The 9th International Anti-Corruption Conference
Objectives of the Regional Workshop:
Beyond the general thematic framework of the OAS Inter-American Convention against Corruption, the workshop had three thematic focus areas which reflect focus issues of the Convention itself: justice, media and civil society. The workshop was divided into two sessions. During the first session, which was followed by a general discussion the four panellists made presentations related to the focus issues. Following the presentations, three working groups were formed in the second session in order to discuss and evaluate practical experiences and elaborate common tools and strategies in the different focus areas. The second session was concluded by a general reporting-back session.
Mr.García first provided an overview of the special features of the Organisation of American States as a primarily political and legal organisation, as well as the socio-economic realities of its 34 member states. He then outlined the different reasons that have driven both industrialised and developing countries to incorporate the issue of corruption into their political agenda. Among these are, from the point of view of industrialised countries, the increasing international competition for international contracts and, form the point of view of developing countries, the need for good government as a fundamental condition for socio-economic development. With regard to the OAS Inter-American Convention against Corruption, Mr. García focused on different programmes and projects that have been put into practice by different organs of the OAS in Latin America in order to help implement the Convention. Among these is a joint initiative of OAS/IDB aiming at introducing anti-corruption measures prescribed by the Convention into national legislation. The last part of the session included an analysis of the difficulties in implementation and outlined the work that still needs to be done.
Mr. VARGAS' presentation began with the assertion that the problem of corruption within the judiciary does not have its root in the fact that judges are corrupt - as is commonly assumed - but in structural deficiencies of the entire judicial system. Consequently, the common practice of replacing judges has not proved any success in Latin America so far. It is therefore important that public policies aim to enable the system to function independently from the persons in charge. Mr.Vargas went on to present an analysis of structural problems within the Latin American judiciary systems, which allow corrupt practises to occur. He especially highlighted the question of whether judges or entire judiciary systems should be independent.
The Centre of Investigative Journalism, headed by Mr.Armendares, is a network of investigative journalists which aims to increase co- operation among members of the profession in order to improve professional journalism for the benefit of the public in México and Latin America. He described the mission of investigative journalists as "putting things together in order to show how they function and how people behave in a society in crisis". After outlining the social, legal and political context in Latin America, which severely restricts investigative journalism, Mr. Armendares concentrated on the possible tools investigative journalists could use under such circumstances. Mr. Armendares stressed the importance of going beyond the immediate scandal by trying to obtain, analyse, evaluate and publish information. In this connection, he pointed out the necessity of gaining knowledge of the specific national legislation related to access to information and making full use of it. In the same way, journalists should know about international legal instruments and lobby for their implementation. Journalists should take advantage of the increase of information made available through advances in information technology. In his concluding remarks, Mr.Armendares emphasised the need to establish relations of trust with public officials, colleagues in the media and civil society organisations.
Departing from the cynical remark that civil society complaints no longer take the form of accusations of murder, but rather accusations of theft, Mr.Moreno Ocampo analysed ways of improving the relationship between civil society and governments. He arrived at the conclusion that solutions to the problem of corruption can't be lead exclusively by governments; they need to be generated or actively sustained by civil society. Mr. Moreno Ocampo concluded that democracy challenges governments in the same way that it challenges civil society.
The following discussion mainly centred on the mechanisms needed to make the OAS Convention an effective anti-corruption instrument. Mr.García agreed that among others, a consistent and strong monitoring system lead by civil society was of particular importance.
Chair/Moderator: Valeria Merino Dirani, Corporación Latinoamericana para el Desarrollo, Ecuador
As an introduction into the second session, Ms. Merino summarised the Panel Presentations by highlighting the OAS Convention as a "window of opportunities" and reiterated the role of civil society in building broad coalitions in order to fight corruption. Thereafter she introduced the methodology of the working groups. The idea was to build upon the reflections of the first session with a special focus on the experiences of the participants and their respective countries trying to envisage common regional strategies. Based on the thematic focus areas of the workshop the following working groups were formed each with a specific guiding question:
The participants of the Media working group identified different obstacles that prevent the media from becoming an efficient actor in the fight against corruption in Latin America. These include a lack of access to information, ignorance of possible channels through which information may be accessed, the lack of professional training for journalists and deficiencies in archiving systems. The participants agreed that consequently, new conditions would have to be created in order to overcome the obstacles: a change in attitude, the importance of diversifying and exploring new sources of information , building networks. Finally they identified the need to make use of existing channels that facilitate the exchange of information and experiences. In terms of common future strategies, the group agreed on strengthening regional alliances as well as creating a database on legislation related to access to information. The Centre of Investigative Journalism referred to their web site as a source of available information. Finally the need for a Code of Conduct for Media was assessed.
