UNCAC covers five main areas that includes both mandatory and non-mandatory provisions: • Preventive measures, • Criminalization and law enforcement, •
International cooperation, •
Asset recovery, and • Technical assistance and information exchange.
General provisions (Chapter I, Articles 1–4) The opening Articles of UNCAC include a statement of purpose (Article1), which covers both the promotion of integrity and accountability within each country and the support of international cooperation and technical assistance between States Parties. They also include definitions of critical terms used in the instrument. Some of these are similar to those used in other instruments, and in particular the
United Nations Convention against Transnational Organized Crime (UNTOC), but those defining "public official", "foreign public official", and "official of a public international organization" are new and are important for determining the scope of application of UNCAC in these areas. UNCAC does not provide a definition of corruption. In accordance with Article 2 of the
UN Charter, Article 4 of UNCAC provides for the protection of the
national sovereignty of the States Parties.,
Preventive measures (Chapter II, Articles 5–14) UNCAC recognizes the importance of prevention in both the public and private sectors. Chapter II includes preventive policies, such as the establishment of anti-corruption bodies and enhanced transparency in the financing of election campaigns and political parties.
Anti-corruption bodies should implement anti-corruption policies, disseminate knowledge and must be independent, adequately resourced and have properly trained staff. Countries that sign the convention must assure safeguards their public services are subject to safeguards that promote efficiency, transparency and recruitment based on merit. Once recruited, public servants should be bound by codes of conduct, requirements for
financial and other disclosures, and appropriate disciplinary measures. Transparency and accountability in the management of public finances must also be promoted, and specific requirements are established for the prevention of corruption in the particularly critical areas of the public sector, such as the judiciary and public procurement. Preventing corruption also requires an effort from all members of society at large. For these reasons, UNCAC calls on countries to promote actively the involvement of civil society, and to raise public awareness of corruption and what can be done about it. The requirements made for the public sector also apply to the private sector – it too is expected to adopt transparent procedures and codes of conduct.
Criminalization and law enforcement (Chapter III, Articles 15–44) Chapter III calls for parties to establish or maintain a series of specific criminal offences including not only long-established crimes such as bribery and embezzlement, but also conducts not previously criminalized in many states, such as trading in influence and other abuses of official functions. The broad range of ways in which corruption has manifested itself in different countries and the novelty of some of the offences pose serious legislative and constitutional challenges, a fact reflected in the decision of the Ad Hoc Committee to make some of the provisions either optional ("...shall consider adopting...") or subject to domestic constitutional or other fundamental requirements ("...subject to its constitution and the fundamental principles of its legal system..."). Specific acts that parties must criminalize include • active bribery of a national, international or foreign public officials • passive bribery of a national public official • embezzlement of public funds Other mandatory crimes include obstruction of justice, and the concealment, conversion or transfer of criminal proceeds (money laundering). Sanctions extend to those who participate in and may extend to those who attempt to commit corruption offences. UNCAC thus goes beyond previous instruments of this kind that request parties to criminalize only basic forms of corruption. Parties are encouraged – but not required – to criminalize,
inter alia, passive bribery of foreign and international public officials, trading in influence, abuse of function,
illicit enrichment, private sector bribery and embezzlement, and the concealment of illicit assets. Furthermore, parties are required to simplify rules pertaining to evidence of corrupt behavior by, inter alia, ensuring that obstacles that may arise from the application of
bank secrecy laws are overcome. This is especially important, as corrupt acts are frequently very difficult to prove in court. Particularly important is also the introduction of the liability of legal persons. In the area of law enforcement, UNCAC calls for better cooperation between national and international bodies and civil society. There is a provision for the protection of witnesses, victims, expert witnesses and whistle-blowers to ensure that law enforcement is truly effective. Russia ratified the convention in 2006, but failed to include Article 20, which criminalizes "illicit enrichment". In March 2013, the
Communist Party of the Russian Federation submitted a petition with 115,000 signatures to the
State Duma in favour of doing so. In 2015, however, no such law was yet in effect in Russia.
