Abstract
In this chapter we describe how the scope of bribery-like provisions has been extended in different countries and in different ways: they have extended their coverage to authorities that used to be excluded from it; the regulation of campaign finance and political candidates’ behaviour also seems to be on the rise; the implementation of concepts that used to be controversial in some constitutional systems, such as trading in influence, seems to be the norm today. From a legal point of view, particular attention will be paid to these three different aspects: the bribery of members of parliament or municipal councils; the bribery of political candidates and the expansion of political finance laws; the introduction of trading in influence and conflict of interest regulations in national legal systems.
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Notes
- 1.
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Akerstrom (note 4), p. 4.
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See, for example, UNODC, Conference of the States Parties to the UNCAC, Implementation of chapter III (Criminalization and law enforcement) of the United Nations Convention Against Corruption (review of articles 15-29), 2014, p. 9 (available at https://www.unodc.org/documents/treaties/UNCAC/WorkingGroups/ImplementationReviewGroup/2-6June2014/V1401640e.pdf, last accessed 3 November 2016), regarding challenges to the implementation of the 2003 United Nations Convention against Corruption (UNCAC).
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- 16.
- 17.
CoE Criminal Law Convention on Corruption, Art. 4 – Bribery of members of domestic public assemblies: Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the conduct referred to in Art. 2 and 3, when involving any person who is a member of any domestic public assembly exercising legislative or administrative powers. See also UNCAC 2003, Art. 2(a): ‘“Public official” shall mean: (i) any person holding a legislative, executive, administrative or judicial office of a State Party, whether appointed or elected, whether permanent or temporary, whether paid or unpaid, irrespective of that person’s seniority; (ii) any other person who performs a public function, including for a public agency or public enterprise, or provides a public service, as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party; (iii) any other person defined as a “public official” in the domestic law of a State Party. However, for the purpose of some specific measures contained in chapter II of this Convention, “public official” may mean any person who performs a public function or provides a public service as defined in the domestic law of the State Party and as applied in the pertinent area of law of that State Party.’
- 18.
D. Dölling, General Report, Revue Internationale de Droit Pénal 2003/1 v. 74, p. 38.
- 19.
UNODC (note 14), p. 8: ‘The most common challenges in the implementation of article 15 related to the application of the bribery offence to benefits extended to third persons and entities (30 per cent of cases), the scope of the undue advantage, in particular as regards non-material benefits and “facilitation payments” (20 per cent of cases), the scope of public officials covered by the bribery offence, in particular the application to members of Parliament (19 per cent of cases), the coverage of indirect bribery in accordance with article 15 (15 per cent of cases), the coverage of the promise, in addition to the offer or exchange, of an undue advantage (9 per cent of cases) and applicable distinctions between acts within and outside the scope of official duties of public officials (7 per cent of cases).’
- 20.
M.T. Funk, Germany’s Foreign Anti-corruption Efforts: Second-Tier No More, Zeitschrift für Deutsches und Amerikanisches Recht, 1/2014, p. 24.
- 21.
S. Wolf, Political Corruption as a Regulatory Problem in Germany, German Law Journal, 14 (2013), p. 1628.
- 22.
UNODC, Review of implementation of the United Nations Convention against Corruption, Vienna, 7-9 September 2011 (available at: https://www.unodc.org/documents/treaties/UNCAC/WorkingGroups/ImplementationReviewGroup/7-9September2011/V1183525e.pdf, last accessed 3 November 2016).
- 23.
Dölling (note 18), p. 34; E.E. Fabrizy, Autriche/Austria, Revue internationale de droit pénal, 74(1), 2003, p. 117.
- 24.
P. Leopold, The application of the civil and criminal law to members of Parliament and parliamentary proceedings, in: Oliver/Drewry (eds.), The Law and Parliament, 1998 (Butterworths, London), p. 74.
- 25.
UNODC, Mechanism for the Review of Implementation of the United Nations Convention against Corruption. State under Review: Finland, July 21 2011, available at: http://www.unodc.org/documents/treaties/UNCAC/CountryVisitFinalReports/2011_07_21_Finland_final_country_review_report.pdf (last accessed 3 November 2016).
- 26.
Dölling (note 18), p. 39.
- 27.
The formal prohibition to finance foreign candidates constituted a mayor policy shift in the US, since it was a common instrument for the promotion of American foreign policy interests during the Cold War. See, as an illustrative example, J.E. Miller, Taking off the gloves: The United States and the Italian elections of 1948, Diplomatic History 7(1), 1983, pp. 35-56.
- 28.
OECD, Commentaries on the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 1997, Adopted by the Negotiating Conference on 21 November 1997.
- 29.
UNODC, State of implementation of the United Nations Convention against Corruption Criminalization, law enforcement and international cooperation, 2015 (United Nations, New York), p. 7; available at: https://www.unodc.org/documents/treaties/UNCAC/COSP/session6/15-03457_ebook.pdf (last accessed 3 November 2016).
- 30.
