United Nations

CRIME PREVENTION AND CRIMINAL JUSTICE DIVISION

United Nations action against

CORRUPTION

and

BRIBERY

September 1997

CONTENTS

Aspects of corruption: its roots and consequences p. 3

Corruption and typology of illicit activities associated with it p. 6

United Nations action against corruption and bribery p. 10

Activities of the Crime Prevention

and Criminal Justice Division: Technical Cooperation p. 19

Conclusion P. 22

Annex 1

General Assembly - Resolution 51/59 Action against corruption and International Code of Conduct for Public Officials

Annex 2

General Assembly - Resolution 51/191 United Nations Declaration against Corruption and Bribery in International Commercial Transactions

Annex 3

Economic and Social Council - Commission on Crime Prevention and Criminal Justice - Sixth session - Promotion and maintenance of the rule of law and good governance. Action against corruption and bribery - Vienna, 28 April - 9 May 1997

Annex 4

Commission on Crime Prevention and Criminal Justice - Sixth session - draft resolution IV International cooperation against corruption and bribery in international commercial transactions

Aspects of corruption: its roots and consequences

Several questions arise in connection with the increased interest in action against corruption at both the national and international levels. In such interest due to the higher occurrence of corrupt practices, higher detection rates or lower levels of (public, official and business) tolerance? The available evidence suggests that the answer may lie in a combination of these explanations. If each of them is examined separately, it will be easier to understand not only the eruption of scandals, but also the explosion of anti-corruption sentiments and how the two can be mutually reinforcing.

There are good reasons to believe that in a world of relative turmoil produced by radical changes in the post-cold-war era, there are new opportunities and incentives to engage in corrupt practices. Although characteristics of particular people can be found that make them more prone to misconduct than others, the problem of corruption is a problem of systems and institutions rather than one of individuals. The structural roots of corruption may be examined under four interrelated categories.

First, there may be monopolistic or oligopolistic situations, in which one or a handful of companies control a given market. The State may wish to engage private companies to perform specific tasks or public works or provide services. To the extent that only a very small number of companies can practically carry out the work, the ground is fertile for corrupt practices (such as overcharging, providing low-quality work or delivering the work late). Such a condition obtains, for example, in the field of defence projects. Indeed, with regard to defence projects, oligopolistic conditions may be desired: no one wishes to see the proliferation of certain types of weaponry or technology that affect both national and international security. In this field, then, it is warranted to devote special attention to transactions and to have special bodies overseeing them. In other cases, oligopolies may be created by rules requiring specific conditions that companies must meet for eligibility, or may be introduced by rules dictating preferential treatment for some companies (for example, domestic versus foreign). Analytically, the same type of situation arises when a party or regime monopolizes power and decision-making for very long periods.

Secondly, very wide discretionary powers in the hands of individuals or organizations can generate temptations and motives for corrupt practices. Whenever there are few or no mechanisms of checks and balances, people will have plenty of opportunities to take undue advantage of their power. Examples of this corrupt-inducing situation are found in authoritarian regimes where powers are concentrated in the hands of very few persons. Another example is the power conferred to people with extremely specialized skills and knowledge. By definition, there are not too many of them, and therefore their powers are to a large extent unchecked. Again, the defence industry may be a concrete illustration of this situation. Additional examples of such a risk can be found in the field of physics, medicine, etc.

Thirdly, lack of transparency reduces the ability to control those in positions of authority. The lack of transparency may be caused by factors ranging from the banking secrecy to dictatorial regimes disallowing the questioning of authority. The same problem arises as a result of rare and specialized skills and knowledge. If a given public work or special warship entails such complex and incomprehensible details that only a few individuals can understand the whole project, transparency is effectively lacking. Whenever regulations of a particular sector are unclear, ambiguous and technically complicated, reporters, the public and lay persons may be completely unable to exercise effective control. The regulation of agricultural subsidies, price supports and loan guarantees in many countries provides a good example of the problem.

Finally, the genesis of corruption may be analysed through the concept of asymmetries. Asymmetries are discrepancies or disjunctions that occur at the legal, administrative, cultural, economic or political level. Although they are either domestic or international, the latter are more consequential in a global community. Asymmetries are conducive to corruption both directly and indirectly through the creation of illegal markets that operate best with the collusion of authorities. Examples of problematic legal asymmetries can be found in banking and tax regimes of different countries. This asymmetry invites many individuals and corporations to seek the most convenient jurisdiction to engage in certain transactions, even if that constitutes a violation of domestic laws. It also provides a shield against the discovery of corrupt practices. Another example is the differential treatment of bribes paid to foreign officials. It is a serious crime in some countries, but a tax-deductible business expense in others. This makes it easy for people to rationalize their corrupt practices as technical violations. Administrative asymmetries fuel the payment of speed money as well as clientelage and patronage systems. When some administrations function better and faster than others, bottlenecks and frustrations will certainly generate motives and rationalizations for illicit payments to "get the job done" or avoid the unnecessary costs of delays. Economic and political asymmetries can produce systematic frustrations in large parts of the population. They underlie and fuel capital flight, as well as the smuggling of aliens into countries where a better future appears possible. In another way, such asymmetries foster attitudes justifying corruption as functional to local economies and as a way of redistributing wealth.

The globalization and liberalization processes of the 1990s have increased the number and types of such asymmetries, or they have generated more awareness of their existence. Therefore, the criminologenic effect can be expected to be higher during the 1990s than before. Law enforcement asymmetries are also increased, at least temporarily, as borders are being redefined or renegotiated in different parts of the world. Lofty expectations in former centrally planned economies are frustrated by disappointment and disillusionment. The wave of privatization processes offer considerable opportunities for misconduct and corruption. Technological advances have made the contact between different countries easier and faster, and this increases the possibility of clashes of traditions or lifestyles, as well as the feelings of relative deprivation. All these reasons suggest that the problem of corruption may indeed be greater now than before.

The momentum of democratization and economic liberalization processes fosters attitudes strongly opposed to discrimination and market distortions caused by corruption. Higher awareness and lower tolerance of the problem, combined with expected increases in the incidence of corruption, account for the intensity of debates and the large number of initiatives against this scourge. Large numbers of people have come to realize the real extent of its negative consequences. All the more so in developing countries, where it has hampered national, social, economic and political progress. Where corruption involves the transfer of funds outside the country, it seriously undermines economic development. This in turn leads to political instability as well as poor roads, schools, medical services, lower education standards and the non-completion of projects. The way funds are allocated is distorted and inefficient; competent and honest citizens feels frustrated, and the general population's level of distrust rises. As a consequence, much foreign aid disappears, productive capacity is weakened, administrative efficiency is reduced and the legitimacy of political order is undermined.

