UN Guide for Anti-Corruption Policies - United Nations Office on ...

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Once bribery has occurred, it can lead to other <strong>for</strong>ms of corruption. By accepting a bribe, an official becomes much more susceptible to blackmail. Most international and national legal definitions seek to criminalize bribery. Some definitions seek to limit criminalization to situations where the recipient is a public official or where the public interest is affected, leaving other cases of bribery to be resolved by non-criminal or non-judicial means. In jurisdictions where criminal bribery necessarily involves a public official, the offence is often defined broadly to extend to private individuals offered bribes to influence their conduct in a public function, such as exercising electoral functions or carrying out jury duty. Public sector bribery can target any individual who has the power to make a decision or take an action affecting others and is willing to resort to bribery to influence the outcome. Politicians, regulators, law en<strong>for</strong>cement officials, judges, prosecutors and inspectors are all potential targets <strong>for</strong> public sector bribery. Specific types of bribery include: • Influence-peddling or trading in influence, 29 in which public officials or political or Government insiders peddle privileges acquired exclusively through their public status that are usually unavailable to outsiders, <strong>for</strong> example access to or influence on Government decision-making. Influence peddling is distinct from legitimate political advocacy or lobbying. • Offering or receiving improper gifts, gratuities, favours or commissions. In some countries, public officials commonly accept tips or gratuities in exchange <strong>for</strong> their services. As links always develop between payments and results, such payments become difficult to distinguish from bribery or extortion. • Bribery to avoid liability <strong>for</strong> taxes or other costs. Officials of revenue collecting agencies, such as tax authorities or customs, are susceptible to bribery. They may be asked to reduce or eliminate amounts of tax or other revenues due; to conceal or overlook evidence of wrongdoing, including tax infractions or other crimes. They may be called upon to ignore illegal imports or exports or to conceal, ignore or facilitate illicit transactions <strong>for</strong> purposes such as money laundering. • Bribery in support of fraud. Payroll officials may be bribed to participate in abuses such as listing and paying non-existent employees ("ghost workers"). • Bribery to avoid criminal liability. Law en<strong>for</strong>cement officers, prosecutors, judges or other officials may be bribed to ensure that criminal activities are not investigated or prosecuted or, if they are prosecuted, to ensure a favourable outcome. 29 Trading in influence as defined in the Council of Europe Criminal Convention on <strong>Corruption</strong> and now being incorporated in the <strong>UN</strong> Convention against <strong>Corruption</strong> is especially important. According to Michael Defeo, the author of the Practical Measures in the fight against <strong>Corruption</strong>, this is a very useful mechanism, as it overcomes important evidentiary difficulties, and together with unlawful enrichment crimes is one of the few real substantive criminal law advance c developments in the field 30
• Bribery in support of unfair competition <strong>for</strong> benefits or resources. Public or private sector employees responsible <strong>for</strong> making contracts <strong>for</strong> goods or services may be bribed to ensure that contracts are made with the party that is paying the bribe and on favourable terms. In some cases, where the bribe is paid out of the contract proceeds themselves, this may also be described as a "kickback" or secret commission. • Private sector bribery. Corrupt banking and finance officials are bribed to approve loans that do not meet basic security criteria and cannot later be collected, causing widespread economic damage to individuals, institutions and economies. • Bribery to obtain confidential or "inside" in<strong>for</strong>mation. Employees in the public and private sectors are often bribed to disclose valuable confidential in<strong>for</strong>mation, undermining national security and disclosing industrial secrets. Inside in<strong>for</strong>mation is used to trade unfairly in stocks or securities, in trade secrets and other commercially valuable in<strong>for</strong>mation. 