and officials of public international organizations (art. 16,
para. 1);3Embezzlement, misappropriation or other diversion by a public official (art. 17);4
Laundering of proceeds of crime (art. 23);5
Obstruction of justice (art. 25);6 andParticipation in any capacity such as an accomplice, assistant or instigator in an offence establishedin accordance with the Convention (art. 27, para. 1).7

In addition, States Parties are further required to consider the criminalization of the following conduct:•

Passive bribery of foreign public officials and officials of public international organizations (art. 16,
para. 2);8

2 In accordance with art. 15, States Parties must establish as criminal offences the following conduct:(a) Active bribery, defined as the promise, offering or giving to a public official of an undue advantage, in order to act or
refrain from acting in matters relevant to official duties. Legislation is required to implement this provision;(b) Passive bribery, defined as the solicitation or acceptance by a public official of an undue advantage, in order to act or
refrain from acting in matters relevant to official duties. Legislation is required to implement this provision.
3 According to art. 16, para. 1, States Parties must establish as a criminal offence the promise, offering or giving of an undue
advantage to a foreign public official or official of an international organization, in order:(a) To obtain or retain business or other undue advantage in international business;(b) That the official take action or refrain from acting in a manner that breaches an official duty.
4 In accordance with art. 17, States Parties are required to establish as a criminal offence the embezzlement, misappropriation
or diversion of property, funds, securities or any other item of value entrusted to a public official in his or her official capacity,
for the official’s benefit or the benefit of others.
5 In line with art. 23, States Parties must establish the following offences as crimes:(a) Conversion or transfer of proceeds of crime (para. 1 (a) (i));(b) Concealment or disguise of the nature, source, location, disposition, movement or ownership of proceeds of crime(para. 1 (a) (ii)).
Subject to the basic concepts of their legal system, States must also criminalize:(a) Acquisition, possession or use of proceeds of crime (para. 1 (b) (i));(b) Participation in, association with or conspiracy to commit, attempts to commit, and aiding, abetting, facilitating andcounselling the commission of any of the offences mandated by article 23 (para. 1 (b) (ii)).
Under art. 23, States Parties must also apply these offences to proceeds generated by a wide range of predicate offences (para. 2 (a) -(c) ).
6 In accordance with art. 25, States Parties must establish the following two criminal offences:(a) Use of physical force, threats or intimidation or the promise, offering or giving of an undue advantage either toinduce false testimony or to interfere in the giving of testimony or the production of evidence in proceedings inrelation to offences covered by the Convention (art. 25, subpara. (a) );(b) 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 offences covered by the Convention (art. 25, subpara. (b) ).
7 Art. 27, para. 1, requires that States Parties establish as a criminal offence, in accordance with their domestic law, theparticipation in any capacity such as an accomplice, assistant or instigator in an offence established in accordance with theConvention. An interpretative note indicates that the formulation of paragraph 1 of article 27 was intended to capture different
degrees of participation, but was not intended to create an obligation for States Parties to include all of those degrees in theirdomestic legislation (A/58/422/Add.1, para. 33).
8 Art. 16, para. 2, requires that States Parties consider establishing as a criminal offence, when committed intentionally, thesolicitation or acceptance by a foreign public official or an official of a public international organization, directly or indirectly, ofan undue advantage, for the official himself or herself or another person or entity, in order that the official act or refrain fromacting in the exercise of his or her official duties.

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Active and passive trading in influence (art. 18);9
Abuse of functions (art. 19);10Illicit enrichment (art. 20);11
Active and passive bribery in the private sector (art. 21);12
Embezzlement of property in the private sector (art. 22);13Concealment (art. 24);14 andAny attempt to commit, or preparation for, an offence established in accordance with the Convention(art. 27, paras. 2 and 3).

