UNCAC was opened for signature on 9 December 2003 and came into force on 14 December 2005 after ratification by member states. Now 9 December is marked annually as international anti-corruption day. The purposes of the Convention, stated at Article 1, promotes and strengthens measures to prevent and combat corruption more efficiently and effectively, facilitate and support international cooperation and technical assistance in the prevention of and fight against corruption, including in asset recovery, and promote integrity, accountability and proper management of public affairs and public property. The Convention covers five key areas: preventive measures, criminalisation and law enforcement, international cooperation, asset recovery, as well as a chapter on technical assistance and information exchange.
In the area of asset recovery, UNCAC provides a framework for the prevention, detection, tracing, seizure, freezing and confiscation as well as the return and disposal of the proceeds of corruption. Issues related to extradition and transfer of economic offenders and the recovery of stolen assets in the context of UNCAC are further discussed below.
Article 51 states that the return of assets is a “fundamental principle” of the Convention and requires Parties to give each other “the widest measure of cooperation and assistance in this regard”. In particular, Parties must establish mechanisms including both civil and criminal recovery procedures, whereby assets can be traced, frozen, seized, forfeited and returned.
Each Party must, consistent with its legal principles, adopt measures to establish the liability of legal persons for participation in Convention offences and must take, “to the greatest extent possible within its domestic legal system”, measures to facilitate freezing, seizure and confiscation of the proceeds of Convention offences. Parties are required to cooperate with other Parties in areas such as the extradition of offenders, mutual legal assistance and less formal methods of cooperation in the course of investigations and other law-enforcement activities.
Under review mechanism, states parties to be reviewed in each year of the four-year cycle are selected by lot, and the country review, reports composed of self-assessments and peer reviews are published on the UN website.
The UN Convention against Corruption and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the related OECD Recommendation for Further Combating Bribery of Foreign Public Officials, and provides a short overview of the anti-corruption laws in a number of different countries around the world. Under article 16, paragraph 1, of the UNCAC, States must establish as a criminal offence active bribery of foreign public officials and officials of public international organizations. Unfortunately, Bangladesh is not a party to OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
Article 17 of the UNCAC requires the establishment of the offence of embezzlement, misappropriation or other diversion of property by a public official. Domestic legislation is quite compatible with the UNCAC standard. Article 23 the UNCAC requires that States parties establish the four offences related to money-laundering: conversion or transfer of proceeds of crime, concealment or disguise of proceeds of crime, acquisition, possession or use of proceeds of crime, and participation in, association with or conspiracy to commit, attempts to commit and aiding, abetting, facilitating and counseling the commission of any of the foregoing offences.
States parties also required to establish or maintain an appropriate balance between any immunities or privileges accorded to their public officials and the possibility of effectively investigating, prosecuting and adjudicating UNCAC offences (Article 30, para. 2). They should also consider establishing mechanisms through which a public official accused of an UNCAC offence may be removed, suspended or reassigned (Article 30, para. 6). Moreover, States Parties should consider establishing procedures for the disqualification of persons convicted of an UNCAC offence from public office (Article 30, para. 7).
The UNCAC calls for the protection of witnesses, experts, victims and reporting persons. While the arrangement for protection of witnesses, experts, victims is mandatory, that of reporting persons is non-mandatory. States parties are mandated by the
UNCAC to take appropriate measures against potential retaliation or intimidation of witnesses, victims and experts. States are also encouraged to provide procedural and evidentiary rules for strengthening these protective measures as well as extending similar protections to reporting persons.
Article 53 of the UNCAC focuses on States parties having a legal regime allowing another State party to initiate for asset recovery or to intervene or appear in domestic proceedings to enforce their claim for compensation. Under Article 54, paragraph 1 of the UNCAC, States parties are required to take necessary measures to allow their competent authorities to give effect to an order of confiscation issued by a court of another State party and to order the confiscation of such property of foreign origin by adjudication of money-laundering or other offences within their jurisdiction or by other procedures under domestic law.
In accordance with article 58 of the UNCAC, States parties must cooperate with one another for the purpose of preventing and combating the transfer of proceeds of offences established in accordance with the Convention and of promoting ways and means of recovering such proceeds. To that end, article 58 requires States parties to consider the establishment of an FIU to serve as a national centre for the collection, analysis and dissemination of reports of suspicious financial transactions to the competent authorities.
All state Parties to the Convention are required to criminalise the bribery of national and foreign public officials, as well as officials of public international organisations, the embezzlement, misappropriation or other diversion of either public or private funds by a public official to whom the funds have been entrusted, the laundering of proceeds of crime, and obstruction of justice. In addition, Parties must consider criminalising trading in influence, the abuse of functions by a public official, illicit enrichment and private sector bribery.
The process reviews the key elements of the offence in each jurisdiction, looks at whether the law applies extraterritorially, examines how gifts and entertainment and facilitation payments are treated, and identifies what the penalties are, using questions such as the definition of bribery, public official and foreign officials, bribery in private sector, exemption for facilitation payment, treatment of intermediary bribes, and the penalties for such crimes.
Bangladesh has many challenges to implement the UNCAC and its action plan for compliance has not been fully and properly followed. All the national laws have given too much immunity to the government high up and officials. Many laws should be revised particularly the Civil Service Act and existing laws be enforced properly. All the citizens are not treated equally. The corruption itself is big problem for to eradication of corruption.
The writer is the CEO of Bangla Chemical