The same effects, if somewhat less acute, can be found in industrialized countries. Individuals who wish to conduct their affairs fairly and honestly are demoralized and lose faith in the rule of law. Corruption breeds distrust of public institutions, undermines ethical principles by rewarding those willing and able to pay bribes, and perpetuates inequality. Economic competition is distorted and public funds are squandered. As institutional and market reforms may lose credibility in the eyes of the public, processes of democratization (which should eventually reduce inequalities and improve transparency and accountability) risk losing momentum.

Because of the substantial amounts involved in corrupt practices every year, the international financial system is also affected. The risk include what has been termed competitive deregulation, whereby jurisdictions seeking to attract these proceeds relax their regulations and enhance secret provisions. Money-laundering becomes an even more lucrative business with a potential corruptive effect, in turn leading to increased dependency of financial systems on such funds. International conflicts and tensions are another risk, as States attempt to repatriate some of the funds, institute extraterritorial investigations that may be injure national pride or raise issues related to sovereignty, while others may be compelled to exert increased pressures on some States to amend their legislation and provide mutual assistance in corruption cases.

The global risks are even higher when links between corruption and organized crime become clearer. Several recent examples have highlighted how the illicit relationships between organized criminal groups and public officials have the potential to cause serious damage to the socio-economic structure of States⁽¹⁾. It is essential to note that serious and profitable illicit activities - whether related to ancient sculpture, nuclear material, drugs, illegal aliens or prostitution - invariably rely at some point in time on the support of corrupt public officials. Corruption is a necessary condition for organized criminals to operate. The risk is that, because of the immense power that some groups command, organized criminals may come to acquire such great power that they would completely undermine and destroy institutions, with dire consequences for democracy and the rule of law.

Corruption and typology of illicit activities associated with it

Over the years, considerable debate has been carried out in both academic and international forum on the definition of corruption. On the basis of the report of the Italian Minister of Justice at the 19th Conference of European Ministers of Justice (organized by the Council of Europe at Valletta, Malta, from 14 to 15 June 1994), the Multidisciplinary Group on Corruption (GMC, the French acronym) of the Council of Europe established the following provisional working definition of corruption: "Corruption as dealt with by the Council of Europe's GMC is bribery and any other behaviour in relation to persons entrusted with responsibilities in the public or private sector which violates their duties that follow from their status as public official, private employee, independent agent or other relationship of that kind and is aimed at obtaining undue advantages of any kind for themselves or for others". In other words, corruption could be said to constitute the combined effect of monopoly of power plus discretion in decision-making in the absence of accountability. This means that officials will have the opportunity to collect corrupt benefits as a function of their degree of monopoly over a service or activity, their discretion in deciding who should get how much, and the degree to which their activities are accountable. Accountability then becomes one of the key issues of international discourse, as well as the ultimate goal of international cooperation.

Large scale corruption may be transnational. Even when a large scale fraud is perpetrated entirely within one country, the necessity to transfer funds overseas introduces an international element. The danger posed by corruption are magnified and exacerbated by its reciprocal relationship with organized transnational crime. In a world that is constantly changing and becoming more interdependent, the long-term consequences of that relationship merit attention and action. Organized criminal groups have demonstrated their preference towards "systemic" corruption designed to ensure the preservation of a congenial and low-risk home base or a comfortable environment in host countries. Such a method of operation may be characterized by widespread use of bribery and favours to ensure the malleability of key positions and agencies; political funding to ensure that politicians elected to office will be indebted to the criminal organizations; carefully targeted "payoffs" to law enforcement personnel to provide intelligence; and the provision of financial incentives to members of the judiciary to ensure that the penalties for criminal activities are either not imposed or are modest. Indeed, systemic corruption is one of the ways in which criminal organizations develop a symbiotic relationship with the State.

A growing awareness that corruption is a serious problem has galvanized support for an international and coordinated fight against it. In spite of this awareness, corruption remains a highly complex phenomenon. Conceptually, it is generally agreed that at the core of the problem lies some form of abuse of power. A generic conceptualization could be the abuse of public office for direct or indirect personal gain. Indirect personal gain would include benefits that someone secures improperly for his or her organization (for example, a company, a political party or a non-profit organization). Given the need for a common understanding of what is at stake and what kind of practices are to be eradicated, it is worthwhile to list several specific questionable or illegal acts that are criminalized in various States. The list is, of course, not exhaustive. This empirical approach towards corrupt practices would avoid culture-bound conceptions, thereby enhancing consensus-building and allowing anti-corruption efforts to gain further momentum.

All the offences dealt with below are frequently differentiated depending on whether the offender is a low-level or high-level official. Distinctions are also made on the basis of the gravity of the offence and the amounts involved. Systemic, large-scale and high-level corrupt practices are more severely punished. Nevertheless, all types and all levels of corruption need to be equally addressed and at the same time, since, the cumulative effect of petty corruption can be just as significant in monetary terms. In addition, it serves to maintain a culture that facilitates corruption, constantly frustrating and demoralizing the public.

Bribery

The penal laws of most countries include the offence of bribery, where private parties offer or promise money or advantages to officials in order to influence their decisions. Variations exist as to the attempt, promise, giving, solicitation or acceptance of a bribe (active and passive bribery). The crime of extortion generally consists in the demand of a benefit by an official. One of the main sources of recent global initiatives springs from the concern that public officials in many countries accept illicit payments or other advantages in order to extend contracts or offer business deals to particular corporations. The criminalization of the direct or indirect offer or actual giving of anything of value to a foreign official in order to assist a company in its international business has become a model that may guide national lawmakers and multinational efforts. This offence is not a new concept, and involves little more than the extension of domestic bribery laws to cover bribery committed in a foreign country. The logic remains the same: no one should be required or allowed to exercise improper influence on the decision of officials in any jurisdiction. Another way in which such practices are dealt with is by resorting to unfair trade or anti-trust regulations. A company or individual that obtains a contract because of illicit payments has gained an unfair advantage over other competitors. Rules governing competition in domestic or international markets address this problem.