The inclusion of optional criminalization provisions was deemed necessary because of constitutional
impediments or other fundamental legal principles in some countries which prevent them from establishing
the relevant criminal offences in their domestic law.15
Several articles in the “criminalization part” of the UNCAC contain safeguard clauses which operate as
9 Under art. 18, States Parties must consider establishing as criminal offences:(a) Promising, offering, or giving a public official an undue advantage in exchange for that person abusing his or her
influence with an administration, public authority or State authority in order to gain an advantage for the instigator;(b) Solicitation or acceptance by a public official, of an undue advantage in exchange for that official abusing his or her
influence in order to obtain an undue advantage from an administration, public authority, or State authority.
10 In accordance with art. 19, States Parties must consider establishing as a criminal offence the abuse of function or position, thatis the performance of, or failure to perform, an act in violation of the law by a public official in order to obtain an undue advantage.
11 Pursuant to art. 20, States Parties must consider establishing as a criminal offence illicit enrichment, that is a significant
increase in assets of a public official that cannot reasonably be explained as being the result of his or her lawful income.
12 In accordance with art. 21, States Parties must consider establishing as a criminal offence:(a) Promising, offering, or giving an undue advantage to a person who directs or works for a private sector entity, inorder that he or she take action or refrain from acting in a manner that breaches a duty (subpara. (a) );(b) Soliciting or accepting undue advantage by a person who directs or works for a private sector entity, for him or
herself or for another person, in order that he or she take action or refrain from acting in a manner that breaches aduty (subpara. (b) ).
13 Pursuant to art. 22, States Parties must consider establishing as a criminal offence the intentional embezzlement by aperson who directs or works in a private sector entity, of property, private funds, or other thing of value entrusted to him or
her by virtue of his or her position.
14 According to art. 24, States Parties must consider establishing as a criminal offence concealment or continued retention ofproperty in other situations besides those set forth in art. 23, where the person knows that the property is the result of any of
the offences established in the Convention.
15 An interesting example is that of illicit enrichment. The obligation for States Parties to consider creating such an offence
is subject to their constitution and the fundamental principles of their legal system. This effectively recognizes that the illicit
enrichment offence, in which the defendant has to provide a reasonable explanation for the significant increase in his or her
assets, may in some jurisdictions be considered as contrary to the right to be presumed innocent until proven guilty under
the law. The presumption of innocence is invoked because the crime of illicit enrichment hinges upon presuming that theaccumulated wealth is corruptly acquired, unless the contrary is proved.
Therefore it is important for national legislators to take into consideration when drafting relevant legislation potential conflicts
with human rights law standards of fair trial and due process rights, which, particularly with regard to the presumption of
innocence, may entail the following:• that it is upon the prosecution to prove the guilt of the accused person (burden of proof);• that it is the right of the accused not to testify against himself/herself; and• that the accused has a right of silence.
As far as the burden of proof is concerned, it has been argued, thus raising concerns about potential infringements of theabovementioned fair trial standards, that the prosecution is relieved of the full burden of proof, since it needs not directly adduce
evidence of corruption, but shifts the burden of proof to the accused requiring him to refute that the wealth is illicitly acquired.
However, the point has also been clearly made that there is no presumption of guilt and that the burden of proof remains on
the prosecution, as it has to demonstrate that the enrichment is beyond one’s lawful income. The prosecution merely suspects
that the wealth of the accused was illicitly acquired and places the burden of proof on the accused to adduce the contrary. Thismay, thus, be viewed as a rebuttable presumption. Once such a case is made, the defendant can then offer a reasonable orcredible explanation.
National jurisprudence has provided examples of shifting the burden of proof so as to give way to statutory exceptions andpublic policy needs. In other cases, arguments were made in favour of striking a fair balance between public and individualinterests. In general, there is always a need to comply with the so called “proportionality principle” when judging on theimpact of such criminalization measures on human rights standards.

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filters regarding the obligations of States Parties in case of conflicting constitutional or fundamental rules,
by providing, for example, that States must adopt certain measures “subject to [their] constitution and thefundamental principles of [their] legal system” (art. 20), or “subject to the basic concepts of [their] legal
system” (art. 23, para. 1(b)).
According to art. 65, para. 1, of the UNCAC, “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”. The purpose of this provision isto ensure that national legislators act to implement the provisions of the Convention in conformity with thefundamental principles of their legal system.
Implementation may be carried out through new laws or amendments of existing ones. Domestic
offences established in accordance with the requirements of the UNCAC, whether based on pre-existinglaws or newly established ones, will often correspond to offences under the Convention in name and terms
used, but this is not essential. Close conformity is desirable, but is not required, as long as the range of acts
covered by the Convention is criminalized.
Pursuant to art. 65 para. 2, of the UNCAC, “each State Party may adopt more strict or severe measuresthan those provided for by this Convention for preventing and combating corruption.”
The UNCAC has further included a wide array of criminal justice and law enforcement measures in
its Chapter III, destined to support the criminalization provisions and ensure their effectiveness. Suchmeasures include the following:•••

Establishment of jurisdiction over offences falling within its scope of application (art. 42);16
Liability of legal persons (art. 26);17
Prosecution, adjudication and sanctions in corruption-related cases (art. 30);18

