Introduction. The thesis that corruption is a negative phenomenon that permeates all spheres of both the public and public sectors, not just in two, but in a significant number of states around the world, does not require proof. The current existence of the analyzed phenomenon is historically determined and quite natural.
For millennia, corrupt practices have either been encouraged or banned. It is clear that this was done in different ways, by different authorized entities and with the use of tools that met the needs of the time. However, it should be understood that corruption is, first and foremost, a conscious choice of everyone, whether active or passive.
Currently, there are a number of fundamental international acts – specialized and ancillary, which relate to certain aspects of international legal regulation of the fight against corruption in the world. The initiators of their adoption (allied recognition of the problem and equal, cooperative confrontation by a group of countries) are the UN, EU, CIS, OECD – ie global and regional international organizations, as well as international organizations formed under their auspices.
Accordingly, in the framework of this work we will try to analyze international anti-corruption standards in retrospect.
◈ Review of recent research
International standards are the basis of national legislation, the key to effectively counteracting a phenomenon that is recognized on the world stage as negative and detrimental to transnational interests. In the field under study, many scientists have turned their research to our stated issues, in particular, O. Vanovskaya, V. Deineka, O. Zadorozhniy, O. Zinchuk, M. Karmalita, S. Klimova, T. Kovaleva, S. Petrashko , S. Rogulsky, O. Rozum, O. Sinchuk, I. Shavlo, N. Shkurenko, S. Yakimova, and others. However, the results of such studies were relevant or related to our chosen topic.
◈ Presentation of the main provisions
In the international arena, the active condemnation of all forms of corruption, including bribery, began in the second half of the twentieth century. One of the first documents in this area was UN General Assembly Resolution 3514 (XXX) “Measures against corruption practiced by transnational and other corporations, their intermediaries and other parties involved“, adopted on 15 December 1975. The document calls on the governments of all countries to take all necessary measures at the national level to prevent and combat corruption that they deem appropriate, including legislation. This need was due to the transition to a new international economic order, where the activities of transnational corporations were closely monitored.
This document proposed the introduction of a system of monitoring the activities of corporations at the national level, as well as the collection, processing and interstate exchange of information on the state of corruption in countries. The analytical center of such information was the United Nations Center for Transnational Corporations.
On May 24, 1989, the United Nations Economic and Social Council invited the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders and its preparatory meetings to explore ways and means to promote compliance with the Guidelines for the Effective Implementation of the Code of Conduct. It was proposed to apply the provisions of this act to all law enforcement officials, regardless of their departmental affiliation, with the mandatory development of specialized national codes that will contain the rules of conduct of such persons.
Moreover, the International Code of Conduct for Public Officials, as an international document of the United Nations, was adopted on July 23, 1996 and declared a very important rule – public office, a position endowed with trust, which provides an obligation to act in the interests of the state. Such persons must be attentive, fair and impartial in the performance of their functions and, in particular, in their relations with the public. They shall never grant any undue advantage to any group of persons or individual, shall discriminate against any group of persons or individual, or otherwise abuse their authority or authority.
In 1990, the Eighth United Nations Congress, in its Resolution on Corruption in Public Administration, noted that the problems of corruption in public administration are pervasive and have a devastating impact around the world. The international community is concerned about transnational corruption and proposes to add criminal liability for bribery abroad to national law.
At the same time, “Practical measures to combat corruption“ were adopted, where corruption is defined as “violations of ethical (moral), disciplinary, administrative, criminal nature, manifested in the illegal use of their official position by the subject of corruption.”
Chapter I “Criminal Law” noted that the term “corruption” is rather general in nature and is not an exact legal term. “The most obvious manifestation of corruption is the receipt of a bribe by one or another person.” Manifestations of corruption can be other acts that are not covered by the concept of bribery. Based on the further content of practical measures to combat corruption, it can be concluded that acts of corruption may also be recognized as “theft, embezzlement and misappropriation of state property for private use”, “abuse of office for the purpose of illegally obtaining certain benefits, ie any planned , anticipated, necessary or successful receipt of benefits as a result of unjustified use of official status and conflict of interest – a conflict between official duties and personal interests.