Some States equally criminalize and penalize the offeror and the recipient of bribes or other illegal payments. In some States the offence and the penalty are different, depending on whether public officials are or are not involved. In other States, such distinctions have no legal consequences. Also, laws cover the role of intermediaries, if the benefit was provided to a public servant through a nominee or agent.

Fraud

An alternative way of dealing with corrupt payments, especially in transactions between the private and public sector, is through the crime of fraud (as is the case in the United Kingdom of Great Britain and Northern Ireland). When corrupt intentions cannot be proved easily or at all, it may still be possible to demonstrate beyond reasonable doubt that the overpricing of a project is due to the effort of a company to recuperate the cost of bribes. The same applies to cases of providing work of inferior quality than that specified in the contract, charging for goods or services never delivered, altering the specifications or the timing of completion etc.

Other illicit payments

Observers have often referred to "speed money", amounts paid to officials in order to expedite a decision-making or other process. In such cases, officials receive illicit benefits to do what they are supposed to do anyway. In certain cases, advantages are conferred or promised in order to cut the red tape. Although some might rationalize this practice by thinking that it is valuable and in the best interests of their community, such payments ate commonly outlawed.

Another act worthy of consideration is the payment of money to politicians to influence not only their vote in parliament or committees of which they are members, but also for asking particular questions or raising issues. In democratic societies, such practices may be regarded as undermining the principle of one person, one vote, and of equality and fairness - those who do not have the means to influence the political process in this way will not be sufficiently listened to and their interests may not be adequately represented. An offence that may be used to prosecute many of the above-mentioned practices is that of trading in influence, which is currently being considered by the Council of Europe working group on criminal law.

Buying and delivering of votes

A related type of misconduct, also undermining democratic principles, is the direct or indirect purchase of votes. Those able and willing to pay voters to vote for them gain an unfair advantage over those who follow the rules and do not wish to or cannot resort to similar practices. This offence may be committed not only through direct payments, but also though "clientelism" and patronage, whereby favours and jobs may be offered only to those who voted for the official in power.

Votes may be delivered in the sense of accepting favours or other advantages from a public official or representative of a party to ensure that people over whom the deliverer has control in a geographical location, company or other organization will vote for the corrupt candidate.

Illicit political contributions

Some States disallow contributions to political parties or candidates, while others criminalize them when they exceed a certain amount or violate disclosure rules. Sometimes the contributions are outlawed only when they are made by certain categories of persons (for example, by foreigners). If the intention of the contributor is to exert undue influence on a political party or candidate, the offence of bribery can be used in the absence of specific laws regarding such contributions.

Abuse of power and breach of trust

A host of malpractices can be considered as examples of exploitation of a public office and abuse of power or breach of trust. They range from favouritism and illegal discrimination to abusing sensitive or confidential information. Extortionate demands may be made for favourable treatment or for simply not discriminating against a private person. Demands may include payments, gifts or sexual intimacy.

Abuses of power may take place in the process of liberalization of economies as State-owned companies are privatized. Opportunities exist in this process for officials to undervalue the price of a company, so that it is sold very cheaply to private interests. The value of the company and, consequently, the price of its shares may go significantly higher within a short period of time. Officials can then be rewarded in a variety of ways. Officials who have special knowledge about pending or not publicity announced decisions may commit insider trading, by engaging in commercial or business activity in an unauthorized and improper fashion on the basis of non-public information. For instance, they may buy the stock of companies that they know will be awarded a contract by the Government (the price of the stock is likely to go up when a big order is publicly announced, and corrupt officials can then sell the shares at a substantial profit). This trading, again, may occur through relatives, nominees or shell corporations. Inside knowledge may be abused by disclosing to a company representative the secret details of a competitor's bid for a public construction work. The company thus obtains the order by being able to prepare its own proposal with the advantage thus given. In this case, unfair competition laws may apply. The corrupt official may be given something of value in exchange. Some observers have noted the case of deferred bribery, a type of misconduct that is not easy to criminalize but worth considering because of its harmful effects. This type of bribery occurs when the official is simply given a very well-paid position in a company that he favoured while in office shortly after he retires from public service. Because the elements of bribery in such cases are hard to prove, some States have introduced, or are considering the introduction of, laws prohibiting officials from working for companies that they regulated, or which were involved in transactions with the officials' department while these officials were in office. Other States opt for a waiting period during which former officials cannot accept employment from entities in such cases as mentioned above - two or more years. Disallowing the use of "revolving doors" can help strengthen public perceptions of the integrity of their government and officials.

Officials with powers of control over revenue departments or social agencies have the opportunity to interfere improperly with the work of those bodies. They may orchestrate persecutions of political opponents, organizations or companies for ideological of profit-motivated reasons. They may direct the selective prosecution of certain offenders, or systematically turn a blind eye to other offenders. They may arbitrarily undercharge or overcharge taxes and duties on commercial transactions to the point of extortion. Obstruction of justice is an offence that may be used against officials who seek to hide or cover up such illegal activities by misdirecting investigations or destroying evidence. Such misconduct is often linked to the operation of illegal enterprises and markets - what is usually considered organized crime. The best-organized crimes perpetrated discreetly, without risking scandals and public attention, and with the collaboration of officials. Whenever there is suspicious of serious drug trafficking, arms trafficking or other smuggling operations on a grand scale, it can be expected that the collusion and illicit enrichment of some official will be found. In dealing with such practices, legal tools used against organized criminal groups, such as the Racketeer Influenced and Corrupt Organizations (RICO) statue in the United States of America, may prove useful in the punishment of corrupt officials.

Misappropriation of public funds

The offences of abuse of power and breach of trust can also be used against practices that involve the misuse and misappropriation of public funds or resources. Public officials may divert public money to their accounts or those of a partner. Some autocratic rulers are known for the systematic looting of their countries' wealth. Additional offences that may be used in those cases include embezzlement and theft, both of which are quite common among Member States. States that apply currency restrictions and controls may use the violation of those rules to prosecute corrupt officials who export the proceeds of their illicit profits overseas. Other States may resort to laws prohibiting tax evasion, given that this illegal income is neither declared nor taxed. In the event that an official is unable to explain his or her net worth and level of spending, prosecutors may be able to use this as an evidence of tax evasion.