16 The UNCAC requires that States Parties establish jurisdiction when the offences are committed in their territory or

on board aircraft and vessels registered under their laws. States Parties are also required to establish jurisdiction in cases
where they cannot extradite a person on grounds of nationality. In these cases, the general principle aut dedere aut judicare(extradite or prosecute) would apply (see arts. 42, para. 3, and 44, para.11). In addition, States Parties are invited to consider
the establishment of jurisdiction in cases where their nationals are victimized, where the offence is committed by a national orstateless person residing in their territory, where the offence is linked to money-laundering planned to be committed in theirterritory, or the offence is committed against the State (art. 42, para. 2). Finally, States Parties are required to consult withother interested States in appropriate circumstances in order to avoid, as much as possible, the risk of improper overlappingof exercised jurisdictions (art. 42, para. 5). States Parties may also wish to consider the option of establishing their jurisdiction
over offences established in accordance with the Convention against Corruption when extradition is refused for reasons otherthan nationality (art. 42, para. 4).
17 Art. 26 requires that States Parties adopt such measures as may be necessary to establish the liability of legal persons forparticipation in offences covered by the UNCAC. The obligation to provide for the liability of legal entities is mandatory, to theextent that this is consistent with each State’s legal principles. There is no obligation, however, to establish criminal liability inview of the divergent approaches followed in different legal traditions. Civil or administrative forms of liability for legal entities
are sufficient to meet the requirement set forth in art. 26. Nevertheless, whatever form it takes, the liability of legal persons
shall not affect the criminal liability of the natural persons who have committed the offences. In addition, States Parties havean obligation to provide for effective, proportionate and dissuasive sanctions, which may be criminal or non-criminal and may
also include monetary sanctions.
18 Art. 30 encompasses provisions with regard to the investigation and prosecution of corruption-related offences and theimportant complex issue of immunities. The article devotes significant attention to sanctions – both criminal sanctions strictu
sensu and “ancillary” sanctions – as well as provisions on disciplinary measures and sanctions relating to the gravity of theoffence or linked to the nature of the offence, such as disqualification. Finally, the article deals with the rehabilitation of offenders.
Art. 30 requires that:•  States Parties provide for sanctions which take into account the “gravity” of that offence (para. 1).
•  States Parties provide for 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 the Convention (para. 2).
•  Decisions on release pending trial or appeal take into consideration the need to ensure the presence of the defendantat subsequent criminal proceedings (para. 4).
•  The gravity of the offences concerned should be taken into account when considering the eventuality of early78

15TH UNAFEI UNCAC TRAINING PROGRAMMEVISITING EXPERTS’ PAPERS

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Long statute of limitations for offences covered by the Convention (art. 29);19
The freezing, seizure and confiscation of proceeds of crime derived from offences established inaccordance with the Convention (art. 31);20
The protection of witnesses, experts and victims (art. 32);21The protection of reporting persons (art. 33);22
The establishment of independent authorities specialized in combating corruption through law
enforcement (art. 36);23

