113TH
INTERNATIONAL
TRAINING
COURSEVISITING
EXPERTS’
PAPERSVISITING EXPERTS’ PAPERS

INTERNATIONAL ANTI-CORRUPTION INITIATIVES
Donald K. Piragoff*

I. INTRODUCTION
Efforts have been ongoing within various
international fora to combat corruption
through negotiating international
instruments, exchanging information, andpromoting international co-operation andtechnical assistance in the field. The
necessity of States joining together tocombat corruption has also been promoted
at the highest political levels. This has
been the result of a recognition that
corruption weakens democratic
institutions and public administration,
undermines good governance, fairness andsocial justice, distorts the economy andcompetition, hinders economic and social
development and damages a society’s moral
fibre. Of growing concern is that corruption
is used as a tool by organised crime toachieve its criminal goals.
Governments and non-governmentalorganisations have become convinced thatthe public must become aware of thisproblem and participate in its prevention,and that governments must exert
coordinated action, both domestically andinternationally, to fight it effectively. In
result, in the last decade the issue of
corruption has taken priority in the work
programmes of many internationalorganisations, both inter-governmental
and non-governmental. This work has
included the negotiation of international
instruments and other legal measures,i m p l e m e n t i n g v a r i o u s r e g u l a t o r y,
* General Counsel, Criminal Law Policy Section,
Department of Justice, Canada.
The views expressed herein represent those of theauthor and do not necessarily represent the viewsof the Department of Justice.

preventive and educational measures andproviding technical assistance andcooperation.
While acknowledging that the fightagainst corruption requires multidisciplinary action, this paper will survey
only a number of initiatives undertaken by
a number of international and intergovernmental organisations, primarily
with respect to legal measures in thecriminal law area to fight corruption.
II. ORGANIZATION OF AMERICANSTATESIn 1994, at the Summit of the Americas,
Heads of State and of Governments in theAmericas endorsed a Plan of Action, whichcalled upon the Organization of American
States (OAS) to develop a hemisphericapproach to acts of corruption. Afterseveral preparatory meetings, theSpecialised Conference on the Draft InterAmerican Convention against Corruption
was held in Caracas, Venezuela on March
27, 28 and 29, 1996. The Convention was
concluded on March 29, 1996. Twenty-one
Member States (out of thirty-four Member
States) signed the Convention on that date,
and the Convention entered into force on
March 6, 1997.
This was the first international
convention to be negotiated that provides
for criminalizing the bribery of foreign
public officials. The OAS Convention has
two purposes:(1) to promote and strengthen withineach State Party mechanisms
necessary to prevent, detect, punish
and eradicate corruption; and327

RESOURCE MATERIAL SERIES No. 56(2) to promote, facilitate and regulate cooperation among States Parties toensure the effectiveness of measuresand actions to prevent, detect, punish
and eradicate corruption.1
The Convention describes a number ofacts of corruption which States Parties are
obliged to criminalize under their domestic
law, and further obligates them to consider
establishing various preventive measures,consider the establishment of otheroptional offences and provide international
co-operation in the investigation ofcorruption. The Convention is applicableto, and States Parties shall adopt thenecessary legislative or other measures toestablish as criminal offences, the following
acts of corruption:•

Solicitation or acceptance, directly or
indirectly, by a government official ora person who performs public functions,of any article of monetary value, orother benefit (such as a gift, favour,
promise or advantage for him or herself
or for another person or entity), in
exchange for any act or omission in theperformance of his or her public
functions;•

Offering or granting, directly or
indirectly, to a government official or aperson who performs public functions,
any such article of monetary value orother benefit as described above;•

Any act or omission in the discharge of
duties by a government official or aperson who performs public functions
for the purpose of illicitly obtaining
benefits for him/herself or for a third
person;1

Organization of American States, Inter-American
Convention Against Corruption (hereinafter“OAS”), Article II.

328•

Fraudulent use or concealment ofproperty from any of the acts referredto; and•

Participation as a principal, coprincipal, instigator, accomplice oraccessory after the fact, or in any otherm a n n e r, i n t h e c o m m i s s i o n o r
attempted commission of, or in any
association or conspiracy to commit,
any of the acts referred to.2

The Convention also contains a numberof optional obligations concerning
criminalisation, which are conditional andsubject to a State’s Constitution and thefundamental principles of its legal system.
The first of these involves transnational
bribery. Each State Party shall prohibit
and punish its nationals, persons having
their habitual residence in its territory, andbusinesses domiciled there, for offering or
granting, directly or indirectly, to agovernment official of another State, any
article of monetary value, or other benefit(such as a gift, favour, promise oradvantage) in connection with any
economic or commercial transaction in
exchange for any act or omission in theperformance of that official’s public
functions. The second optional offence
involves illicit enrichment. Each State
Party shall take the necessary measures
to establish under its laws as an offence “asignificant increase in the assets of agovernment official that he cannot
reasonably explain in relation to his lawful
earnings during the performance of his
functions”.3
Such offences shall be considered as anact of corruption, for the purposes of theConvention, among those States Parties
that have established transnational
bribery or illicit enrichment as an offence,2
3

OAS, Article VI and VII.
OAS, article IX.