UNODC, Articles of the United Nations Convention against Corruption on asset recovery: analysis of reported compliance and policy recommendations, 2009, p. 57; available at: https://www.unodc.org/documents/treaties/UNCAC/COSP/session3/V0987578e.pdf (last accessed 3 November 2016): ‘The precise definition of PEPs remains highly debated within international spheres. This ambiguity has obvious negative implications for targeting individuals to whose accounts financial institutions will be expected to apply enhanced scrutiny. The Financial Action Task Force (FATF) defines PEPs as “individuals who are or have been entrusted with prominent public functions in a foreign country, for example Heads of State or of government, senior politicians, senior government, judicial or military officials, senior executives of state owned corporations, or important political party officials. Business relationships with family members or close associates of PEPs involve reputational risks similar to those with PEPs themselves”. States should conform their legal definitions of PEPs to such standards and consider expanding such definitions to domestic prominent officials. Notably, this definition is not intended.’
- 31.
According to R. Kaye (Corruption versus Conflict of Interest: the British Experience, ESRC Centre For Analysis of Risk and Regulation, London School of Economics and Political Science Paper, 2003), and in relation to the British experience, ‘conflict of Interest regulation, in truth, does little to tackle the most egregious cases of corruption. The most that can perhaps be said in cases of outright corruption is that there is an alternative crime if the evidential burden for corruption cannot be overcome. So just as Al Capone was eventually jailed on tax charges, the person who takes bribes but denies that payments were linked to his official behaviour, can be penalised for failing to disclose those payments’.
- 32.
CoE 1997 Convention, Art. 12 – Trading in influence: ‘Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the promising, giving or offering, directly or indirectly, of any undue advantage to anyone who asserts or confirms that he or she is able to exert an improper influence over the decision-making of any person referred to in Articles 2, 4 to 6 and 9 to 11 in consideration thereof, whether the undue advantage is for himself or herself or for anyone else, as well as the request, receipt or the acceptance of the offer or the promise of such an advantage, in consideration of that influence, whether or not the influence is exerted or whether or not the supposed influence leads to the intended result’. See also UNCAC 2003, Art. 18 – Trading in influence: ‘Each State Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally: (a) The promise, offering or giving to a public official or any other person, directly or indirectly, of an undue advantage in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage for the original instigator of the act or for any other person; (b) The solicitation or acceptance by a public official or any other person, directly or indirectly, of an undue advantage for himself or herself or for another person in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage.’
- 33.
W. Slingerland, The fight against trading in influence, Public Policy and Administration 10 (1), 2011, p. 53-66.
- 34.
Slingerland (note 33), p. 56.
- 35.
European Commission, COM (2011) 308 final (available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52011DC0308, last accessed 3 November 2016): ‘The current EU legal framework on public procurement does not include specific provisions on prevention and sanctioning of conflicts of interest, and comprises only few specific rules on sanctioning favouritism and corruption. In January 2011, the Commission launched a consultation on the modernisation of EU public procurement policy. It raises the question whether a common definition of conflict of interest and possible safeguards against such situations are needed at EU level, including the publication of concluded contracts to enhance transparency, the extension of exclusion grounds and 'self-cleaning' measures. In the preparation of a modernised EU public procurement legislation, the Commission will carefully consider these issues. In this context, the Commission will also consider proposing legislation on concessions to create better conditions for the fair and competitive award of these contracts, thus reducing the risks of corruption.’ See also L. Esadze, Guidelines for Prevention of Conflict of Interest, Policy and Legal Advise Centre, 2013, p. 2 (available at: http://www.info-evropa.rs/wp-content/uploads/2013/11/Londa-Esadze-Guidelines-for-Prevention-of-Conflict-of-Interest.pdf, last accessed 3 November 2016): ‘Major international standards defining conflict of interest are: – The OECD “Guidelines for Managing Conflict of Interest in the Public Service” – The Council of Europe Resolution (97)24 on the “Twenty Guiding Principles for the Fight against Corruption”, (especially its guiding principles 1, 3, 7, 10 and 20) – The Council of Europe Recommendation No. R (2000)10 of the Committee of Ministers to Member states on “Codes of conduct for public officials”, (Articles 13 to 18 of the Model Code of Conduct for Public Officials) – The United Nations Convention against Corruption (articles 5, 7, 8 and 48).’ See also OECD, Managing Conflict of Interest in the Public Service. OECD Guidelines and Country Experiences, 2003 (OECD Publications Service, France: Paris), available at: https://www.oecd.org/gov/ethics/48994419.pdf (last accessed 3 November 2016).
- 36.
UNCAC 2003: ‘Each State Party shall endeavour, where appropriate and in accordance with the fundamental principles of its domestic law, to establish measures 12 and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials.’
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Maroto Calatayud, M. (2017). Criminal Responsibility of Political Decision-Makers and Bribery-Related Offences: A Brief Comparative Analysis of Some Prominent Aspects. In: Zimmermann, F. (eds) Criminal Liability of Political Decision-Makers. Springer, Cham. https://doi.org/10.1007/978-3-319-52051-3_13
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