According to the participants of the Justice working group, the problem concerning the judiciary and its role in the fight against corruption in Latin America stems from deficiencies in the legal framework, including the inadequate requirements concerning the selection of judges. Furthermore, the participants mentioned the reluctance among the judges of their countries to deal with the problem and to commit themselves in the fight against it. Many of them were seen as ignoring the problem and unwilling to participate in anti-corruption initiatives. The participants expressed the need for a modernisation of the management and the organisational structures of the judicial system as well as for capacity-building among staff. This modernisation of the system should increase the efficiency and expediency of trials. It should also facilitate the co-ordination between the different institutions involved in anti-corruption work.
c) Civil Society:
The Civil Society working group was attended by government representatives and public officials, as well as civil society. Both sides seized the opportunity and talked about positive experiences of joint anti-corruption initiatives between government and civil society. Among these was the experience of the Argentinean NGO Poder Ciudadano, National Chapter of Transparency International, who on the basis of an integrity agreement between the different candidates for the presidential elections carried out a monitoring of the election financing. The representative of Poder Ciudadano offered the resulting database to NGOs in other countries. In Chile, the NGO Forja, National Chapter of TI, organised in collaboration with the Comptroller's Office a workshop for public officials on mechanisms aimed at increasing probity and transparency in public administration.
Government representatives and civil society members agreed on the fundamental role of civil society in fighting corruption, whether this takes the form of accompanying and monitoring governmental initiatives such as national anti-corruption-plans, or by channelling and shaping the social demand for reforms from below. The participants highlighted the great potential for civil society anti-corruption work at the municipal level. In order to fulfil this role, civil society needs to build up tools, capacity and credibility. Governments should support these efforts by encouraging people to organise themselves in formal and informal structures.
At the end of the second session the different working groups reported back on their discussion, findings and recommendations. There was no general discussion. The following recommendations were summarised in order to be fed back into the plenary session:
Partner Organizations and Contact Information:
Ms. Valeria Merino Diriani
Mr. Jorge Obando, Advisor in Justice for MDGD and RBLAC
and/or Ms. Pauline Tamesis, Programme Specialist
INTER-AMERICAN CONVENTION AGAINST CORRUPTION
THE MEMBER STATES OF THE ORGANIZATION OF AMERICAN STATES, CONVINCED that corruption undermines the legitimacy of public institutions and strikes at society, moral order and justice, as well as at the comprehensive development of peoples;
CONSIDERING that representative democracy, an essential condition for stability, peace and development of the region, requires, by its nature, the combating of every form of corruption in the performance of public functions, as well as acts of corruption specifically related to such performance;
PERSUADED that fighting corruption strengthens democratic institutions and prevents distortions in the economy, improprieties in public administration and damage to a society's moral fiber;
RECOGNIZING that corruption is often a tool used by organized crime for the accomplishment of its purposes;
CONVINCED of the importance of making people in the countries of the region aware of this problem and its gravity, and of the need to strengthen participation by civil society in preventing and fighting corruption;
RECOGNIZING that, in some cases, corruption has international dimensions, which requires coordinated action by States to fight it effectively;
CONVINCED of the need for prompt adoption of an international instrument to promote and facilitate international cooperation in fighting corruption and, especially, in taking appropriate action against persons who commit acts of corruption in the performance of public functions, or acts specifically related to such performance, as well as appropriate measures with respect to the proceeds of such acts;
DEEPLY CONCERNED by the steadily increasing links between corruption and the proceeds generated by illicit narcotics trafficking which undermine and threaten legitimate commercial and financial activities, and society, at all levels;
BEARING IN MIND the responsibility of States to hold corrupt persons accountable in order to combat corruption and to cooperate with one another for their efforts in this area to be effective; and
DETERMINED to make every effort to prevent, detect, punish and eradicate corruption in the performance of public functions and acts of corruption specifically related to such performance,
For the purposes of this Convention:
"Public function" means any temporary or permanent, paid or honorary activity, performed by a natural person in the name of the State or in the service of the State or its institutions, at any level of its hierarchy.
"Public official", "government official", or "public servant" means any official or employee of the State or its agencies, including those who have been selected, appointed, or elected to perform activities or functions in the name of the State or in the service of the State, at any level of its hierarchy.