113TH INTERNATIONAL TRAINING COURSE
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respectively. However, even State Parties
that have not established transnational
bribery or illicit enrichment as an offence
shall, insofar as their laws permit, provide
assistance and co-operation with respect tothose offences, as provided in theconvention.4
In order to foster the development andharmonization of their domestic legislationand the attainment of the purpose of theConvention, the States Parties are also
obliged to consider establishing as offences
under their laws the following acts ofcorruption:•

Improper use by a government official
or a person who performs public
functions, for his or her own benefit orthat of third party, of any classified orconfidential information which that
official or person has obtained becauseof, or in the performance of, his of her
functions;•Improper use by such an official or
person, for his or her own benefit orthat of a third party, of any kind of
property belonging to the State or to
any firm or institution in which theState has a proprietary interest, towhich that official or person has accessbecause of, or in performance of, his or
her function;•

Any act or omission by any person who,
personally or through a third party, or
acting as an intermediary, seeks toobtain a decision from a publicauthority whereby he or she illicitly
obtains for him or herself or for anotherperson any benefit or gain, whether or
not such act or omission harms State
property; and•Diversion by a government official, forpurposes unrelated to those for which
they were intended, for his or her own
benefit or that of a third party, of any
moveable or immovable property,
monies or securities belonging to theState, to an independent agency, or to
an individual, that such official hasreceived by virtue of his or her position
for the purposes of administration,custody or for other reasons.5
Such offences shall be considered as actsof corruption for the purpose of theConvention among those State Parties thathave established these offences underdomestic law. Any State Party that has
not established these offences shall,nevertheless, be obligated, insofar as its
laws permit, to provide assistance and cooperation with respect to these offences, as
provided in the Convention.6
Each State Party shall adopt suchmeasures as may be necessary to establish
its jurisdiction over the offences it hasestablished (in accordance with theConvention) when committed in its
territory, and may adopt jurisdiction where
the offence was committed by one of its
nationals or by a person who habituallyresides in its territory. It shall alsoestablish jurisdiction over an alleged
criminal who is present on its territory andit does not extradite such a person toanother country on the grounds of thenationality of the alleged criminal.7
With respect to extradition, each of theoffences established by the States Parties
in accordance with the Convention shall bedeemed to be included as an extraditableoffence in any extradition treaty between
the State Parties, and if no extradition
treaty exists between two State Parties,
5

OAS, Article XI para. 1.
OAS, Article, XI paras. 2 and 3.
7 OAS, Article V.
6

4

OAS, Article VIIIand IX.

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they may consider the Convention as thelegal basis for extradition. State Parties
that do not make extradition conditionalon the existence of a treaty shall recognise
Convention offences as extraditableoffences. If extradition is refused solely on
the basis of the nationality of the personsought, or because the Requested Statedeems that it has jurisdiction over theoffence, the Requested State shall submit
the case to its competent authorities for the
purpose of prosecution, unless otherwise
agreed with the Requesting State.8
States Parties shall also afford one
another the widest measure of mutual
assistance by processing requests either
through Central Authorities 9 or from
authorities that have the domestic power
to investigate or prosecute the acts ofcorruption described in the Convention.10
They shall also provide each other with thewidest measure of mutual technical cooperation on the most effective ways andmeans of preventing, detecting,investigating and punishing acts ofcorruption. This would include exchangesof experience by way of agreements andmeetings, with special attention to methods
and procedures of citizen participation infighting corruption.11
State Parties shall also provide eachother the broadest possible measure ofassistance in the identification, tracing,
freezing, seizure and forfeiture of property
or proceeds obtained, derived from or usedin the commission of Convention offences.
A State Party may, to the extent permitted
by its laws, transfer all or part of suchproperty or proceeds to another State Party
that assisted in the underlying
investigation or proceedings.12

Bank secrecy shall not be invoked by the
Requested State as a basis for refusal toprovide assistance sought by the
Requesting State. In reciprocity, theRequesting State is obligated not to use any
information received that is protected bybank secrecy for any purpose other thanthe proceeding for which that information
was requested, unless authorised by the
Requested State.13
For the purpose of the articles
concerning extradition, mutual assistancein general and assistance in respect ofmeasures regarding property and banksecrecy, the fact that the property obtainedor derived from an act of corruption was
intended for political purposes, or that it
is alleged that an act of corruption wascommitted for political motives or purposes,
shall not suffice in and of itself to qualify
the act as a political offence or as a common
offence related to a political offence.14
Subject to the constitutional principles
and the domestic laws of each State, andexisting treaties between the States
Parties, procedural co-operation in criminal
matters may be given with respect to an
act of corruption that was committed before
the entry into force of the Convention.
However, the principles of non-retroactivity
in criminal law and the application ofexisting statutes of limitation relating tocrimes committed prior to the date of entry
into force shall not be affected by theConvention.15 Likewise, nothing in theConvention prevents the State Parties fromproviding mutual co-operation within theframework of other bilateral or multilateralagreements or arrangements.16

12 OAS, Article XV.
8OAS, Article XIII.
9 OAS, Article XVIII.
10 OAS, Article XIV, para. 1.
11 OAS, Article XIV, para. 2.