The document separately identified the most important tasks for overcoming corruption. According to it, governments should: analyze the adequacy of their criminal law, including procedural rules, in order to respond to all forms of corruption; develop administrative and regulatory mechanisms to prevent corruption; establish procedures for identifying, investigating and convicting corrupt officials; develop legal provisions for the confiscation of funds and property acquired as a result of corruption; take appropriate measures against enterprises involved in corruption.
By the way, another UN document (Reference Document on the International Fight against Corruption) interprets the concept of corruption as “abuse of state power for personal gain.”
It should be noted that the Committee of Ministers of the Council of Europe adopted the Program of Action against Corruption in November 1996, and on 16 December the General Assembly solemnly proclaimed the United Nations Declaration on Combating Corruption and Bribery in International Commercial Transactions.
This international document contains the necessary conditions for achieving economic and social development, environmental protection, strengthening the social responsibility of private and public corporations, as well as combating and preventing corruption and bribery in all countries.
◉ There are 12 such conditions, in particular, it was considered necessary for example:
1) to ensure the effective application of existing laws and to promote the adoption of laws to this end where they do not exist;
2) recognize the giving of bribes to foreign state officials as a criminal offense, the objective side of which are such actions as:
a) the offering, promise or transfer of any payments, gifts or other benefits, directly or indirectly, by any private or public corporation, including a transnational corporation, an individual of any State to any public official or elected representative another country as improper remuneration for the performance or withholding of performance by that official or representative of his duties in connection with a particular international commercial transaction;
(b) the claim, acceptance or receipt, directly or indirectly, by any official or elected representative of any State of payments, gifts or other benefits from any private or public corporation, including a transnational corporation, or an individual from another countries as improper remuneration for the performance or refrain from performance by that official or representative of his duties in connection with a particular international commercial transaction;
3) develop or apply standards and methods of accounting to prevent corruption, bribery and related illegal actions and to combat them, and others.
An attempt was made to differentiate between such terms as “corruption”, “bribery”, “illegal profit”, “illegal enrichment”. However, the American Convention against Corruption, adopted at the third plenary session on March 29, 1996, differs more precisely from the previous document. In particular, Article 6 of this Convention provides that acts of corruption are:
a) an attempt to obtain or receive, directly or indirectly, by a government official or a person performing public functions, any items of monetary value, as well as other benefits, such as a gift, service, promise or advantage for himself or another person or organization in exchange for any action or omission in the exercise of his public functions;
(b) offering or providing, directly or indirectly, to a government official or person performing public functions, items of monetary value, as well as other benefits, such as a gift, service, promise, or benefit to oneself or another person or organization, in exchange for any action or inaction in the exercise of his public functions;
c) any act or omission in the performance of his duties by a government official or a person performing public functions, for the purpose of illegally making a profit for himself or another party;
d) fraudulent use or concealment of property obtained as a result of the commission of one of the acts referred to in this Article;
e) participation as a principal executor, accomplice, accomplice, accomplice or accomplice after the commission, or in any other way, in the commission or attempt to commit, as well as in the aid or conspiracy to commit one of the acts referred to in this articles.
In turn, the United Nations Framework Convention against Organized Crime of 21.07.1997 points out that corruption is one of the three main means (the other two are violence and intimidation), which enable organized crime leaders to make a profit, control territories, foreign and domestic markets, continue their criminal activities and enter the legal economy.
According to the Multidisciplinary Group on Corruption, the draft Convention on Corruption provided for conduct such as giving or receiving bribes, involving persons with powers in the public or private sector, and violating the obligations arising from their status as civil servants, a private employee or an independent agent, and is intended to obtain any illicit benefits for oneself or others.
