View/save PDF version of this document - La Strada International

76 Travaux préparatoires: United Nations Convention against Transnational Organized Crime4. Amendments to the text of article 4 ter based on the summary of the Chairmanof the Ad Hoc Committee of the discussions during the fourth session of the Ad HocCommittee (A/AC.254/L.40) are reflected in the following revised draft of the convention(A/AC.254/4/Rev.4).Rolling text (A/AC.254/4/Rev.4)“Article 4 ter“Measures against corruption“1. This Convention shall apply to the offences of corruption [described in thisarticle], when involving an organized criminal group. 2“2. Each State Party shall adopt such legislative and other measures as maybe necessary to establish as criminal offences the following conduct, when committedintentionally 3 [and involving an organized criminal group]: 4“(a) The [promise,] offering or giving to a public official, 5 directly or indirectly,of an undue advantage, 6 for the official himself or another person or entity, inexchange for acting or refraining from acting in the exercise of his official duties;“(b) The solicitation or acceptance by a public official, directly or indirectly,of an undue advantage, for the official himself or another person or entity, in exchangefor acting or refraining from acting in the exercise of his official duties. 7“[3. Any State Party that has not yet done so shall, in conformity with its internationalobligations, take measures to make punishable conduct referred to in paragraph2 of this article involving:“(a) A foreign public official;“(b) An international civil servant;“(c) A judge or official of an international court.] 82Some delegations wished to ensure that the obligations in this article were subject to the fundamental principles oftheir legal systems, as set forth in article 6, paragraph 2, of document A/AC.254/4/Rev.3. A number of delegations suggestedthat this paragraph should be deleted.3One delegation wished to delete the mental element.4Some delegations felt that a transnational aspect could be included. Others felt that this might restrict the scope ofthe obligation so as to make it of more limited value in fighting organized crime.5See footnote 16 to paragraph 6 below.6Some delegations felt that this term should be more concrete. India proposed that it should be replaced with thewords “any gratification other than legal remuneration”. Venezuela proposed that the words “undue advantage” should bereplaced with the words “undue advantage or other type of advantage”.7Uruguay proposed the reinsertion of the following text from document A/AC.254/4/Rev.3:“An act of corruption in the public sphere committed within the framework of organized crime in order to facilitatesuch criminal activities shall be considered an aggravating factor.“A State Party that has not yet adopted the legal measures necessary for consideration in its domestic law of anact of corruption as an aggravating factor, as referred to in paragraph [...], shall do so.”8Some delegations felt that the conduct described in this paragraph should not be included in this article, in particularin view of the possibility of including such offences in a future instrument on corruption. Other delegations felt that thisparagraph raised concerns about privileges and immunities accorded by international instruments to some of the officialsdescribed in this paragraph. Some delegations, including Belgium, considered this paragraph essential for the fight againstcorruption, particularly in the context of the fight against transnational organized crime. Some delegations proposed the deletionof this paragraph.