330

13 OAS, Article XVI.
14 OAS, Article XVII.
15 OAS, Article XIX.
16 OAS, Article XX.

113TH INTERNATIONAL TRAINING COURSE
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Additionally, the Convention obligates
State Parties to consider the applicabilityof a number of preventive measures within
their own institutional systems to create,
maintain and strengthen:•Standards of conduct for the correct,
honourable, and proper fulfilment ofpublic functions, in order to prevent
conflicts of interest and ensure theproper conservation and use ofresources entrusted to government
officials in the performance of theirfunctions, including the establishmentof measures and systems requiring
government officials to report acts ofcorruption in the performance of public
functions;

report acts of corruption, including
protection of their identities, inaccordance with their Constitutions
and the basic principles of theirdomestic legal system;•

Oversight bodies with a view toimplementing modern mechanisms forpreventing, detecting, punishing anderadicating corrupt acts;•

Deterrents to the bribery of domestic
foreign government officials, such asmechanisms to ensure that companies
and associations maintain accurate andreasonably detailed books and records,
which reflect the acquisition anddisposition of assets, and havesufficient internal accounting controls
to detect corrupt acts;•

Mechanisms to enforce these standardsof conduct;•

Instruction to government personnel toensure proper understanding of their
responsibilities and the ethical rules
governing their activities;•

Mechanisms to encourage participation
by civil society and non-governmentalorganisations in an effort to prevent
corruption; and•Systems for disclosing the income,assets and liabilities of persons who
perform public functions in certain
posts as specified by law and, whereappropriate, for making suchdisclosures public;•

Study further preventive measuresthat take into account the relationshipbetween equitable compensation andprobity in public service.

•

Systems of government hiring andprocurement of goods/services thatassure the openness, equity andefficiency of such systems;•

Government revenue collection andcontrol systems that deter corruption;•

Laws that deny favourable tax
treatment for expenditures made in
violation of anti-corruption laws;•

Systems for protecting public servantsand private citizens who, in good faith,

On June 5, 1997, the OAS General
Assembly adopted a Program for InterAmerican Cooperation in the Fight against
Corruption. Among other things, thisprogram calls for a strategy to secure
prompt ratification of the OAS Convention.
The Second Summit of the Americas washeld from April 18 -19, 1998 in Santiago,
Chile. Corruption was a featured theme
under the Human Rights and Democracy
section of the Summit agenda. Amongother things, this section of the action plan,
approved by leaders in Santiago, calls upon
governments to adopt strategies to achieve
prompt ratification of the OAS Convention.

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RESOURCE MATERIAL SERIES No. 56
A Symposium on Enhancing Probity in
the Hemisphere was held in Santiago,
Chile, on November 4-6, 1998. Participants
included representatives of national
institutions and of international agencies
involved in the fight against corruption.
Participants explained the underlying legal
basis, sphere of competence, and functionsof those bodies, as well as exiting
mechanism of co-ordination with othernational institutions. Presentations werealso made by representatives ofinternational organisations on how
national organisations could improve theirfight against corruption and better coordinate their activities with nongovernmentnal institutions. The
Symposium urged all governments to ratify
the OAS Convention before the year 2000,
and produced a number of conclusions andrecommendations.
In 1996, following the negotiations of theInter-American Convention against
Corruption, the OAS General Assemblyc o m m i s s i o n e d t h e I n t e r- A m e r i c a n
Juridical Committee (IAJC) of theOrganization of American States to preparemodel legislation covering transnational
bribery and illicit enrichment (Articles VIII
and IX of the Convention, respectively),
which could be used by Member States asa guide to implementing those articles of
the Convention.17 The Committee, in thecourse of its work, concluded that thedifferences among the legal systems ofMembers States, in terms of criminal law,even among those with the same language,
juridical tradition and similar historicalbackground, were far deeper and morevaried than those in other branches of thelaw. Therefore, the Juridical Committee
drafted a minimum number of basic
articles (which it acknowledged would
probably not be adopted as they stand by
any state), together with a commentary, as
17 OAS, AG/RES. 1395 (XXVI-0/96).

332

a guide for legislators. These are containedin its report, dated January 29, 1999,
entitled “Model Legislation on Illicit
Enrichment and Transnational Bribery”. 18
The report was presented to the Permanent
Council of the OAS in the spring of 1999.
III. ORGANISATION FORECONOMIC CO-OPERATION AND
DEVELOPMENT
Corruption of public officials has beenviewed as a major problem affecting
international trade and investment.
Accordingly, the Organisation for Economic
Co-operation and Development (OECD),
which is a major economic policy forum forthe world’s most advanced industrialised
democracies, has focused attention on thisissue. The OECD has 29 members, which
include Canada, the United States, most
European countries, Japan and South
Korea.
In May of 1997, a Ministerial meetingat the OECD called for the negotiation of abinding convention to address the briberyof foreign public officials. Ministers urgedthat the convention be finalised by the endof 1997, and recommended that Member
countries should submit legislative
proposals to criminalise such bribery totheir national legislatures and seek theirenactment by the end of 1998. On June
21, 1997, leaders at the Summit of Seven
Industrialised Countries, at their meetingin Denver, Colorado, issued a statement inwhich the leaders endorsed this approachand timetable. Negotiations commenced
with earnest and the OECD Convention on
Combating Bribery of Foreign Public
Officials in International BusinessTransactions was concluded on November
21, 1997. On December 17, 1997, theConvention was signed by Member States
18 Model Legislation on Illicit Enrichment andTransnational Bribery, OEA/Ser.Q, CJI/doc. 21/99,
29 January 1999.