Conflict of interest

Public officials have the obligation to be fair, impartial and efficient in their public roles. The legislation of many States provides that it is not appropriate for officials to make decisions significantly affecting companies in which they are shareholders or directors. Such conflicts, in some States, are outlawed entirely. In others, the officials must declare the conflict and withdraw from the decision-making process with respect to the area of potential conflict. In yet other States, mere disclosure of the conflict is considered sufficient to prevent improper decisions by an official. In those cases, non-disclosure of related interests is a punishable offence. The same would apply to violations of routine obligations of public servants to place their assets on public records (sometimes including the assets of their close family members).

United Nations action against corruption and bribery

The United Nations has been concerned with the problem of corruption for more than two decades. The matter has been discussed by the quinquennial United Nations congresses on the prevention of crime and the treatment of offenders, particularly with reference to new forms of crime and crime prevention planning in the context of development. The Fifth Congress on the Prevention of Crime and the Treatment of Offenders, held in Geneva in 1975, focused on crime as business at the national and international levels, bringing particular attention into organized crime, white collar crime and corruption. The working paper prepared by the Secretariat and titled: "Changes in Forms and Dimensions of Criminality - Transnational and National"⁽²⁾, recognized the increasing threat posed by economic crimes, and in particular by corruption, to many countries in the world. The report also noted that for most countries the economic and social consequences of economic criminality are much greater than the consequences of the traditional forms of violent crime and crime against property. The Fifth Congress also considered the role of the police in the prevention of crime, in accordance with a specific request made by the General Assembly in 1974 (resolution 3218 - XXIX).

In the working paper on: "The Emerging Role of the Police and Other Law Enforcement Agencies, with Special Reference to Changing Expectations and Minimum Standards of Performance"⁽³⁾, the Secretariat noted that when corruption occurs in high places, it is a problem for those who are expected to keep order to maintain standards different from those respected by their superiors. For this reason, corruption within the police depends largely upon the influence, guidance and interest of the total society on the police. Nevertheless, it is still true that a police force is in a unique position and a police officer cannot be regarded simply as an ordinary citizen in so far as his conduct is concerned. By virtue of his appointment, he is expected to behave in a manner that is at least one level higher than that of most persons.

In preparation for the Fifth Congress, the United Nations convened a working group of police experts from several regions of the world in January 1975 (Warrenton, Virginia, United States of America) to help draft an international code of ethics for the police and related law enforcement agencies. The working group, after reviewing the methods used in setting standards for law enforcement officials in various parts of the world and studying a variety of models, prepared a draft international code of police ethics, which was subsequently presented to the Congress, as part of the above mentioned working paper prepared by the Secretariat.

On the basis of the above, the Fifth Congress, which is remembered mainly for having offered the Declaration on the Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, discussed the scope and content of the international code of conduct and recommended the General Assembly be requested to establish a committee of experts to study the question of an international code of police ethics and within one year prepare a new document to be considered by the competent organs of the United Nations, including the feasibility of regional groups drafting preliminary documents, consisting of representatives who would reflect the cultural and legal system of each region. The General Assembly, by resolution 3453 (XXX) of 9 December 1975, requested the Committee on Crime Prevention and Control "to elaborate, on the basis of, inter alia, the proposal presented to and conclusions arrived at by the Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, a draft code of conduct for law enforcement officials and to submit this draft code to the General Assembly".

The Fourth session of the Committee on Crime Prevention and Control (New York, 21 June-2 July 1976) elaborated, on the basis of the proposals presented to and conclusions arrived by the Fifth Congress a draft code of conduct, for submission to the Assembly. Further its consideration, the Assembly established in 1977 an intersessional working group of the Third Committee to achieve universal consensus on its text.

In finalizing the working of the code, much attention was devoted to the question of police professionalism and accountability. Regarding the problem of corruption among police officials, the code states that: "Corruption being intolerable in all phases of life, and inasmuch as Governments cannot expect to enforce the law among their citizens if they cannot, or will not, enforce the law against their own agents and agencies, it is incumbent upon law enforcement officials to rigorously oppose and pursue all acts of corruption coming to their attention". At its thirty-fourth session, in 1979, the General Assembly adopted the Code of Conduct for Law Enforcement Officials, by resolution 34/169. The Assembly decided to transmit the Code to Governments with the recommendation that favourable consideration should be given to its use within the framework of national legislation or practice as a body of principles for observance by law enforcement officials.

While assisting Countries in the implementation of the above mentioned code, the United Nations has also devoted substantial energy to develop proposals on practical steps that States can follow in their efforts to devise and implement strategies and reforms. In this connection, for example, the Eighth Congress considered a draft resolution on international co-operation for crime prevention and criminal justice in the context of development, to which were annexed a series of recommendations on the subject. Recommendation 8 reads as follows: "Because the corrupt activities of public officials can destroy the potential effectiveness of all types of governmental programmes, hinder development, and victimize individuals and groups, it is of crucial importance that all nations should: (a) review the adequacy of their criminal laws, including procedural legislation, in order to respond to all forms of corruption and related actions designed to assist or to facilitate corrupt activities, and should have recourse to sanctions that will ensure an adequate deterrence; (b) devise administrative and regulatory mechanism for the prevention of corrupt practices or the abuse of power; (c) adopt procedures for the detection, investigation and conviction of corrupt officials; (d) create legal provisions for the forfeiture of funds and property from corrupt practices; and (e) adopt economic sanctions against enterprises involved in corruption. The Crime Prevention and Criminal Justice Branch should co-ordinate the elaboration of materials to assist countries in these efforts, including the development of a manual to combat corruption, and should provide specialized training to judges and prosecutors that would qualify them to deal with the technical aspects of corruption, as well as with the experience derived from specialized tribunals handling such matters"⁽⁴⁾.

Almost one year early, and also as part of the preparation activities for the Eighth Congress, the Crime Prevention and Criminal Justice Branch (now Division), in cooperation with the Department of Technical Cooperation for Development (now part of the new Department for Development Support and Management Services) organized an Interregional Seminar on Corruption in Government, hosted by the Government of the Netherlands at The Hague⁽⁵⁾. The Seminar was attended by high-level officials from 18 developing countries from all the regions and by observers from eight developed countries, non-governmental organizations, academic institutions, independent anti-corruption bodies and ombudsman's offices. A first draft Manual to Combat Corruption, prepared for submission to the Eighth Congress, was circulated for comments. The Seminar conducted in-depth discussions on the forms of corruption in government, and its causes, consequences, and relationships with organized crime; and it assessed the existing measures against corruption, as well as appropriate actions to be taken against it at the national, regional and international levels. At the same time, the role of international cooperation in the prevention, detection, investigation, prosecution and sanctioning of corrupt practices and enforcement in the public management system, was highlighted. The need for better information and expertise, and facilitating technical cooperation and mutual assistance through technical co-operation among developing countries was emphasized. Finally, the possibility of an international convention to deal with transnational corruption and an international code of ethics for public service was also considered.