"Property" means assets of any kind, whether movable or immovable, tangible or intangible, and any document or legal instrument demonstrating, purporting to demonstrate, or relating to ownership or other rights pertaining to such assets.
The purposes of this Convention are:
1. To promote and strengthen the development by each of the States Parties of the mechanisms needed to prevent, detect, punish and eradicate corruption; and
2. To promote, facilitate and regulate cooperation among the States Parties to ensure the effectiveness of measures and actions to prevent, detect, punish and eradicate corruption in the performance of public functions and acts of corruption specifically related to such performance.
For the purposes set forth in Article II of this Convention, the States Parties agree to consider the applicability of measures within their own institutional systems to create, maintain and strengthen:
1. Standards of conduct for the correct, honorable, and proper fulfillment of public functions. These standards shall be intended to prevent conflicts of interest and mandate the proper conservation and use of resources entrusted to government officials in the performance of their functions. These standards shall also establish measures and systems requiring government officials to report to appropriate authorities acts of corruption in the performance of public functions. Such measures should help preserve the public's confidence in the integrity of public servants and government processes.
2. Mechanisms to enforce these standards of conduct.
3. Instruction to government personnel to ensure proper understanding of their responsibilities and the ethical rules governing their activities.
4. Systems for registering the income, assets and liabilities of persons who perform public functions in certain posts as specified by law and, where appropriate, for making such registrations public.
5. Systems of government hiring and procurement of goods and services that assure the openness, equity and efficiency of such systems.
6. Government revenue collection and control systems that deter corruption.
7. Laws that deny favorable tax treatment for any individual or corporation for expenditures made in violation of the anticorruption laws of the States Parties.
8. Systems for protecting public servants and private citizens who, in good faith, report acts of corruption, including protection of their identities, in accordance with their Constitutions and the basic principles of their domestic legal systems.
9. Oversight bodies with a view to implementing modern mechanisms for preventing, detecting, punishing and eradicating corrupt acts.
10. Deterrents to the bribery of domestic and foreign government officials, such as mechanisms to ensure that publicly held companies and other types of associations maintain books and records which, in reasonable detail, accurately reflect the acquisition and disposition of assets, and have sufficient internal accounting controls to enable their officers to detect corrupt acts.
11. Mechanisms to encourage participation by civil society and nongovernmental organizations in efforts to prevent corruption.
12. The study of further preventive measures that take into account the relationship between equitable compensation and probity in public service.
This Convention is applicable provided that the alleged act of corruption has been committed or has effects in a State Party.
1. Each State Party shall adopt such measures as may be necessary to establish its jurisdiction over the offenses it has established in accordance with this Convention when the offense in question is committed in its territory.
2. Each State Party may adopt such measures as may be necessary to establish its jurisdiction over the offenses it has established in accordance with this Convention when the offense is committed by one of its nationals or by a person who habitually resides in its territory.
3. Each State Party shall adopt such measures as may be necessary to establish its jurisdiction over the offenses it has established in accordance with this Convention when the alleged criminal is present in its territory and it does not extradite such person to another country on the ground of the nationality of the alleged criminal.
4. This Convention does not preclude the application of any other rule of criminal jurisdiction established by a State Party under its domestic law.
Acts of Corruption
1. This Convention is applicable to the following acts of corruption:
a. The solicitation or acceptance, directly or indirectly, by a government official or a person who performs public functions, of any article of monetary value, or other benefit, such as a gift, favor, promise or advantage for himself or for another person or entity, in exchange for any act or omission in the performance of his public functions;
b. The offering or granting, directly or indirectly, to a government official or a person who performs public functions, of any article of monetary value, or other benefit, such as a gift, favor, promise or advantage for himself or for another person or entity, in exchange for any act or omission in the performance of his public functions;
c. Any act or omission in the discharge of his duties by a government official or a person who performs public functions for the purpose of illicitly obtaining benefits for himself or for a third party;
d. The fraudulent use or concealment of property derived from any of the acts referred to in this article; and
e. Participation as a principal, coprincipal, instigator, accomplice or accessory after the fact, or in any other manner, in the commission or attempted commission of, or in any collaboration or conspiracy to commit, any of the acts referred to in this article.
2. This Convention shall also be applicable by mutual agreement between or among two or more States Parties with respect to any other act of corruption not described herein.
The States Parties that have not yet done so shall adopt the necessary legislative or other measures to establish as criminal offenses under their domestic law the acts of corruption described in Article VI(1) and to facilitate cooperation among themselves pursuant to this Convention.