113TH INTERNATIONAL TRAINING COURSE
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Argentina, Brazil, Bulgaria, Chile andSlovak Republic. On May 17, 1998, in the
Final Communique of the G-8 Summit,
held in Birmingham, United Kingdom, theHeads of State and Government pledged
to make every effort to ratify the OECD
Convention by the end of 1998.
Five of the ten OECD countries with thelargest share of OECD exports wererequired to ratify the Convention in 1998
in order to trigger its entry into force.
Canada ratified the OECD Convention on
December 17, 1998, and by becoming thefifth country to ratify the Convention (outof the ten countries with the largest shareof OECD exports, and representing at least
sixty percent of the combined total exportsof those ten countries, which was athreshold condition for entry into force), theother four countries and Canada were able
to trigger the entry into force of theConvention sixty days after the deposit of
Canada’s instrument of ratification. Thus,
the Convention entered into force on
February 15, 1999.
The Convention obligates each Party totake such measures as may be necessary
to establish as a criminal offence under its
law the intentional offering, promising or
giving of any undue pecuniary or otheradvantage, whether directly or throughintermediaries, to a foreign public official,
for the benefit of that official or a third
party, in order that the official act or refrainfrom acting in relation to the performanceof official duties, for the purpose ofobtaining or retaining business or otherimproper advantage in the conduct ofinternational business.19 Likewise, acts ofcomplicity, including incitement, aiding
and abetting, or authorisation of an act ofbribery of a foreign official, shall also be
criminal offences. Attempt and conspiracy
shall also be criminalised to the same
extent as they are in relation to bribing apublic official of that Party.20
For the purposes of the Convention,“foreign public official” is defined asmeaning “any person holding a legislative,administrative or judicial office of a foreigncountry, whether appointed or elected; any
person exercising a public function for a
foreign country, including for a publicagency or public enterprise; and any official
or agent of a public internationalorganisation. The phrase “act or refrainfrom acting in relation to the performanceof official duties” includes “any use of the
public official’s position, whether or not
w i t h i n t h e o f f i c i a l ’s a u t h o r i s e dcompetence”.
These criminal offences “shall bepunishable by effective, proportionate anddissuasive criminal penalties”, which are“comparable to that applicable to thebribery of the Party’s own public officials”,
including deprivation of liberty sufficient
to enable effective mutual legal assistanceand extradition. 21 The bribe and theproceeds of the bribery of a foreign public
official, or property of a corresponding
value to such proceeds, are to be subject toseizure and confiscation or to theimposition of monetary sanctions ofcomparable effect.22 Where a Party has
made bribery of its own public official a
predicate offence for the purpose of theapplication of its money laundering
legislation, that Party shall also apply thesame terms for the bribery of a foreign
public official, without regard to the place
where the bribery occurred.23
19 Organization

for Economic Cooperation andDevelopment, Convention on Combatting Bribery ofForeign Public Officials in International BusinessTransactions (hereinafter “OECD”), Article 1, para. 1.
20 OECD, Article 1, para. 2.
21 OECD, Article 3, para. 1.
22 OECD, Article 3, para. 3.
23 OECD, Article 7.

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Each Party shall also take suchmeasures as may be necessary, in
accordance with its legal principles, toestablish the liability of legal persons forthe bribery of a foreign public official.24 In
the event that criminal responsibility is notapplicable to legal persons under the legal
system of a Party, that Party “shall ensurethat legal persons shall be subject toeffective, proportionate and dissuasive noncriminal sanctions, including monetary
sanctions, for bribery of foreign public
officials.”25
Regarding jurisdiction, each Party is
obligated to establish its jurisdiction overthe bribery of a foreign public official when
the offence is committed in whole or in partin its territory. 26 Additionally, where a
Party has jurisdiction to prosecute its
nationals for offences committed abroad,it shall take such measure as may benecessary to establish its jurisdiction in
respect of the bribery of a foreign public
official by one of its nationals, according to
the same principles. Each Party shall also
“review whether its current basis forjurisdiction is effective in the fight against
the bribery of foreign public officials and,
if it is not, shall take remedial steps.”27
The investigation and prosecution
offences regarding the bribery of a foreign
public official shall be subject to theapplicable rules and principles of eachParty, but they “shall not be influenced byconsiderations of national economic
interest, the potential effect upon relations
with another State or the identity of thenatural or legal persons involved.”28 Any
statute of limitations applicable to theoffence of bribery of a foreign official shall
24 OECD, Article 2.

provide an adequate period of time for theinvestigation and prosecution of thisoffence.29
The Convention also provides
obligations regarding accounting practices
and auditing standards. Within theframework of its laws and regulations
regarding the maintenance of books andrecords, financial statement disclosures,
and accounting and auditing standards,
each Party shall take such measures as arenecessary “to prohibit the establishment ofoff-the-books accounts, the making of offthe-books or inadequately identified
transactions, the recording of non-existentexpenditures, the entry of liabilities withincorrect identification of their object, as
well as the use of false documents, bycompanies subject to those laws andregulations, for the purpose of bribing
foreign public officials or of hiding suchbribery.”30 Effective, proportionate anddissuasive civil, administrative or criminal
penalties shall be provided for suchomissions and falsifications in respect of
the books, records, accounts and financial
statements of such companies.31
With respect to international cooperation, each Party shall, “to the fullest
extent possible under its laws and relevant
treaties and arrangements, provide promptand effective legal assistance to anotherParty for the purpose of criminal
investigations and proceedings brought bya Party concerning offences within thescope of this Convention and for noncriminal proceedings within the scope of
this Convention brought by a Party against
a legal person.” Importantly, a Party “shallnot decline to render mutual legal
assistance for criminal matters within thescope of this Convention on the ground of