release or parole of persons convicted of such offences (para. 5).
Besides these mandatory provisions, art. 30 stipulates in a non-mandatory manner that:•  States Parties consider establishing procedures through which a public official accused of an offence established inaccordance with the Convention may, where appropriate, be removed, suspended or reassigned by the appropriate
authority (para. 6).
•  States Parties consider establishing procedures for the disqualification for a period of time determined by domestic
law, of persons convicted of offences established in accordance with the Convention from: (a) holding public office;and (b) holding office in an enterprise owned in whole or in part by the State (para. 7).
•  States Parties endeavour to promote the reintegration into society of persons convicted for offences establishedpursuant to the Convention (para. 10).
19 Art. 29 lays down the obligation of States Parties to establish, where appropriate, under their domestic law a long statute oflimitations period in which to commence proceedings for any offence established in accordance with the Convention, as well as
to establish a longer period or provide for the suspension of the statute of limitations in cases where the alleged offender has
evaded the administration of justice.
20 Article 31 deals with confiscation — the permanent deprivation of property by order of a court or other competent authority,
as defined by art. 2(g) of the Convention — as the most important legal tool to deprive offenders of their ill-gotten gains. The
regime promoted by the Convention revolves around the concept of the confiscation of “proceeds of crime ”, defined by art.
2(e) of the Convention as “any property derived from or obtained, directly or indirectly, through the commission of an offence. ”
Art. 31 also establishes the minimum scope of the confiscation of the proceeds of crime in paras. 4, 5 and 6. As acomplementary measure, para. 8 recommends that States Parties consider reversing the burden of proof in order to facilitate
the determination of the origin of such proceeds, a concept already applied in several jurisdictions which needs, however, tobe distinguished from a reversal of the burden of proof regarding the elements of the offence which is directly linked with thepresumption of innocence.
Art. 31 further requires specific measures for two other important elements of the confiscation regime: international
cooperation (para. 7) and the protection of third-party rights (para. 9).
21 Art. 32 includes both mandatory and non-mandatory provisions. As a mandatory provision, art. 32, para. 1, requires thateach State Party must 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 the Convention and, as appropriate, for their relatives and other persons close tothem. Paragraph 2 specifies certain measures that State parties may envisage in order to provide for the necessary protectionof witnesses and experts as required by para.1. While para. 2(a) includes a provision on procedures for the physical protection
against intimidation and retaliation, para. 2 (b) focuses on evidentiary rules ensuring the safety of witnesses and experts withregard to their testimony.
Para. 3 is a non-mandatory provision requiring State Parties to consider implementing cross-border witness protection throughrelocating victims who may be in danger in other countries. Para. 4 requires States Parties to apply the provisions of art. 32 tovictims insofar as they are witnesses. Art. 32, para. 5, requires States Parties to enable the views and concerns of victims to bepresented and considered at appropriate stages of criminal proceedings against offenders. This provision is relevant in cases inwhich a victim is not a witness.
22 Art. 33 is a non-mandatory provision. However, States Parties may wish to keep in mind that the provision complements thearticle dealing with the protection of witnesses and experts. Art. 33 is intended to cover those individuals who may possess
information which is not of such detail to constitute evidence in the legal sense of the word. Such information is likely to
be available at a rather early stage of a case and is also likely to constitute an indication of wrongdoing. In corruption cases,
because of their complexity, such indications have proved to be useful to alert competent authorities and permit them to makekey decisions about whether to launch an investigation. The UNCAC uses the term “reporting persons”. This was deemed tobe sufficient to reflect the essence of the intended meaning: while making clear that there is a distinction between the persons
referred to with this term and witnesses. It was also deemed preferable to the term “whistle-blowers” which is a colloquialismthat cannot be accurately and precisely translated into many languages.
23 Art. 36 mandates States Parties to have in place a body or bodies or persons specialized in combating corruption throughlaw enforcement, performing investigative and possibly prosecutorial functions.

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The cooperation with law enforcement authorities (art. 37);24
The cooperation between national authorities (art. 38);25
The cooperation between national authorities and entities of the private sector, in particular financial
institutions, relating to matters involving the commission of corruption-related offences (art. 39);26
The curtailment of bank secrecy in the case of domestic criminal investigations of relevant offences(art. 40).27

C. Chapter IV (International Cooperation)
Although beyond the scope of the present article, it should be noted that the UNCAC incorporates
detailed and extensive provisions on international cooperation, covering all its forms, namely extradition(art. 44), mutual legal assistance (art. 46), transfer of sentenced persons (art. 45), transfer of criminal
proceedings (art. 47), law enforcement cooperation (art. 48), joint investigations (art. 49) and cooperation
for using special investigative techniques (art. 50). These provisions are generally based on the precedent of
the United Nations Convention against Transnational Organized Crime (UNTOC), sometimes going beyond
it, and provide a much more comprehensive legal framework on relevant matters than that of the existingregional instruments.
D. Chapter V (Asset Recovery)
In what has been recognized as a major breakthrough compared to existing international instruments against
corruption, the UNCAC contains a comprehensive chapter (chapter V) on asset recovery. Beginning with statingthat the return of assets pursuant to that chapter is a “fundamental principle” and that States Parties shall afford
one another the widest measure of cooperation and assistance in that regard (art. 51), the Convention includes
substantive provisions laying down specific measures and mechanisms for cooperation with a view to facilitating
the repatriation of assets derived from offences covered by the UNCAC to their country of origin.
Chapter V also provides for mechanisms for direct recovery of property (art. 53) and a comprehensive
framework for international cooperation (arts. 54-55), which incorporates, mutatis mutandis , the more generalmutual legal assistance requirements and sets forth procedures for international cooperation in confiscation
matters. These are important powers, as criminals frequently seek to hide proceeds, instrumentalities andevidence of crime in more than one jurisdiction, in order to thwart efforts to locate and seize them.28, 29
24 As a mandatory provision, art. 37 obliges States Parties to take appropriate measures to encourage persons who participate