Subsequently, in November 1997 and May 1998, resolutions were adopted, which stipulated the conclusion of a partial and extended agreement on the establishment of the Group of States against Corruption (GRECO), which will focus on empowering its members in the fight against corruption by monitoring in fulfilling their obligations in this area.
The Statute of the Group of States against Corruption (GRECO) was adopted on 5 May 1998 to improve the competence of its members in the fight against corruption to take action through a dynamic process of joint evaluation of implementation methods and equal impact in accordance with their commitments. To this end, the Group monitors compliance with the Anti-Corruption Guidelines adopted by the Committee of Ministers of the Council of Europe on 6 November 1997 and the implementation of international legislation adopted under the Anti-Corruption Program of Action.
Recalling the twenty principles of the fight against corruption, it should be clarified that the Committee of Ministers of the Council of Europe in its 101st session emphasized that the fight against corruption should be multidisciplinary and cooperative.
The relevant Resolution №R(97)24 sets out 20 basic principles for how such activities should be implemented at the national level, including:
1) take effective measures to prevent corruption and, in this regard, to raise public understanding and promote ethical behavior;
2) to guarantee the recognition of national and international corruption as a criminal act;
3) ensure that those responsible for preventing, investigating, prosecuting and judging corruption cases are independent and autonomous;
4) provide appropriate measures for confiscation and deprivation of income as a result of corruption;
5) provide appropriate measures to prevent pressure on lawyers involved in exposing corruption and others.
GRECO monitors all its Member States on an equal footing through peer review and pressure processes from other Member States. All States, without exception, participate in the evaluation and implementation process. The Group’s monitoring process consists of:
1) horizontal evaluation (all states are evaluated during evaluation rounds), culminating in the provision of recommendations on necessary legislative, institutional and practical reforms;
2) implementation procedures aimed at assessing the measures taken by States to implement the recommendations.
Consider also the Criminal Convention against Corruption and the Civil Convention against Corruption, which were adopted by the Council of Europe in 1999.
Due to the fact that the Program of Action against Corruption encourages the coordinated recognition of crimes related to corruption as criminal, the strengthening of cooperation in the prosecution of persons suspected of committing such crimes, as well as the creation of an effective mechanism for further action on equal terms On this basis, there was a need to conclude a criminal convention as soon as possible.
Chapter II sets out the measures to be taken at the national level, in particular the establishment of criminal liability for:
1) giving a bribe to national public officials or receiving it by the persons concerned or a member of any national representative body exercising legislative or executive powers;
2) bribery by an official of any other state or a member of any representative body that performs legislative or executive functions in any other state;
3) bribery in the private sector, ie a person holding managerial positions in private enterprises or working for them in any capacity and vice versa – the responsibility for its receipt by these persons;
4) abuse of influence, laundering of proceeds from corruption-related crimes, issuance or use of an account or any other accounting document or record containing inaccurate or incomplete information, illegal non-issuance of a payment record, etc.
Moreover, complicity, immunity, jurisdiction and the need to introduce liability of legal entities for these crimes are determined separately. The Parties shall monitor the implementation of this Convention by the Group of States against Corruption.
Noting the Civil Convention against Corruption, it should be clarified that the need for its adoption was due to the fact that civil remedies for damage caused by corruption were not directly enshrined in international instruments. For the purposes of this Convention, “corruption” means the direct or indirect solicitation, offering, giving or receiving of a bribe or any other improper benefit or possibility thereof, which violates the proper performance of any obligation by the person receiving the bribe, improper benefit or the opportunity to have such a benefit, or the behavior of such a person. The document contains a number of recommendations necessary for adoption at the national level for the legal protection of persons harmed by corruption. As in the previously analyzed document, the Group of States against Corruption monitors the implementation of this Convention by the Parties.