25 OECD, Article 3, para. 2.
26 OECD, Article 4, para. 1.

29 OECD, Article 6.

27 OECD, Article 4, para. 4.

30 OECD, Article 8, para. 1.

28 OECD, Article 5.

31 OECD, Article 8, para. 2.

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113TH INTERNATIONAL TRAINING COURSE
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bank secrecy.”32 Bribery of a foreign public
official shall also be deemed to be included
as an extraditable offence under the lawsof the parties and any extradition treaties
between them; and, if no treaties exist
between two Parties, they may consider theConvention as the legal basis for
extradition. Each Party shall also assurethat it can either extradite its nationals orthat it can prosecute its nationals for theoffence of bribery of a foreign public official.
If a Party declines a request solely on the
ground of nationality, it shall submit thecase to its competent authorities for the
purpose of prosecution. 33 Where dual
criminality is a requirement for mutual
legal assistance or for extradition, it shallbe deemed to exist if the offence for which
the assistance or extradition is sought iswithin the scope of the Convention.34
Of long term significance is the fact that
the Convention provides for a mechanism
for monitoring and follow-up. Article 12
obligates the Parties to “co-operate incarrying out a programme of systematic
follow-up to monitor and promote the full
implementation of this Convention.”
Unless otherwise decided by consensus of
the Parties, this programme shall be
carried out in the framework of the OECD
Working Group on Bribery in Intentional
Business Transactions. The OECD has
already embarked on a programme ofevaluation and assessment of Parties’
efforts to implement the convention, andeach Party is subject to a review andassessment by two other Parties and theresults are subject to review by the Working
Group.
IV. COUNCIL OF EUROPE
In September 1994, the Committee of
Ministers of the Council of Europe,
32 OECD, Article 9.
33 OECD, Article 10.
34 OECD, Article 9, para.2, and Article 10, para. 4.

following a proposal of the 19th Meeting of
the European Ministers of Justice (Malta,
June 1994), established a MultidisciplinaryGroup on Corruption (GMC) to examine
what measures might be suitable toconstitute a programme of action against
corruption, to make recommendations, andto examine the possibility of drafting model
laws or codes, including an international
convention, and of organising or promoting
research project, training and exchangesof experiences.
In November 1996, a Programme of
Action against Corruption, developed by
the Multidisciplinary Group on Corruption,
was adopted by the Committee of Ministersof the Council of Europe. The Programmeof Action, examined the nature and reasonsfor corruption, and set out a work
programme that included examining andmaking recommendations in a number ofa r e a s , i n c l u d i n g c r i m i n a l l a w,
administrative law, fiscal aspects, civil law,
institutions and categories of persons withspecial roles and responsibilities as regards
corruption, prevention, investigation andsanctioning of corruption, international cooperation and a number of areas related tofinancing of political parties, role of lobbyist
organisations, role of the media, andresearch, training and exchange ofpractical experiences.35 The Committee of
Ministers mandated the MultidisciplinaryGroup on Corruption (GMC) to developinternational instruments to give effect to
the Programme of Action and to implement
the Programme of Action before December
31, 2000.
At the 21st Conference of European
Ministers of Justice, held in Prague, Czech
Republic, in June 1997, Ministers
recommended accelerating the
35 Multidisciplinary Group on Corruption (GMC),

Programme of Action Against Corruption, GMC (96)
95.

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RESOURCE MATERIAL SERIES No. 56
implementation of the Programme of
Action against Corruption, andintensifying efforts with a view to the early
adoption of, among other things, a criminal
law convention that would provide for theco-ordinated incrimination of corruption
offences among states, enhanced cooperation for the prosecution of suchoffences and an effective follow-up
mechanism open to both Member States
and Non-member States.
At the Second Summit of Heads of Stateand Government of the Member States of
the Council of Europe, held in Strasbourgon October 10 to 11, 1997, an Action Plan
was adopted which included an instruction
to the Committee of Ministers to adopt
guiding principles against corruption andto secure the rapid completion ofinternational legal instruments pursuant
to the Programme of Action against
Corruption.
On November 6, 1997, at its 101st
session, the Committee of Ministers of theCouncil of Europe adopted the 20 Guiding
Principles for the Fight against Corruption.
These principles set out a number of goals
that should be achieved to fight corruption,
and addressed a number of areas such as
public awareness, co-ordination at thenational and international level, adequate
resources for and independence of thosefighting corruption from undue andimproper influences, seizure anddeprivation of proceeds of corruption,
corporate liability, transparency of public
administration and procurement
procedures, appropriate auditing
procedures, systems of public liability andaccountability, codes of conduct and rules
for financing of political parties andelection campaigns, and effective remedies
36 Council of Europe, Committee of Ministers,

Resolution (97) 24 on the Twenty Guiding Principles
for the Fight against Corruption.

336

and sanctions against corruption36 The
Committee of Ministers also instructed the
GMC to rapidly complete the elaborationof an instrument to establish a mechanism
to monitor the observance of the Guiding
Principles and the elaboration of theinternational legal instruments to be
adopted.
On May 5, 1998, the Committee of
Ministers adopted Resolution (98) 7
authorising the establishment of the“Group of States against Corruption”(GRECO) in the form of a partial andenlarged agreement which aims at
improving the capacity of states to fightcorruption by following up compliance with
their undertakings in the fight against
corruption. GRECO will monitor
implementation of the Convention and theapplication of the 20 Guiding Principles,
as well as other conventions and legal
instruments developed by the Council ofEurope in the area of corruption. The
Committee of Ministers invited Member
States and Non-member States having
participated in the elaboration of theAgreement to join the GRECO. GRECO
will come into force when 14 States haveindicated their desire to join it, which
occurred in early 1999. GRECO started
operating in May 1999.
On November 4, 1998, the Committeeof Ministers adopted the Criminal Law
Convention and decided to open it for
signature on January 27, 1999. On
January 27, 1999, 21 European states
signed the Criminal Law Convention, andas of September 15, 1999, 30 states havenow signed. It will come into force when
ratified by 14 States. The Convention is
open to the accession of Non-member
States. The Criminal Law Convention on
Corruption seeks to achieve co-ordinatedcriminalisation of a wide range of corrupt
practice by harmonised national legislationand improved international co-operation.