Subject to its Constitution and the fundamental principles of its legal system, each State Party shall prohibit and punish the offering or granting, directly or indirectly, by its nationals, persons having their habitual residence in its territory, and businesses domiciled there, to a government official of another State, of any article of monetary value, or other benefit, such as a gift, favor, promise or advantage, in connection with any economic or commercial transaction in exchange for any act or omission in the performance of that official's public functions.
Among those States Parties that have established transnational bribery as an offense, such offense shall be considered an act of corruption for the purposes of this Convention.
Any State Party that has not established transnational bribery as an offense shall, insofar as its laws permit, provide assistance and cooperation with respect to this offense as provided in this Convention.
Subject to its Constitution and the fundamental principles of its legal system, each State Party that has not yet done so shall take the necessary measures to establish under its laws as an offense a significant increase in the assets of a government official that he cannot reasonably explain in relation to his lawful earnings during the performance of his functions.
Among those States Parties that have established illicit enrichment as an offense, such offense shall be considered an act of corruption for the purposes of this Convention.
Any State Party that has not established illicit enrichment as an offense shall, insofar as its laws permit, provide assistance and cooperation with respect to this offense as provided in this Convention.
When a State Party adopts the legislation referred to in paragraph 1 of articles VIII and IX, it shall notify the Secretary General of the Organization of American States, who shall in turn notify the other States Parties. For the purposes of this Convention, the crimes of transnational bribery and illicit enrichment shall be considered acts of corruption for that State Party thirty days following the date of such notification.
1. In order to foster the development and harmonization of their domestic legislation and the attainment of the purposes of this Convention, the States Parties view as desirable, and undertake to consider, establishing as offenses under their laws the following acts:
a. The improper use by a government official or a person who performs public functions, for his own benefit or that of a third party, of any kind of classified or confidential information which that official or person who performs public functions has obtained because of, or in the performance of, his functions;
b. The improper use by a government official or a person who performs public functions, for his own benefit or that of a third party, of any kind of property belonging to the State or to any firm or institution in which the State has a proprietary interest, to which that official or person who performs public functions has access because of, or in the performance of, his functions;
c. Any act or omission by any person who, personally or through a third party, or acting as an intermediary, seeks to obtain a decision from a public authority whereby he illicitly obtains for himself or for another person any benefit or gain, whether or not such act or omission harms State property; and
d. The diversion by a government official, for purposes unrelated to those for which they were intended, for his own benefit or that of a third party, of any movable or immovable property, monies or securities belonging to the State, to an independent agency, or to an individual, that such official has received by virtue of his position for purposes of administration, custody or for other reasons.
2. Among those States Parties that have established these offenses, such offenses shall be considered acts of corruption for the purposes of this Convention.
3. Any State Party that has not established these offenses shall, insofar as its laws permit, provide assistance and cooperation with respect to these offenses as provided in this Convention.
Effect on State Property
For application of this Convention, it shall not be necessary that the acts of corruption harm State property.
1. This article shall apply to the offenses established by the States Parties in accordance with this Convention.
2. Each of the offenses to which this article applies shall be deemed to be included as an extraditable offense in any extradition treaty existing between or among the States Parties. The States Parties undertake to include such offenses as extraditable offenses in every extradition treaty to be concluded between or among them.
3. If a State Party that makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it does not have an extradition treaty, it may consider this Convention as the legal basis for extradition with respect to any offense to which this article applies.
4. States Parties that do not make extradition conditional on the existence of a treaty shall recognize offenses to which this article applies as extraditable offenses between themselves.
5. Extradition shall be subject to the conditions provided for by the law of the Requested State or by applicable extradition treaties, including the grounds on which the Requested State may refuse extradition.
6. If extradition for an offense to which this article applies is refused solely on the basis of the nationality of the person sought, or because the Requested State deems that it has jurisdiction over the offense, the Requested State shall submit the case to its competent authorities for the purpose of prosecution unless otherwise agreed with the Requesting State, and shall report the final outcome to the Requesting State in due course.
7. Subject to the provisions of its domestic law and its extradition treaties, the Requested State may, upon being satisfied that the circumstances so warrant and are urgent, and at the request of the Requesting State, take into custody a person whose extradition is sought and who is present in its territory, or take other appropriate measures to ensure his presence at extradition proceedings.