In view of the above, many scholars consider the United Nations Convention against Corruption of 31 October 2003 to be the first global document in the field of study, which aims to promote and strengthen measures to prevent and combat corruption more effectively and effectively, as it laid the foundations of a universal anti-corruption system. This Convention is considered to have significant international impact, as it is supported by both international organizations and specialized agencies of the UN system, such as the World Bank, the International Monetary Fund, and the governments of most countries. The Convention is organically based on two key principles: measures to prevent and combat corruption. The analyzed Convention establishes obligations to criminalize certain acts, to take preventive measures in the public and private sectors, to establish international cooperation in investigations and law enforcement, to take technical support measures, and also contains provisions on the return of assets. Today, this document is the so-called basis for bringing the national legislation of each member state in line with generally accepted methods and measures to prevent and combat corruption.
At the same time, in the EU, an important step in the fight against corruption was the publication by the European Commission of a Communication of 28 May 2003 on the European Union’s comprehensive anti-corruption policy. It defined the basic principles of the fight against corruption in the EU, outlined the principles of improving the fight against corruption in the new member states, candidate countries and third countries. In addition, the Council of the European Union issued the Framework Decision “On Combating Corruption in the Private Sector“ №568 of 22 July 2003, which defined the concepts of “active” and “passive” corruption, and imposed sanctions for such crimes.
Another platform for cooperation in preventing and combating corruption is the Organization for Economic and Social Development (OECD) and, in particular, its Anti-Corruption Network for Eastern Europe and Central Asia. As part of the OECD’s work in 2003, representatives of the government delegations of Armenia, Azerbaijan, Georgia, the Russian Federation, Tajikistan and Ukraine approved the Istanbul OECD Anti-Corruption Action Plan for Eastern Europe and Central Asia. The main principles of the Istanbul Action Plan are the development of an effective and transparent civil service system, strengthening the fight against bribery and ensuring honesty in business, and supporting the active participation of the public in reforms.
Finally, we should mention such an international document as the Model Law “Fundamentals of Anti-Corruption Policy Legislation“ adopted at the twenty-second plenary session of the Interparliamentary Assembly of the CIS member states by Resolution №22-15 of November 15, 2003. In the sense of this act, corruption is bribery (receipt or giving of a bribe), any illegal use by a person of his public status, combined with obtaining benefits (property, services or benefits and / or benefits, including non-material) as for himself , and for their loved ones contrary to the legitimate interests of society and the state, or the illegal provision of such benefits to the said person.
It is clear that these acts are only part of the general body of the international legal framework in the field of combating and preventing corruption. In addition to these, the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism of 16 May 2005 and the UN Economic and Social Council Resolution of 27 July 2006 on Bangalore Principles for the Conduct of Judges are important №2006/23, Recommendation CM / Res (2010) 12 of the Committee of Ministers of the Council of Europe to member states on judges: independence, efficiency and responsibilities, adopted by the Committee of Ministers of the Council of Europe on 17 November 2010, Parliamentary Assembly resolution №1943 (2013) Council of Europe “Corruption as a Threat to the Rule of Law“, and many others.
All the above makes it possible to conclude that in the international arena active condemnation of all types of corruption, including bribery, began in the second half of the twentieth century and at the beginning of international legal mechanisms to combat corruption, its existence was recognized only in transnational business. At the same time, the world is discussing corruption in public administration.
In the global sense, corruption as a transnational socio-legal phenomenon is:
- first, the type of behavior of persons with a special status (in particular in the field of individual decisions that have legal consequences), in which the interests of such a person occupy a privileged position over public or state;
- secondly, it is a desecrated ideology of society, which allows, contrary to the law, to commit, allow or encourage unethical and illegal behavior of authorized persons.
In a generalized sense, it is an all-encompassing phenomenon, which includes manifestations of any abuse of a special status on the one hand, and on the other – motivation and active action to implement them by other stakeholders. That is, it is a two-way relationship, a symbiosis of needs and benefits. The highest manifestation of corruption is bribery, which in any case should be criminally punishable, along with abuse of influence, money laundering from corruption-related crimes and financial fraud.
Author: Andrey Prikhodko
lawyer, doctor of law
Managing Partner of «Prikhodko & Partners» Law Firm