International cooperation (Chapter IV, Articles 43–49) Under Chapter IV of UNCAC, States Parties are obliged to assist one another in every aspect of the fight against corruption, including prevention, investigation, and prosecution of offenders. Cooperation takes the form of extradition, mutual legal assistance, transfer of sentences persons and criminal proceedings, and law enforcement cooperation. Cooperation in civil and administrative matters is also encouraged. Based on Chapter IV, UNCAC itself can be used as a basis for extradition, mutual legal assistance and law enforcement concerning corruption-related offences. "Dual criminality", which is a requirement that the relevant offence shall be criminalized in both the requesting and requested country, is considered fulfilled irrespective of whether the same terminology or category of offense is used in both jurisdictions. In case of a request for assistance involving non-coercive measures, States Parties are required to provide assistance even when dual criminality is absent subject only to the basic concepts of their legal systems. Chapter IV also contains other innovative provisions designed to facilitate international cooperation. For example, States Parties that use UNCAC as a basis for extradition shall not consider corruption-related offences as political ones; assistance can also be provided in relation to offences for which legal persons can be held responsible; and bank secrecy cannot be cited as a ground to refuse a request for assistance. In order to ensure speedy and efficient cooperation, each State Party is required to designate a central authority responsible for receiving MLA requests. Overall, Chapter IV provides a broad and flexible platform for international cooperation. However, its provisions do not exhaust all international cooperation issues covered by UNCAC, thus the purposes of UNCAC and provisions of other chapters also need to be taken into consideration.
Asset recovery (Chapter V, Articles 51–59) The agreement on asset recovery is considered a major breakthrough and many observers claim that it is one of the reasons why so many developing countries have signed UNCAC. Asset recovery is indeed a very important issue for many developing countries where high-level corruption has plundered the national wealth. Reaching an agreement on this Chapter involved intensive negotiations, as the legitimate interests of countries wishing to recover illicit assets had to be reconciled with the legal and procedural safeguards of the countries from which assistance will be sought. Generally, in the course of the negotiations, countries seeking to recover assets sought to establish presumptions that would make clear their ownership of the assets and give priority for return over other means of disposal. Countries from which the return was likely to be sought, on the other hand, had concerns about the language that might have compromised basic human rights and procedural protections associated with criminal liability and the freezing, seizure, forfeiture and return of such assets. Chapter V of UNCAC establishes asset recovery as a "fundamental principle" of the convention. The provisions on asset recovery lay a framework, in both civil and criminal law, for tracing, freezing, forfeiting and returning funds obtained through corrupt activities. The requesting state will in most cases receive the recovered funds as long as it can prove ownership. In some cases, the funds may be returned directly to individual victims. If no other arrangement is in place, States Parties may use the Convention itself as a legal basis. Article 54(1)(a) of UNCAC provides that: "Each State Party (shall)... take such measures as may be necessary to permit its competent authorities to give effect to an order of confiscation issued by a court of another state party" Indeed, Article 54(2)(a) of UNCAC also provides for the provisional freezing or seizing of property where there are sufficient grounds for taking such actions in advance of a formal request being received. Recognizing that recovering assets once transferred and concealed is an exceedingly costly, complex and all-too-often unsuccessful process, this Chapter also incorporates elements intended to prevent illicit transfers and generate records that can be used where illicit transfers eventually have to be traced, frozen, seized and confiscated (Article 52). The identification of experts who can assist developing countries in this process is also included as a form of technical assistance (Article 60(5)).
Technical assistance and information exchange (Chapter VI, Articles 60–62) Chapter VI of UNCAC is dedicated to technical assistance, meaning support offered to developing and transition countries in the implementation of UNCAC. The provisions cover training, material and human resources, research, and information sharing. UNCAC also calls for cooperation through international and regional organizations (many of which already have established anti-corruption programmes), research efforts, and the contribution of financial resources both directly to developing countries and countries with economies in transition, and to the
UNODC.
Mechanisms for implementation (Chapter VII, Articles 63–64) Chapter VII deals with international implementation through the CoSP and the UN Secretariat.
Final provisions (Chapter VIII, Articles 65–71) The final provisions are similar to those found in other UN treaties. Key provisions ensure that UNCAC requirements are to be interpreted as minimum standards, which States Parties are free to exceed with measures "more strict or severe" than those set out in specific provisions; and the two Articles governing signature, ratification and the coming into force of the convention. ==Conference of the States Parties==