or who have participated in the commission of an offence established in accordance with the Convention to supply information
useful to competent authorities for investigative and evidentiary purposes and to provide factual, specific help to competentauthorities that may contribute to depriving offenders of the proceeds of crime and to recovering the proceeds. Moreover, art.
37 obliges States Parties to protect such persons, mutatis mutandis , as provided for in art. 32, para. 4.
25 Art. 38 requires States Parties to take all necessary measures to encourage cooperation between public authorities or
public officials and authorities responsible for investigating and prosecuting criminal offences established in arts. 15, 21 and23 of the Convention (bribery of national public officials, bribery in the private sector and laundering of the proceeds of crime
respectively). This provision is particularly relevant to cases of early notification of potential offences to agencies with thepowers and expertise to investigate and prosecute them. Such notification is essential to ensure that perpetrators do not flee
the jurisdiction or tamper with evidence and the movement of assets can be prevented or monitored.
26 Art. 39 complements art. 38 in that it encourages cooperation between public authorities and private sector entities. Many
corruption cases are complex and covert, and will not come to the attention of the relevant authorities or their investigation
would be frustrated without the cooperation of private sector entities, especially financial institutions, as well as private
citizens. Early notification by relevant private sector bodies or early cooperation with investigative agencies is important to
the identification and safeguarding of potential evidence and the initiation of inquiries. In particular, the role of the financial
institutions – or those institutions involved in high-value commercial activity - is central to the effective prevention,
investigation and prosecution of offences established in accordance with the UNCAC. While financial institutions haveobligations to report suspicious activity or transactions, this should not be seen as the limit to cooperation where an institution
has suspicions about other activities, such as opening of accounts or other activity.
27 States Parties are required in art. 40 to remove any obstacle that may arise from protective laws and regulations to domestic
criminal investigations relating to offences established under the UNCAC.
28 Art. 55, para. 1, in particular, mandates a State Party to provide assistance “to the greatest extent possible” in accordancewith domestic law, when receiving a request from another State Party having jurisdiction over an offence established inaccordance with the UNCAC for confiscation of proceeds of crime, property, equipment or other instrumentalities, either byrecognizing and enforcing a foreign confiscation order, or by bringing an application for a domestic order before the competentauthorities on the basis of information provided by the other State Party.
29 Under art. 54, para, 1 (c) , of the UNCAC, States Parties, in order to provide mutual legal assistance pursuant to art. 55

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With regard to the return and disposition of assets, chapter V of the Convention incorporates a series ofprovisions that favour return to the requesting State Party, depending on how closely the assets are linked to
it in the first place. Thus, the Convention imposes the obligation for States Parties to adopt such legislativeand other measures that would enable their competent authorities, when acting on a request made byanother State Party, to return confiscated property, taking into account the rights of bona fide third parties
and in accordance with the fundamental principles of their domestic law (art. 57, para. 2).
In particular, the Convention requires States Parties that receive a relevant request in the case ofembezzlement of public funds or of laundering of embezzled public funds to return the confiscated property
to the requesting State on the condition of a final judgment in the latter State (although this condition canbe waived) (art. 57, para. 3 (a)). In the case of any other offences covered by the Convention, two additional
conditions for the return are recognized alternatively, i.e. that the requesting State reasonably establishes
its prior ownership of such confiscated property or that the requested State recognizes damage to therequesting State as a basis for returning the confiscated property (art. 57, para. 3 (b)). In all other cases, therequested State shall give priority consideration to returning confiscated property to the requesting State,
returning such property to its prior legitimate owners or compensating the victims (art. 57, para. 3 (c)).

III. The “institutional architecture” of the Convention:
the Conference of the States Parties to the UNCAC andits supportive intergovernmental bodies/processes
A. The Conference of the States Parties to the UNCACThe Conference of the States Parties to UNCAC was established, pursuant to article 63 of the Convention,
to improve the capacity of, and cooperation between, States Parties to achieve the objectives of the Convention,and to promote and review its implementation. The Conference of the States Parties to the UNCAC is tasked
with supporting States Parties and signatories in their implementation of the Convention, and provides policy
guidance to UNODC for the development and execution of anti-corruption related activities.
The Conference now meets every two years. Its first session was held in Amman, Jordan in December
2006; the second in Nusa Dua, Indonesia, in January 2008; the third in Doha, Qatar, in November 2009;
and the fourth session in Marrakech, Morocco, in October 2011. The fifth and the sixth sessions of
the Conference are scheduled to take place in Panama in 2013 and in the Russian Federation in 2015
respectively.
The Conference has adopted far-reaching resolutions at each of its sessions and has mandated UNODC to
implement them, including through the development of technical assistance projects. At its third session, it
adopted landmark resolution 3/1 on the review of the implementation of the Convention. In that resolution,with respect to property acquired through or involved in the commission of an offence established in accordance with theConvention, must, in accordance with their domestic law, 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 ofdeath, flight or absence or in other appropriate cases.
While confiscation without a criminal conviction (“NCB confiscation”) should never be a substitute for criminal prosecution,in many instances, such confiscation may be the only way to recover the proceeds of corruption and to exact some measureof justice. Countries that do not have the ability to confiscate without a conviction are challenged because they lack one of theimportant tools available to recover stolen assets. NCB confiscation is valuable because the influence of corrupt officials andother practical realities may prevent criminal investigations entirely, or delay them until after the official has died or absconded.
Alternatively, the corrupt official may have immunity from prosecution. Because an NCB confiscation regime is not dependent ona criminal conviction, it can proceed regardless of death, flight, or any immunity the corrupt official might enjoy.
Although an increasing number of jurisdictions are adopting legislation which permits confiscation without a conviction,international cooperation in NCB confiscation cases remains quite challenging for a number of reasons. First, it is a growing
area of law that is not yet universal; therefore not all jurisdictions have adopted legislation permitting NCB confiscation or
enforcement of foreign NCB orders or both. Secondly, even where NCB confiscation exists, the systems vary significantly. Somejurisdictions conduct NCB confiscation as a separate proceeding in civil courts (also known as civil confiscation) with a lower
standard of proof than in criminal cases (balance of probabilities); others use NCB confiscation in criminal courts and require
the higher criminal standard of proof. Some jurisdictions will only pursue NCB confiscation after criminal proceedings wereabandoned or unsuccessful, while others pursue NCB confiscation in proceedings parallel to the related criminal proceedings.