On the basis of the above, the Eighth Congress received a new version of the Manual on Practical Measures against Corruption. Its purpose was to review the most common problems encountered by policy-makers and practitioners in their efforts to deal with corruption. It highlights possible measures that could be taken and procedures for devising anti-corruption programmes. In suggesting possible courses of action, the manual touches on legal issues whose degree of relevance and difficulty may vary, depending on the legal system of each country. As far as possible, such issues have been taken into account, in order to facilitate the adaptability of the Manual to as many contexts as possible. After that Congress, the Manual was circulated to experts around the world and the comments received were incorporated to produce a revised version, which was published as a special issue in the International Review of Criminal Policy⁽⁶⁾.

The Eight Congress also adopted resolution 7 on "corruption in government" recommending that Member States should devise a variety of administrative and regulatory mechanism for the prevention of corrupt practices, and inviting them to review the adequacy of their criminal laws, including procedural legislation, to respond to all forms of corruption and to actions designed to assist or facilitate corrupt activities. The Eighth Congress requested the Secretariat to provide technical cooperation assistance to requesting Member States in the fields of strategic planning of anti-corruption programmes, law reforms, public administration and management, training of public officials and criminal justice personnel, and in tendering international aid projects. The Secretariat was also requested to organize regional and interregional seminars, expert group meetings, workshops and other appropriate activities. These were intended to encourage the exchange of information on anti-corruption techniques, laws and research, and in the examination and promotion of improvements in institutional arrangements and processes. In addition, these activities were also directed towards the improvement of the management of the justice process, through the use of databases, to improve decision-making. Finally, the Secretary was requested to develop a draft international code of conduct for public officials, for submission to the Ninth Congress.

The issue of corruption received further attention by the General Assembly, which adopted resolution 45/107 of 14 December 1990 on international cooperation for crime prevention and criminal justice in the context of development, as recommended by the Eighth Congress. The Assembly reiterated the recommendations of the Eighth Congress regarding the measures that should be adopted by Member States and recommended that the Branch coordinate the elaboration of materials to assist countries in their efforts against corruption and to provide specialized training to judges and prosecutors to qualify them to deal with the technical aspects of corruption.

One year later, and as a result of the Ministerial Summit held in November 1991 and the restructuring of the Crime Programme, the Assembly adopted a Statement of Principles and Programme of Action, annexed to its resolution 46/152, in which it decided that the United Nations Crime Prevention and Criminal Justice Programme should be designed to assist the international community in meeting its pressing needs in the field of crime prevention and criminal justice and to provide countries with timely and practical assistance in dealing with problems of both national and international crime. For this reason a new functional interregional body was established: the Commission on Crime Prevention and Criminal Justice. Among the goals of the programme would be the integration and consolidation of the efforts of Member States in preventing and combatting transnational crime and the promotion of the highest standards of fairness, justice and professional conduct.

At its second session, the Commission on Crime Prevention and Criminal Justice (Vienna, 13-23 April 1993) had before it a number of suggestions regarding possible subjects of workshops to be organized during the Ninth Congress. Corruption was one of those subjects. On the recommendation of the Commission, the Economic and Social Council decided, by its resolution 1993/32 of 27 July 1993, to devote one day of plenary general discussions at the Ninth Congress to the issue.

In pursuance of resolution 7 of the Eighth Congress, the Secretariat elaborated a draft international code of conduct for public officials, which was discussed by the five regional preparatory meetings for the Ninth Congress and by the Commission at its third session. It also prepared a working paper⁽⁷⁾ which helped for approaching the discussion in plenary, which was introduced by five panellists⁽⁸⁾. The Economic and Social Council, in its resolution 1994/19, section VI, of 25 July 1994, recommended that the Ninth Congress should consider the desirability of a code of conduct for public officials, and that the Secretary-General should seek comments from Member States and relevant entities, in order to assist the Commission on Crime Prevention and Criminal Justice in its consideration of the matter at its fourth session.

As recommended by the Congress, the draft code was submitted to the Commission at its fourth session (Vienna, 30 May-9 June 1995) for its review and comments. The Commission was of the opinion that the draft code, when finalized, could constitute an important tool for the operational activities of the United Nations Crime Prevention and Criminal Justice Programme, as well as for States wishing to include similar codes in measures to prevent and control corruption.

In its resolution 1995/14 on action against corruption, adopted on the recommendation of the Commission on Crime Prevention and Criminal Justice at its fourth session, the Economic and Social Council requested the Secretary-General to finalize the draft code, on the basis of the comments received from Governments. In the same resolution, the Council urged States to develop and implement anti-corruption measures, to increase their capacities to prevent and adequately control corrupt practices, and to improve international cooperation in this field. The Council also requested the Secretary-General, inter alia, to review and expand the Manual on Practical Measures against Corruption, then published in the above-mentioned double-issue of the International Review of Criminal Policy; to coordinate and cooperate with other United Nations entities and relevant international organizations in the anti-corruption efforts; and to keep the issue of action against corruption under regular review. The General Assembly, by resolution 50/225 on "Public administration and development"⁽⁹⁾, also took note of the fact that the United Nations system, responding to requests from interested Member States, has contributed in support of their public administration to include wider aspect of governance, including democratic, legal and judiciary reform, and strengthening of the civil society and recognized that Governments in all countries should make their procedures transparent in order to avoid and combat all acts of corruption.

Accordingly, on its proposal, and as recommended by the Council in its resolution 1996/8, the General Assembly, in December 1996, adopted the International Code of Conduct for Public Officials⁽¹⁰⁾ recommending it to Member States as a tool to guide their efforts against corruption. The Assembly requested the Secretary-General to distribute the Code to all States and to include it in the Manual on Practical Measures against Corruption, to be revised and expanded pursuant to Council resolution 1995/14. The Assembly further requested the Secretary-General to continue to collect information and legislative and regulatory texts from States and relevant intergovernmental organizations, in the context of his continuing study of the problem of corruption.