Assistance and Cooperation
1. In accordance with their domestic laws and applicable treaties, the States Parties shall afford one another the widest measure of mutual assistance by processing requests from authorities that, in conformity with their domestic laws, have the power to investigate or prosecute the acts of corruption described in this Convention, to obtain evidence and take other necessary action to facilitate legal proceedings and measures regarding the investigation or prosecution of acts of corruption.
2. The States Parties shall also provide each other with the widest measure of mutual technical cooperation on the most effective ways and means of preventing, detecting, investigating and punishing acts of corruption. To that end, they shall foster exchanges of experiences by way of agreements and meetings between competent bodies and institutions, and shall pay special attention to methods and procedures of citizen participation in the fight against corruption.
Measures Regarding Property
1. In accordance with their applicable domestic laws and relevant treaties or other agreements that may be in force between or among them, the States Parties shall provide each other the broadest possible measure of assistance in the identification, tracing, freezing, seizure and forfeiture of property or proceeds obtained, derived from or used in the commission of offenses established in accordance with this Convention.
2. A State Party that enforces its own or another State Party's forfeiture judgment against property or proceeds described in paragraph 1 of this article shall dispose of the property or proceeds in accordance with its laws. To the extent permitted by a State Party's laws and upon such terms as it deems appropriate, it may transfer all or part of such property or proceeds to another State Party that assisted in the underlying investigation or proceedings.
1. The Requested State shall not invoke bank secrecy as a basis for refusal to provide the assistance sought by the Requesting State. The Requested State shall apply this article in accordance with its domestic law, its procedural provisions, or bilateral or multilateral agreements with the Requesting State.
2. The Requesting State shall be obligated not to use any information received that is protected by bank secrecy for any purpose other than the proceeding for which that information was requested, unless authorized by the Requested State.
Nature of the Act
1. For the purposes of international assistance and cooperation provided under this Convention, each State Party may designate a central authority or may rely upon such central authorities as are provided for in any relevant treaties or other agreements.
2. The central authorities shall be responsible for making and receiving the requests for assistance and cooperation referred to in this Convention. 3. The central authorities shall communicate with each other directly for the purposes of this Convention.
Subject to the constitutional principles and the domestic laws of each State and existing treaties between the States Parties, the fact that the alleged act of corruption was committed before this Convention entered into force shall not preclude procedural cooperation in criminal matters between the States Parties. This provision shall in no case affect the principle of non-retroactivity in criminal law, nor shall application of this provision interrupt existing statutes of limitations relating to crimes committed prior to the date of the entry into force of this Convention.
Other Agreements or Practices
No provision of this Convention shall be construed as preventing the States Parties from engaging in mutual cooperation within the framework of other international agreements, bilateral or multilateral, currently in force or concluded in the future, or pursuant to any other applicable arrangement or practice.
This Convention is open for signature by the Member States of the Organization of American States.
This Convention shall remain open for accession by any other State. The instruments of accession shall be deposited with the General Secretariat of the Organization of American States.
The States Parties may, at the time of adoption, signature, ratification, or accession, make reservations to this Convention, provided that each reservation concerns one or more specific provisions and is not incompatible with the object and purpose of the Convention.
Entry Into Force
This Convention shall enter into force on the thirtieth day following the date of deposit of the second instrument of ratification. For each State ratifying or acceding to the Convention after the deposit of the second instrument of ratification, the Convention shall enter into force on the thirtieth day after deposit by such State of its instrument of ratification or accession.
This Convention shall remain in force indefinitely, but any of the States Parties may denounce it. The instrument of denunciation shall be deposited with the General Secretariat of the Organization of American States. One year from the date of deposit of the instrument of denunciation, the Convention shall cease to be in force for the denouncing State, but shall remain in force for the other States Parties.
Any State Party may submit for the consideration of other States Parties meeting at a General Assembly of the Organization of American States draft additional protocols to this Convention to contribute to the attainment of the purposes set forth in Article II thereof.
Each additional protocol shall establish the terms for its entry into force and shall apply only to those States that become Parties to it.
Deposit of Original Instrument
The original instrument of this Convention, the English, French, Portuguese, and Spanish texts of which are equally authentic, shall be deposited with the General Secretariat of the Organization of American States, which shall forward an authenticated copy of its text to the Secretariat of the United Nations for registration and publication in accordance with Article 102 of the United Nations Charter. The General Secretariat of the organization of American States shall notify its Member States and the States that have acceded to the Convention of signatures, of the deposit of instruments of ratification, accession, or denunciation, and of reservations, if any.