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the Conference established a review mechanism aimed at assisting countries to meet the objectives of theConvention through a peer review process.
In its capacity as the guardian of the implementation of the UNCAC and Secretariat of the Conference of
the States Parties to the Convention, UNODC is mandated to support the newly established mechanism forthe review of implementation of the Convention and assist the Conference in identifying technical assistancepriorities and developing appropriate responses to corruption.
An overview of the mechanism and the main findings of the reviews completed within the first two yearsof the review cycle of the mechanism are presented in a separate paper.

B. Implementation Review Group (IRG)
As mentioned above, at its third session in Doha in November 2009, the Conference adopted landmark
resolution 3/1 on the review of the implementation of the Convention. In that resolution, the Conference
recalled article 63 of the UNCAC, especially its paragraph 7, according to which the Conference should
establish, if it deemed it necessary, any appropriate mechanism or body to assist in the effective
implementation of the Convention. In the same resolution — annexed to it — the Conference adopted theterms of reference of the Mechanism for the Review of Implementation of the United Nations Convention
against Corruption.
In accordance with the terms of reference for the Review Mechanism, a specific body was establishedwithin its framework (Implementation Review Group – IRG) entrusted with the task to have an overview of
the review process in order to identify challenges and good practices, and to consider technical assistancerequirements in order to ensure effective implementation of the Convention.
In resolution 3/1, the Conference decided that the Implementation Review Group shall be in charge offollowing up and continuing the work undertaken previously by the Open-ended Intergovernmental Working
Group on Technical Assistance.

C. The Working Group on Prevention
At its third session, the Conference of the States Parties to the Convention decided, in its resolution 3/2,
to establish an open-ended intergovernmental working group to advise and assist it in the implementationof its mandate on the prevention of corruption. The Conference also decided that the working group should
perform the following functions: (a) Assist the Conference in developing and accumulating knowledge in
the area of prevention of corruption; (b) facilitate the exchange of information and experience among States
on preventive measures and practices; (c) facilitate the collection, dissemination and promotion of bestpractices in preventing corruption; and (d) assist the Conference in encouraging cooperation among all
stakeholders and sectors of society in order to prevent corruption.
At its first session, held in Vienna from 13 to 15 December 2010, the Working Group structured its
discussions along the following four themes: (a) the development and accumulation of knowledge in thearea of prevention of corruption; (b) exchange of information and experience among States on preventive
measures and practices; (c) collection, dissemination and promotion of best practices in the preventionof corruption; and (d) cooperation among all stakeholders and sectors of society in order to prevent
corruption. A variety of issues were discussed, such as good practices in the prevention of corruption andregulation models in the public sector; good practices in the prevention of corruption in public procurement;
methodologies, including evidence-based approaches, for assessing areas of special vulnerability tocorruption in the public and private sector; alignment of rules and regulations of the members of the United
Nations system Chief Executive Board to the principles of the Convention; and best practices for promoting
responsible and professional reporting on corruption for journalists.
At its second session, held in Vienna from 22 to 24 August 2011, the Working Group discussed goodpractices and initiatives in the prevention of corruption, specifically: (i) awareness-raising policies andpractices, with special reference to articles 5, 7, 12 and 13 of the UNCAC; and (ii) the public sector and theprevention of corruption, including codes of conduct (article 8) and public reporting (article 13).