According to the Code a public office is a position implying a duty to act in the public interest. As a consequence the ultimate loyalty of public officials shall be to the public interests of their country. The code also focuses on several issues concerning the conduct of public officials, such as: (a) Conflict of interest and disqualification; (b) Disclosure of assets; (c) Acceptance of gifts or other favours; (d) Confidential information; (e) Political activity. Concerning the conflict of interest and disqualification, the Code states that:

- Public official shall not use their official authority for the improper advancement of their own or their family's personal or financial interest. They shall not engage in any transaction, acquire any position or function or have any financial, commercial or other comparable interest that is incompatible with their office, functions and duties or the discharge thereof;

- Public officials shall, in accordance with laws or administrative policies, declare business, commercial and financial interests or activities undertaken for financial gain that may raise a possible conflict of interest;

- Public officials shall at no time improperly use public moneys, property, services or information that is acquired in the performance of, or as a result of, their official duties for activities not related to their official work;

- Public officials shall comply with measures established by law or by administrative policies in order that after leaving their official positions they will not take improper advantage of their previous office.

The General Assembly, after the approval, in March 1996, by the Member States of the Organization of American States of the Inter-American Convention against Corruption and aware of the relevant work developed by other regional and international organizations, such as the Council of Europe and the European Union, to combat international bribery, adopted, by its resolution 51/191 (see annex 2), the United Nations Declaration against Corruption and Bribery in International Commercial Transactions annexed to the resolution. The Declaration recognized the importance of promoting social responsibility and appropriate standards of ethics not only in the public sector, but also in private corporations, "including transnational corporations, and individuals engaged in international commercial transactions, inter alia, through observance of the laws and regulations of the countries in which they conduct business, and taking into account the impact of their activities on economic and social development and environmental protection".

The Declaration also urged Member States to take concrete action:

- to combat all forms of corruption, bribery and related illicit practices in international commercial transactions;

- to criminalize bribery of foreign public officials in an effective and coordinate manner;

- to develop or maintain accounting standards and practices that improve the transparency of international commercial transactions;

- to develop or to encourage the development, as appropriate, of business codes, standards or best practices that prohibit corruption, bribery and related illicit practices in international transactions;

- to examine establishing illicit enrichment by public officials or elected representative as an offence;

- to cooperate and afford one another the greatest possible assistance in connection with criminal investigations and other legal proceedings brought in respect of corruption and bribery in international commercial transactions;

- to enhance cooperation to facilitate access to documents and records about transactions and about identities of persons engaged in bribery in international transactions;

- to ensure that bank secrecy provisions do not impede or hinder criminal investigations or other legal proceedings relating to corruption, bribery or related illicit practices in international commercial transactions, and that full cooperation is extended to Governments that seek information on such transactions.

The General Assembly also requested the Economic and Social Council and its subsidiary bodies, in particular the Commission on Crime Prevention and Justice: (a) to examine ways, including through binding international instruments, without in any way precluding, impeding or delaying international, regional or national actions, to further the implementation of the resolution and the Declaration, so as to promote the criminalization of corruption and bribery in international commercial transactions; (b) to keep the issue of corruption and bribery in international commercial transactions under regular review; and (c) to promote the effective implementation of the resolution.

As a follow-up of the request to revise and to expand the Manual on Practical Measures against Corruption, the Crime Prevention and Criminal Justice Division of the Secretariat, with the assistance of the Government of Argentina, organized a meeting of experts from all regions at Buenos Aires from 17 to 21 March 1997 to consider ways and means of strengthening international cooperation in this field, as well as to offer suggestions on the revision and expansion of the manual (see annex 3). The Expert Group Meeting on Corruption brought to the attention of the Commission at its sixth session that action against corruption requires the adoption and revision of legislation and regulatory provisions to ensure that there is in place a set of measures that facilitate the prevention, detection, deterrence, prosecution and adjudication of corruption, fully taking into account the evolving nature of the problem and its various manifestations. The Expert Group Meeting also recommended that consideration should be given to the following specific measures:

1. Disclosure by public officials of assets and liabilities;

2. Guidelines for the performance of duties by public officials;

3. Introducing or strengthening existing independent auditing institutions or bodies that vet public expenditures;

4. Establishment of specialized anti-corruption bodies;

5. Measures to introduce or encourage transparency in the management of public funds and in the decision-making process;

6. Establishment of transparent and competitive procedures for tendering and supervision of public works contracts and introduction of clear procurement rules;

7. Measures to ensure free competitions, including anti-trust regulations;

8. Measures to prevent improper advantages;

9. Elimination of curtailment of bank secrecy;

10. Measures to ensure and encourage public participation;

11. Measures to ensure accountability and effective disciplinary action;

12. Financing of political parties and campaigns;

13. Guaranteeing freedom of the parties and the right to information;

14. Elaboration and introduction of codes of ethics for certain categories of professions;

15. Elaboration of a programme to encourage the implementation of the International Code of Conduct for Public Officials.

Pursuant to resolutions 51/59 and 51/191, the Crime Prevention and Criminal Justice Division organized the African Regional Ministerial Workshop on Action against Organized Crime and Corruption at Dakar, Senegal, from 21 to 23 July 1997, at the invitation of the Government of Senegal. The Workshop was supported by the Agency for Cultural and Technical Cooperation (ACCT), and in cooperation with the United Nations International Drug Control Programme (UNDCP). The Dakar Ministerial Workshop was crucial in the translation of declarations of political support into concrete action plans for the implementation of effective regional cooperation, covering investigation and legal assistance, extradition and confiscation of criminal proceeds. In this context, three projects had been prepared covering the fields of organized crime control, an inventory of trafficking routes in Africa and the elaboration of instruments to fight corruption for the consideration and approval of the African Ministers. At its final meeting on 23 July 1997, the Workshop adopted unanimously the Dakar Declaration. In the Declaration the Ministers and Representatives of the African States expressed their concern about the increase and expansion of organized criminal activities, corrupt practices and bribery in international commercial transactions, recognizing the importance of the contribution that the United Nations Crime Prevention and Criminal Justice Programme can make to the implementation of the United Nations New Agenda for the Development of Africa in the 1990s, in particular regarding the intensification of the democratic process and the strengthening of the protection of the civil society. The Ministers and Representatives of African States expressed their commitment to combat corruption and organized crime by:

- Reviewing and strengthening the existing institutions, in particular the criminal justice systems and establishing appropriate mechanisms to coordinate action at the national level;

- Reviewing, modernizing and harmonizing existing substantive and procedural legislation and regulatory regimes, to ensure their continued relevance, efficiency and adaptability to the various forms of corrupt practices, including in the context of international commercial transactions, and to modern manifestations of organized crime;

- Elaborating and adopting new laws and regulations, designed to meet the challenge posed by the complexity and sophistication of organized crime and corruption;

- Upgrading the skills of the law enforcement and criminal justice personnel, increasing their knowledge and expertise, and raising their professional abilities, to enable them to effectively implement relevant legislation and regulations, for the purpose of preventing and controlling organized crime and corruption.