113TH INTERNATIONAL TRAINING COURSE
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It complements existing legal instruments
and covers the following forms of corruption
and corrupt behaviour:•

Active and passive bribery of domestic
and foreign officials;37•

Active and passive bribery of nationaland foreign parliamentarians, which
exercise legislative or administrative
p o w e r s , 38 a n d m e m b e r s o fparliamentary assemblies ofinternational or supranationalorganisations of which a Party is amember;39•

Active and passive bribery in theprivate sector (i.e, active or passive
bribery by “persons who direct or workfor, in any capacity, private sector
entities”) ;40•

Active and passive bribery ofinternational civil servants;41•

Active and passive bribery of domestic,
foreign and international judges andofficials of international courts;42•

Trading in influence;43•

Money-laundering of proceeds from37 Council of Europe, Criminal Law Convention on

Corruption, (hereinafter “COE”), Articles 2, 3 and 5.
38 COE, Articles 4 and 6.
39 COE, Article 10.
40 COE, Articles 7 and 8.
41 COE, Article9 (i.e., “any official or other contracted

employee, with the meaning of the staff regulations,of any public international or supranationalorganisation or body of which the Party is amember, and any person, whether seconded or not,carrying out functions corresponding to those
performed by such officials or agents”).
42 COE, Article 11.
43 COE, Article 12.
44 COE, Article 13.

corruption offences;44•

Accounting offences (invoices,
accounting documents, etc) connectedwith corruption offences.45“Active bribery” is defined to mean theintentional “promising offering or giving by
any person, directly or indirectly, of any
undue advantage “to any public official, forthe benefit of that official or for anyone else,in order that the public official refrain fromacting in the exercise of his or her
functions.46 “Passive bribery” is defined tomean the intentional request or receipt by
any public official, directly or indirectly, of
any undue advantage, for the benefit ofthat public official or anyone else, or theacceptance of an offer or a promise of suchan advantage, in order that the public
official act or refrain from acting in theexercise of his or her functions.47“ Tr a d i n g i n i n f l u e n c e ” m e a n s
intentionally “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 decisionmaking” of any public official, member of ap u b l i c a s s e m b l y, m e m b e r o f a n
international organisation, parliamentaryassembly or court within the scope of theConvention, in consideration thereof. It isirrelevant whether the undue advantage
is for himself or herself or for anyone else.
The term “trading in influence” also applies
to the intentional “request, receipt or theacceptance of the offer or the promise ofsuch an advantage, in consideration of that
influence, whether or not the influence isexerted or whether or not the supposed
influence leads to the intended result.”48
45 COE, Article 14.
46 COE, Article 2.
47 COE, Article 3.
48 COE, Article 12.

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RESOURCE MATERIAL SERIES No. 56“Accounting offences” refers to thefollowing acts or omissions, whencommitted intentionally, in order tocommit, conceal, or disguise a corruption
offence within the scope of the Convention:(a) creating or using an invoice or any
other accounting document or record
containing false or incomplete
information; or(b) unlawfully omitting to make a recordof a payment.49
Under the Convention, Parties are
obligated to establish jurisdiction over theConvention offences where:(1) the offence is committed on its
territory;(2) the offender is one of its nationals,
one of its public officials, or a memberof one of its domestic assemblies; or(3) the offence involves one of its public
officials or members of its domestic
public assemblies, or any personreferred to in any of the articles
establishing corruption offences who
is one of its nationals.50
The third basis of jurisdiction is intended
to include the exercise of jurisdiction where
the person who is bribed is a national of
the Party.
Parties are also obligated to ensure that
corporate liability exists in respect of thecriminal offences of active bribery, trading
in influence and money laundering where
the offence is committed for the benefit of
the legal person by any natural person,
acting either individually or as part of anorgan of the legal person, who has a leading
position within the legal person. This
leading position can be based on a powerof representation of an authority to takedecisions on behalf of, or an authority to
exercise control within, the legal person.
Additionally, a Party shall ensure that alegal person can be held liable where thelack off supervision or control by thenatural person, who has a leading position,
has made possible the commission of thecriminal offence for the benefit of the legal
person. Any liability for the legal person
does not exclude any criminal liability
against the natural person.51
Each Party is obligated to provide thatthe criminal offences established haveeffective, proportionate and dissuasive
sanctions and measures, including, in thecase of natural persons, penalties involving
deprivation of liberty and in the case oflegal persons, non-criminal sanctions andmonetary sanctions. Likewise, Parties are
obligated to confiscate or otherwise derive
the instrumentality’s and proceeds ofConvention criminal offences or property,
the value of which corresponds to suchproceeds,52 and to adopt such legislative orother measures as may be necessary,
including those permitting the use of
special investigative techniques, tofacilitate the gathering of evidence and toi d e n t i f y, t r a c e , f r e e z e a n d s e i z e
instrumentalists and proceeds.53 These
measures include the authority to orderthat bank, financial or commercial records
are made available or seized and that banksecrecy not be an obstacle to any of themeasures provided.54
The Convention also contains provisions
to ensure that persons or entities
specialised in the fight against corruption
have the necessary independence to carryout their functions free from undue
pressure and are adequately trained and
51 COE, Article 18.
52 COE, Article 19.