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In its resolution 4/3, entitled “Marrakech declaration on the prevention of corruption”, the Conferenceof the States Parties decided that the Working Group should continue its work to advise and assist theConference in the implementation of its mandate on the prevention of corruption; and should further
continue to perform the functions of an international observatory gathering existing information on goodpractices in preventing corruption, as well as provide information on lessons learned, the adaptability ofgood practices and related technical assistance activities.
In the same resolution, the Conference also decided that the future meetings of the Working Group will
follow a multi-year workplan for the period up to 2015, when the second cycle of the Implementation Review
Mechanism begins.
As proposed at its 2011 meeting, the Working Group focused at its third session, held in Vienna from 27
to 29 August 2012, its attention on the following topics: (a) Implementation of article 12 of the Convention,
including the use of public-private partnerships; and (b) Conflicts of interest, reporting acts of corruption
and asset declarations, particularly in the context of articles 7-9 of the Convention.
In addition, the Working Group adopted the proposed topics in the workplan for 2013 and further adopted
on an indicative basis topics for 2014 and 2015, subject to reconsideration at subsequent sessions of theGroup and the Conference of the States Parties, as follows:2013:• Integrity in the judiciary, judicial administration and prosecution services (article 11);• Public education, in particular the engagement of children and young people and the role of mass
media and the Internet (article 13).
2014:
• Mandates of anti-corruption body or bodies in respect of prevention (article 6);• Public sector legislative and administrative measures, including measures to enhance transparency
in the funding of candidatures for elected public office and, where applicable, the funding of politicalparties (articles 5 and 7).
2015:• Measures to prevent money-laundering (article 14);• Integrity in public procurement processes and transparency and accountability in the management ofpublic finances (article 9 and 10).

D. The Working Group on Asset Recovery
In its resolution 1/4, adopted at its first session, the Conference of the States Parties to the United
Nations Convention against Corruption established the Open-ended Intergovernmental Working Group on
Asset Recovery. The Conference decided that the objective of the Working Group was to advise and assist
the Conference in the implementation of its mandate on the return of proceeds of corruption.
In the same resolution, the Conference defined the functions of the Working Group, including assisting
the Conference in developing cumulative knowledge in the area of asset recovery, particularly on theimplementation of articles 52-58 of the United Nations Convention against Corruption, such as throughmechanisms for locating, freezing, seizing, confiscating and returning the instruments and proceeds ofcorruption; identifying capacity-building needs and encouraging cooperation among relevant existing
bilateral and multilateral initiatives; facilitating the exchange of information, good practices and ideas among
States; and building confidence and encouraging cooperation between requesting and requested States.
The Working Group held its first meeting in Vienna, on 27 and 28 August 2007, its second meeting on 25
and 26 September 2008, its third meeting on 14 and 15 May 2009, its fourth meeting on 16 and 17 December
2010, its fifth meeting on 25 and 26 August 2011 and its sixth meeting on 30 and 31 August 2012.
Previous meetings of the Working Group have focused on three main themes: developing cumulative83

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knowledge; building confidence and trust between requesting and requested States; and technicalassistance, training and capacity-building.
With respect to the development of cumulative knowledge on asset recovery, the continuing need toovercome practical challenges and barriers faced by States Parties in the implementation of chapter V of theConvention, including the lack of capacity of practitioners to deal with asset recovery cases, has been noted
consistently.
The importance of building confidence and trust between requesting and requested States for asset
recovery has also been stressed in the discussions of the Working Group, in particular as a means ofincreasing political will, developing a culture of mutual legal assistance (especially for the benefit ofdeveloping countries) and paving the way for successful international cooperation.
The Working Group has further discussed types of technical assistance relevant to asset recovery, suchas capacity-building and training, gap analyses, assistance in drafting new legislation and the facilitationof the mutual legal assistance process. It has recognized the urgent and constant need to provide training
to personnel of authorities involved in asset recovery, with a view to enhancing their capacity in tracing,
freezing, seizing and confiscating proceeds of corruption.
The Working Group has repeatedly noted the need to strengthen coordination of various initiatives in
asset recovery. In this regard, the United Nations Office on Drugs and Crime (UNODC) and the World Bank
established in September 2007 the Stolen Asset Recovery (StAR) Initiative, which became fully operationalat the end of 2008. The goal of the StAR Initiative is to encourage and facilitate the systematic and timely
return of proceeds of corruption and to improve global performance in the return of stolen assets.
In its resolution 4/4, the Conference decided that the Working Group on Asset Recovery shall continue
its work to advise and assist it in the implementation of its mandate with respect to the return of theproceeds of corruption. Also in its resolution 4/4, the Conference requested the Working Group to prepare
the agenda for a multi-year workplan to be implemented until 2015.
At its sixth meeting in August 2012, the Working Group focused its attention, pending the adoption of
the workplan, on thematic discussions regarding article 54 (Mechanisms for recovery of property throughinternational cooperation in confiscation) and article 55 (International cooperation for purposes of confiscation).
The Working Group further considered and adopted a proposal on the structure of the multi-year
workplan until 2015, which, as far as its thematic orientation is concerned, includes the following (theworkplan for the years 2014 and 2015 was indicative and subject to deliberations during the fifth session of
the Conference of the States Parties in 2013):
2013
•
•