4. Embezzlement, theft and fraud. In the context of corruption, embezzlement, theft and fraud all involve the taking or conversion of money, property or valuable items by an individual who is not entitled to them but, by virtue of his or her position or employment, has access to them (5). In the case of embezzlement and theft, the property is taken by someone to whom it was entrusted. Fraud, however, consists of the use of false or misleading in<strong>for</strong>mation to induce the owner of the property to relinquish it voluntarily. For example, an official who takes and sells part of a relief donation or a shipment of food or medical supplies would be committing theft or embezzlement; an official who induces an aid agency to oversupply aid by misrepresenting the number of people in need of it is committing fraud. As with bribery and other <strong>for</strong>ms of corruption, many domestic and international legal definitions are intended to <strong>for</strong>m the basis of criminal offences. Thus, they include only those situations involving a public official or where the public interest is crucially affected. "Theft", per se, goes far beyond the scope of corruption, including the taking of any property by a person with no right to it. Using the same example of the relief donation, an ordinary bystander who steals aid packages from a truck is committing theft but not corruption. That is why the term “embezzlement”, which is essentially the theft of property by someone to whom it was entrusted, is commonly used in corruption cases. In some legal definitions "theft" is limited to the taking of tangible items, such as property or cash, but non-legal definitions tend to include the taking of anything of value, including intangibles such as valuable in<strong>for</strong>mation. In the Toolkit, the broader meaning of "theft" is intended. Examples of corrupt theft, fraud and embezzlement abound. Virtually anyone responsible <strong>for</strong> storing or handling cash, valuables or other tangible property is in a position to steal it or to assist others in stealing it, particularly if auditing or monitoring safeguards are inadequate or non-existent. 31
Page 2 and 3: Disclaimer The views expressed here
Page 4 and 5: FOREWORD United <s
Page 6 and 7: UNITED NATIONS CON
Page 8 and 9: Chapter IV International cooperatio
Page 10 and 11: TABLE OF CONTENTS FOREWORD ACKNOWLE
Page 12 and 13: VIII. DEALING WITH THE ILLICIT TRAN
Page 14 and 15: I INTRODUCTION A. Background The <s
Page 16 and 17: of the Commission for</stro
Page 18 and 19: major policy agendas of the countri
Page 20 and 21: Where the primary focus of the <str
Page 22 and 23: Definitions also vary depending on
Page 24 and 25: In both cases, corruption may exist
Page 26 and 27: Commercial dealings are no longer c
Page 28 and 29: Corruption is both
Page 32 and 33: Employees or officials with access
Page 34 and 35: 9. Improper political contributions
Page 36 and 37: • The rule of law. As many of the
Page 38 and 39: combat corruption will lack credibi
Page 40 and 41: which has resulted in excellent nat
Page 42 and 43: offset real or perceived advantages
Page 44 and 45: Evidence that corruption is being r
Page 46 and 47: also the development of an independ
Page 48 and 49: as statutes creating anti-corruptio
Page 50 and 51: elements will involve the selection
Page 52 and 53: The major disadvantages 37 include
Page 54 and 55: These may include: • Constitution
Page 56 and 57: V. PREVENTION A. Introduction The p
Page 58 and 59: The lack of adequate financial and
Page 60 and 61: 4. Employee culture and motivation,
Page 62 and 63: are common to most if not all burea
Page 64 and 65: Proactive measures against conflict
Page 66 and 67: 10. Disclosure of Assets Requiring
Page 68 and 69: VI. AWARENESS RAISING AND PUBLIC PA
Page 70 and 71: formats, and the a
Page 72 and 73: 2. The messages to be delivered Dep
Page 74 and 75: a. Political and legislative measur
Page 76 and 77: • The general identification, edu
Page 78 and 79: VII. DOMESTIC LEGAL ELEMENTS: THE U
Page 80 and 81:
B. Criminal Law 1. Criminal offence
Page 82 and 83:
offences must be created and define
Page 84 and 85:
and whether the conclusion which is
Page 86 and 87:
elatively minor infractions to the
Page 88 and 89:
3. Confiscation of the proceeds of
Page 90 and 91:
4. Money laundering laws Money laun
Page 92 and 93:
eview information
Page 94 and 95:
VIII. DEALING WITH THE ILLICIT TRAN
Page 96 and 97:
A fourth and related issue which mu
Page 98 and 99:
Methodologies can also vary widely,
Page 100 and 101:
accordance with their advice, and t
Page 102:
of Transparency International, are
Page 105 and 106:
GUIDING PRINCIPLES FOR FIGHTING COR
Page 107 and 108:
Effective practices include: • Sy
Page 109 and 110:
• Promoting effor</strong
Page 111 and 112:
involvement of society at large. Wo
Page 113 and 114:
Corruption. 21. Pa
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C. Plan of action 1. General Princi
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B. INTERNATIONAL LEGAL INSTRUMENTS
Page 119 and 120:
liberty that can lead to extraditio
Page 121 and 122:
fight corruption and in particular
Page 123 and 124:
10. Convention on the fight against
Page 125 and 126:
Furthermore, the Convention address
Page 127 and 128:
1997 from which it derives inspirat
Page 129 and 130:
presently the case. These provision
Page 131 and 132:
Recommends that the governments of
Page 133 and 134:
Article 12 Reporting 1. The public
Page 135 and 136:
Article 19 Reaction to improper off
Page 137 and 138:
Article 28 Observance of this Code
Page 139 and 140:
Code of Judicial Conduct I. Proprie
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1.23 A judge may receive compensati
Page 143 and 144:
4.9 Disqualification of a judge is
Page 145 and 146:
7.4 Ordinarily, except in serious c
Page 147:
Langseth, P. 2000. Prevention: An E
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