49 COE, Article 14.

53 COE, Article 23.

50 COE, Article 17.

54 Ibid.

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VISITING EXPERTS’ PAPERS
financially resourced,55 public authorities
and public officials co-operate withinvestigating and prosecuting authorities,56
and effective and appropriate protection isprovided for those who report Convention
criminal offences or who are witnesses.57
With respect to international cooperation, Parties are obligated to cooperate to the widest extent possible for the
purposes of investigation and proceedings
concerning Convention offences, and may
use the Convention as the basis for cooperation where no bilateral or otherinternational instrument or arrangement
exists.58 Mutual legal assistance may berefused if the requested Party believes thatcompliance with the request would
undermine its fundamental interests,
national sovereignty, national security or
public order, but shall not invoke banksecrecy as a ground of refusal.59 Likewise,
the Convention can be used as the basis
for extradition with respect to Convention
offences, and Parties are obligated torecognise Convention offences as
extraditable offences. If extradition isrefused solely on the basis of the nationalityof the person sought, or because therequested Party considers that it has
jurisdiction over the offence, the requested
Party shall submit the case to its competentauthorities for the purpose of prosecution60.
The Convention also contains provisions
concerning the provision of spontaneous
information by a Party to another Party
when it considers that disclosure might
assist an investigation61, as well as the use
of Central Authorities 62 , and directcommunications between judicial
authorities in the event of urgency.63
V. UNITED NATIONSIn 1990, the Eighth United Nations
Congress on the Prevention of Crime andthe Treatment of Offenders adopted aresolution on Corruption in Government 64
which, in addition to inviting and urging
Member States to review the adequacy of
their laws and procedures to respond tocorruption, requested that the United
Nations organisation provide technicalcooperation and assistance to develop anticorruption programmes, law reform,
training, etc. The organisation was also
requested to develop a code of conduct for
public officials and to develop a manual on
practical measures against corruption.
In 1993, the United Nations publisheda manual addressing practical measuresagainst corruption.65 The manual contains
a number of chapters addressing issues
such as penal laws, administrative andregulatory measures, procedures for thedetection, investigation and conviction ofcorrupt officials, forfeiture of property andproceeds, economic sanctions against
enterprises and training, and exchange ofinternational experience.
At the Ninth United Nations Congresson the Prevention of Crime and theTreatment of Offenders, held in Cairo,
Egypt, in 1995, a special session was
devoted to the subject of corruption. A
Background paper prepared by the

55 COE, Article 20.

63 COE, Article 30.

56 COE, Article 21.

64 United Nations, Economic and Social Council,

57 COE, Article 22.

Resolution 1990/23 of 24 May 1990.

58 COE, Article 25.

65 United Nations, “Crime Prevention and Criminal

59 COE, Article 26.

Justice in the Context of Development: Realities
and Perspectives of International Cooperation,
Practical Measures against Corruption”, 41 & 42
International Review of Criminal Policy (1993).

60 COE, Article 27.
61 COE, Article 28.
62 COE, Article 29.

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RESOURCE MATERIAL SERIES No. 56
Secretariat on international action against
corruption was distributed.66 The paper
presents various characteristics ofcorruption, as well as its adverse effects ondevelopment. Various measures against
corruption and recent international
initiatives are discussed, as well as the roleof international organisations in the fightagainst corruption.
In the autumn of 1996, the United
Nations General Assembly adopted two
resolutions concerning corruption. The
first, Action Against Corruption, to which
was annexed an International Code of
Conduct for Public Officials. 67 The
resolution on the Code of Conduct had been
prepared by the UN Commission on Crime
Prevention and Criminal Justice. The
Code addresses areas such as loyalty to the
public interest, effective and efficientadministration of public resources, fair andimpartial performance of functions, conflictof interest and declaration of possible
conflicts, improper use of public property,
disclosure of assets, acceptance of gifts or
favours, confidentiality of information andpolitical activity. The resolution called
upon States to implement the resolution
and Code of Conduct.
The second resolution, adopted theUnited Nations Declaration against
Corruption and Bribery in International
C o m m e r c i a l Tr a n s a c t i o n s . 6 8 T h e
Declaration called upon States to commit
themselves inter alia to take effective andconcrete action to combat all forms ofcorruption, bribery and related illicit
practices in international commercial

transactions and, in particular, tocriminalise the bribery of foreign public
officials in connection with an internationalcommercial transaction, deny the tax
deductibility of bribes, develop accounting
standards and practices that improve thetransparency of international commercial
transactions, develop business codes,
standards or best practices, examine thecriminalisation of illicit enrichment, afford
the greatest possible cooperation andassistance to other States in the criminal
investigation and prosecution of corruption
and bribery, and ensure that bank secrecy
does not impede or hinder criminal
investigations.
Pursuant to General Assembly
resolution 51/59 and ECOSOC resolution
1995/14, a report was prepared in 1997 by
the Secretary General that reviews various
forms of corruption and several anticorruption initiatives taken byinternational bodies and describes possible
elements and means to implement theabove-mentioned General Assembly
resolutions and to promote theInternational Code of Conduct.69 Whileobserving that the fight against organised
crime and corruption is predominantly
presented as a challenge to the law
enforcement community, it recognises thatcrime prevention concepts and techniques
can be employed in the fight against
corruptions and organised crime,
particularly in limiting the opportunities
for corruption.
At the sixth session of the UN
Commission on Crime Prevention andCriminal Justice (1997), states were called

66 United Nations, Ninth United Nations Congresson the Prevention of Crime and the Treatment of
Offenders, A/Conf.169/14, 13 April 1995.
67 United Nations General Assembly, 51st Session,
Resolution 51/59.
68 United Nations General Assembly, 51st Session,
Resolution 51/191.