2014
•
•
2015
•

Discussion on article 56 — Special cooperation, and article 58 — Financial intelligence unit (FIU)
and other relevant articles.
Discussion on cooperation in freezing and seizure: article 54 — Mechanisms for recovery of property
through international cooperation in confiscation, and article 55 — International cooperation for
purposes of confiscation and other relevant articles.
Discussion on article 52 — Prevention and detection of transfers of proceeds of crime and otherrelevant articles.
Discussion on article 53 — Measures for direct recovery of property and other relevant articles.
Discussion on article 57 — Return and disposal of assets and other relevant articles.

E. Expert Meetings on International Cooperation under the UNCAC
In resolution 4/2, entitled “Convening of open-ended intergovernmental expert meetings to enhanceinternational cooperation”, adopted by the Conference of the States Parties to the UNCAC at its fourth84

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session, held in Marrakech, Morocco, from 24 to 28 October 2011, the Conference decided to convene openended intergovernmental expert meetings on international cooperation to advise and assist it with respect toextradition and mutual legal assistance.
In the same resolution, the Conference also decided that the expert meetings shall perform the following
functions: (a) assist it in developing cumulative knowledge in the area of international cooperation; (b)assist it in encouraging cooperation among relevant existing bilateral, regional and multilateral initiatives
and contribute to the implementation of the related provisions of the Convention under the guidance of
the Conference; (c) facilitate the exchange of experiences among States by identifying challenges anddisseminating information on good practices to be followed in order to strengthen capacities at the national
level; (d) build confidence and encourage cooperation between requesting and requested States by bringing
together relevant competent authorities, anti-corruption bodies and practitioners involved in mutual legal
assistance and extradition; and (e) assist the Conference in identifying the capacity-building needs of States.
The first open-ended intergovernmental expert meeting to enhance international cooperation under theUnited Nations Convention against Corruption (UNCAC) will take place in Vienna, from 22 to 23 October
2012. The experts may wish to focus their discussions on the findings and results on the implementation ofarticles 44 and 46 of the UNCAC by States Parties to the Convention, as emerged during the ongoing firstcycle of the Mechanism for the Review of Implementation of the Convention. Furthermore, discussions
will revolve around priorities and needs for technical assistance in the field of international cooperation incriminal matters.
The experts will be informed of the outcome and conclusions of the meeting of the Open-ended Working
Group of Government Experts on Extradition, Mutual Legal Assistance and International Cooperation for
Purposes of Confiscation of the Conference of the Parties to the United Nations Convention against Transnational
Organized Crime, which will have taken place during the sixth session of the Conference, to be held in Vienna
from 15 to 19 October 2012.

IV. Epilogue
Considerable work has been done over the last years to enhance international action against corruption.
A milestone in this endeavour is the United Nations Convention against Corruption not only becauseof its global effect and wide-ranging content, but also due to the mechanism and subsidiary bodies andprocesses already in place aimed at reviewing its implementation at the domestic level, as well as promoting
compliance of national laws and anti-corruption policies and practices with the international standards
enshrined in its provisions.
Much work, however, remains to be done to translate the text of the Convention into reality on the
ground and to achieve an effective global regime against corruption. A key factor for success in this regard
is to build on progress made and fully benefit from existing “complementarities”: first, the complementarityof, and inter-linkages among, the different chapters of the Convention as a manifestation of its multi-faceted
nature and the multi-disciplinary domestic policies needed for its effective implementation; second, thecomplementarity of the different components of the institutional framework which was established to help
render the content of the Convention fully applicable in the domestic legal and administrative order ofStates Parties; and, third, the complementary action and synergies of the various stakeholders active in thefight against corruption. Among them, UNODC has played — and continues to play — a leading role in theefforts of the international community to support Member States in the development of robust, efficient andsustainable anti-corruption policies and institutions.

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