At its sixth session, the Commission on Crime Prevention and Criminal Justice (Vienna, 28 April-9 May 1997) recommended the adoption of five draft resolutions by the General Assembly. One of these draft resolution was the "International cooperation against corruption and bribery in international commercial transactions" (see annex 4). The draft resolution stressed the threat posed by the bribery of public officials by individuals and enterprises to the international commercial transactions. The draft resolution also urged Member States "to criminalize, in an effective and coordinated manner, the bribery of public office holders of other States in international commercial transactions and encourages them to engage, as appropriate, in programmatic activities to deter, prevent and combat bribery and corruption (...)". During the Commission great attention was given to preventive measures, in particular to the establishment or strengthening of already existing auditing institutions or agencies having the authority and the capacity to scrutinize public expenditure, to the elaboration and introduction of code of ethics for certain categories of professions, to measures to ensure accountability and effective disciplinary action, to measures to guarantee the independent status of officials working within the public sector or in charge of fighting against corruption and bribery, and educational programmes to promote ethical values and training programmes for law enforcement officers. Particular importance was attached to measures taken at the national level to promote transparency in the expenditure of public funds by allowing or encouraging public access to and monitoring of the related decision-making process.

Activities of the Crime Prevention and Criminal Justice Division:

Technical Cooperation

The Crime Prevention and Criminal Justice Division has also made efforts to provide its technical cooperation services to requesting Member States to enable them to enhance their capacity to develop and pursue anti-corruption policies and strategies effectively and to combat corrupt practices and related activities.

In this connection, the Division undertook a number of needs assessment missions at the request of Member States (Angola, Gambia, Romania, Senegal, Sierra Leone, the former Yugoslav Republic of Macedonia and Togo). As a follow-up to those missions, five projects proposals have been elaborated and are either awaiting funding or are in the first stages of implementation.

The first project is aimed at strengthening the institutional capacity of Angola to prevent and fight corruption. The project accords high priority to the improvement of the effectiveness of Angolan legislation in combatting activities related to corruption by introducing new and more effective measures. The project includes the provision of assistance in improving the capacity of Angola for international cooperation in criminal matters, mainly through promoting the harmonization of its various penal laws with those of other countries in the subregion. Further, the project includes practical measures such as establishing a national commission on corruption with the tasks of coordinating action and setting up database in this field.

The aim of the second project is to provide advisory services and training to assist the Government of the former Yugoslav Republic of Macedonia in its efforts against corruption. The project also aims at elaborating anti-corruption legislation and envisages the introduction of basic concepts of community policing and the provision of training to improve police skills in the prevention and control of criminal activities related to corruption.

The objective of the projects for Gambia, Guinea and Sierra Leone is to build and strengthen the institutional mechanism of those States for preventing and fighting corruption, initially through introducing new legislative tools, as well as setting up a national commission on corruption and an interministerial unit aimed at coordinating national and subregional efforts in the fight against corruption. The projects provide for assistance in facilitating cooperation within the subregion through the conclusion of agreements on extradition and mutual assistance with neighbouring countries. The projects also envisage a training programme for judges, prosecutors and law enforcement officers, as well as the provision of technical assistance for the establishment of a central database to store and retrieve relevant information on corruption activities to be run by the interministerial unit. Finally the projects seek to strengthen the exchange of information and experience between the States concerned and international agencies.

The Crime Prevention and Criminal Justice Division has also elaborated practical tools for technical cooperation activities in the field of corruption, such as the model law on corruption. In 1996, the interregional advisor of the Division was asked by the authorities of Romania, to identify possible areas of activities in the field of corruption. As a result of that mission, undertaken jointly with UNDCP and UNDP, the Division elaborated a project proposal for building and strengthening the capacity of the Romanian criminal justice system to prevent and fight corruption and organized crime activities. As a first step in the implementation of the project, the Parliament of Romania is going to discuss a law on corruption drawn upon the model law and tailored to local needs with the assistance of the Division. The project for Romania also pursues the establishment of a national commission against corruption to coordinate national policies in this area, assistance on providing a training programme and the development of the capacity for the exchange of information and experiences.

As a follow-up to the signature of a memorandum of understanding with respect to the provision of technical assistance in the area of crime prevention and criminal justice between the Division and the Ministry of Justice of Bosnia and Herzegovina, the Division, in cooperation with Department for Development Support and Management Services and UNDP, has developed a project for strengthening the administration of justice in Bosnia and Herzegovina. One of the main objectives of the project is to provide advisory assistance on anti-corruption strategies, thereby strengthening the criminal justice mechanism of the State in this particular area.

UNDP has become increasingly interested in corruption as part of the work of its Management Development and Governance Division (MDGD). Programmes that explicitly attempt to reduce malfeasance in government are complementary to the MDGD's broader mandate to help countries reform their institutional structures. As a result of the new partnership between the Division and UNDP, a memorandum of understanding with the Regional Bureau for Eastern Europe and the Commonwealth of Independent States was signed in 1996. This memorandum of understanding will provide opportunities for joint needs assessment missions and fund-raising and the actual funding or co-funding of projects in crime prevention and criminal justice, particularly with regard to action against corruption.

The Division is also cooperating closely with the Inter-Parliamentary Union, with a view to addressing issues of mutual concern and exchanging experiences and expertise, particularly considering the intense interest of that organization in action against corruption and its ongoing work in this area.