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69 United Nations, Economic and Social Council,“Promotion and Maintenance of the Rule of Law
and Good Governance; Action against Corruption,
Action against Corruption and Bribery, Report of
the Secretary-General, E/CN.15/1997/3, 5 March
1997.

113TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
upon to commit themselves to take further
action further to General Assembly
resolution 51/191. It was also agreed that“combating corruption” would be a theme
to be a addressed at a workshop to be heldat the Tenth United Nations Congress on
the Prevention of Crime and the Treatmentof Offenders, to be held in Vienna, Austria,
in April 2000. At the seventh session of
the Commission (1998), a resolution was
adopted to request the updating of the UN
Manual on Practical Measures on
Corruption and for an experts’ group to
develop an international strategy against
corruption. A meeting of experts was heldin Paris in April 1999, and its
recommendations were considered andwelcomed by the Commission at its eighth
session in May 1999.
Recently, the newly structured Centre
for International Crime Prevention in
Vienna, Austria, has prepared a Global
Programme Against Corruption which is an
outline for action against corruption interms of research and technical cooperation
and assistance. The research component
is to undertake a global study on
corruption, including identification of types
and the effectiveness of anti-corruption
measures, particularly in the areas of
public administration, business andpolitical-financial corruption. In addition,
an international database is to be created
which would contain information on bestpractices, relevant national legislation andregulatory measures of different countries
and international instruments against
corruption. The technical cooperation
component, which is to be multidisciplinary
in nature, is designed to strengthen or
assist Member States to build andstrengthen their institutional capacity inpreventing, detecting and fighting
corruption. Governments in which
technical cooperation activities are to be
implemented will be invited to sign a
National Anti-Corruption Programme

Agreement, which will express theirpolitical will to be bound to a technicalassistance component to deal with thecommercial aspects of corruption andbribery in international commercial
transactions.
Currently, members of the United
Nations are negotiating a Convention on
Transnational Organised Crime. One ofthe proposals under consideration is toinclude a provision on corruption thatwould obligate states to criminalise acts ofcorruption committed by organised groups.
The proposal is similar to that containedin the Council of Europe convention andwould criminalise the offering or giving toa public official of an undue advantage toact or refrain from carrying out his or her
functions or the receipt of such anadvantage by the public official. Of some
controversy is the proposal to extend theobligation to criminalise such acts toinclude also foreign public officials,
international civil servants and judges, andofficials of international criminal courts.
Also being considered by the committee
negotiating the Convention is the question
whether much broader provisions against
corruption, which address aspects otherthan criminalisation, should be the subjectof a future protocol to the Convention or
be the subject of a separate international
Convention. The Committee is to reportto the Commission on Crime Prevention
and Criminal Justice on its
recommendations.
VI. GLOBAL FORUM ON FIGHTINGCORRUPTION
The first Global Forum on Fighting
Corruption: Safeguarding Integrity Among
Justice and Security Officials was held in
Washington, DC, from February 24 to 26,
1999, hosted by US Vice President, Al Gore.
High-level representatives from 89
governments and others shared

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RESOURCE MATERIAL SERIES No. 56
experiences and examined the causes ofcorruption and the practices that are
effective to prevent and fight it,
particularly as regards corruption of justiceand security officials. The costs ofcorruption on democracy, economic andsocial development and the rule of law werenoted and participants called on
governments to co-operate in appropriate
regional and global bodies to rededicate
themselves to adopt effective anticorruption principles and practices and toassist each other through mutual
evaluation.
While there were calls for a global
convention to be negotiated, there was noconsensus whether such a convention
should be negotiated immediately or
following the negotiation andimplementation of regional anti-corruption
conventions. Nevertheless, participants
were committed to act and a second Global
Forum on Fighting Corruption is to be heldin the Netherlands in 2000. Immediately
before the Global Forum, Ministers fromeleven African countries meeting inWashington, DC, drafted a set of 25
principles on anti-corruption, good
governance and accountability. There wasa sense at the forum that these principles
could be adopted by other African countries
and serve as the basis for an African
Convention Against Corruption, which
could be negotiated within the
Organization of African Unity.
VII. CONCLUSION
The political priority given to the issueof corruption has resulted in thenegotiation of a number of regional andother international Conventions against
various forms of corruption. This paper has
attempted to survey a number of these
initiatives, setting out their major
elements. While most of these Conventions
have been of a regional nature or of inter-342

governmental organizations of limited
membership, there is a clear recognition
that global solutions, including a global
convention of some form, is required. It is
anticipated that regional and other limited
international Conventions will continue tobe negotiated in the near future, but withthe realisation and goal that a truly global
convention is required and that its
negotiation is imminent.