Further, the Division continued to cooperate and interact with the scientific and research institutions involved in criminological activities, such as the International Society of Social Defence, which held its thirteenth international congress at Lecce, Italy, from 28 to 30 November 1996, on the theme of "Social defence, corruption, and the protection of public administration and the independence of justice". The international congress was an occasion to carry out an in-depth examination of available legislative options, whether in criminal, administrative or constitutional law, to prevent and control corruption and ensure fairness, equity and justice in both the public and private sectors.

In view of the growing needs of States and the consequent increase in requests for technical assistance, the Division plans to continue developing operational activities in this area. In this context, the Division could collect and analyse national anti-corruption strategies, in order to elaborate compilations of best practices, which would form the basis for training programmes. Further, the Division could undertake the elaboration of comparative studies, which would assist States in designing, formulating and implementing joint strategies and collaborative arrangements to prevent and control corruption. The technical cooperation activities of the Division could also include model courses for universities and schools of business and public administration, as well as the provision of assistance in organizing public campaigns to promote good governance, for the purpose of enlisting public support for necessary anti-corruption resources and legislation. In addition, the Division could provide assistance in the establishment of special anti-corruption entities, including by elaborating feasibility studies and making available the required expertise. The need for such entities, is of high priority, particularly in the case of transnational bribery and corruption, where the sensitive nature of the transactions, the usually high level of the officials involved and the diversity of sophisticated techniques for the transfer and concealment of the proceeds make detection of corrupt activities extremely difficult.

Conclusion

The phenomenon of corruption, in all its forms, has commanded such international attention and concern that it has led to an emerging consensus regarding the urgency of concerted action at all levels. The complex and often elusive nature of the phenomenon, as well as its increasingly evident and alarming links with other forms of criminal activities, warrant focused attention, continued commitment and unwavering political will. Solutions are not easy, particularly in view of the fact that addressing the phenomenon effectively in its numerous forms would require action at various levels and with diverse modalities, necessitating parallel and well-coordinated activities and interventions. As it has been noted, even through international organizations are lending their help in fighting corruption through aid for democratic reform, more competitive economies and the improvement of governance, a more focused efforts is needed, involving a systematic attack on systematic corruption. This is a process whose constituent elements should be advanced at the same speed and with the same vigour at all levels, in order for success to be achieved. At the international level in particular, it appears essential to enhance the momentum for advancing international agreements and cooperation arrangements, while devoting the necessary energy and resources to creating an environment in which corrupt practices would no longer be tolerated.

Annex 1

General Assembly - Resolution 51/59 Action against corruption and International Code of Conduct for Public Officials

Date: 12 December 1996 Meeting: 82

Adopted without a vote Report: A/51/610

The General Assembly,

Concerned at the seriousness of problems posed by corruption, which may endanger the stability and security of societies, undermine the values of democracy and morality and jeopardize social, economic and political development,

Also concerned about the links between corruption and other forms of crime, in particular organized crime and economic crime, including money-laundering,

Convinced that, since corruption is a phenomenon that currently crosses national borders and affects all societies and economies, international cooperation to prevent and control it is essential,

Convinced also of the need to provide, upon request, technical assistance designed to improve public management systems and to enhance accountability and transparency,

Recalling the Inter-American Convention against Corruption, adopted by the Organization of American States at the Specialized Conference for Consideration of the Draft Inter-American Convention against Corruption, held at Caracas from 27 to 29 March 1996,

Recalling also its resolutions 45/121 of 14 December 1990 and 46/152 of 18 December 1991, and Economic and Social Council resolutions 1992/22 of 30 July 1992,1993/32 of 27 July 1993 and 1994/19 of 25 July 1994,

Recalling in particular its resolution 50/225 of 19 April 1996, adopted at its resumed session on public administration and development,

Recalling Economic and Social Council resolution 1995/14 of 24 July 1995 on action against corruption,

Recalling also the work carried out by other international and regional organizations in this field, including the activities of the Council of Europe, the European Community, the Organisation for Economic Cooperation and Development and the Organization of American States,

1. Takes note of the report of the Secretary-General on action against corruption, ⁽¹¹⁾ submitted to the Commission on Crime Prevention and Criminal justice at its fifth session;

2. adopts the International Code of Conduct for Public Officials, annexed to the present resolution, and recommends it to Member States as a tool to guide their efforts against corruption;

3. Requests the Secretary-General to distribute the International Code of Conduct to all States and to include it in the manual on practical measures against corruption, to be revised and expanded pursuant to Economic and Social Council resolution 1995/14, with a view to offering both those tools to States in the context of advisory services, training and other technical assistance activities;

4. Also requests the Secretary-General to continue to collect information and legislative and regulatory texts from States and relevant intergovernmental organizations, in the context of his continuing study of the problem of corruption;

5. Further requests the Secretary-General, in consultation with States, relevant intergovernmental and non-governmental organizations, as well as in cooperation with the institutes comprising the United Nations Crime Prevention and Criminal Justice Programme network, to elaborate an implementation plan and submit it to the Commission on Crime Prevention and Criminal Justice at its sixth session, in conjunction with his report to be submitted pursuant to Economic and Social Council resolution 1995/14;

6. Urges States, relevant intergovernmental and non-governmental organizations, as well as the institutes comprising the United Nations Crime Prevention and Criminal Justice Programme network, to extend to the Secretary-General their full support in elaborating the implementation plan and in implementing paragraph 4 above;

7. Urges Member States carefully to consider the problems posed by the international aspects of corrupt practices, especially as regards international economic activities carried out by corporate entities, and to study appropriate legislative and regulatory measures to ensure the transparency and integrity of financial systems and transactions carried out by such corporate entities;

8. Requests the Secretary-General to intensify his efforts to closely cooperate with other entities of the United Nations system and other relevant international organizations and to more effectively coordinate activities undertaken in this area;

9. Also requests the Secretary-General, subject to the availability of extrabudgetary resources, to provide increased advisory services and technical assistance to requesting Member States, in particular in the elaboration of national strategies, the elaboration or improvement of legislative and regulatory measures, the establishment or strengthening of national capacities to prevent and control corruption, as well as in training and upgrading skills of relevant personnel;

10. Calls upon States, relevant international organizations and financing institutions to extend to the Secretary-General their full support and assistance in the implementation of the present resolution;

11. Requests the Commission on Crime Prevention and Criminal Justice to keep the issue of action against corruption under regular review.