Fourth Annual Report to Congress on the Inter-American Convention Against Corruption
- United States Efforts to Encourage Ratification and Implementation by Other Signatories
- Domestic Legislation Implementing the IACAC and Actions to Advance its Object and Purpose
- Progress by the Monitoring Process
- Future Negotiations
- Senate Report: Section on Provisos
- Inter-American Convention Against Corruption
- The Report of Buenos Aires: Follow-Up Mechanism
- Chart on Status of Ratifications and Mechanism Adoption
- Website Listing: IACAC-Related Documents
The Senate adopted the Resolution of Advice and Consent to Ratification of the Inter-American Convention Against Corruption (hereinafter “IACAC”), attached as Appendix A, on July 27, 2000, which requires that the President submit a report to Congress not later than April 1, 2001 and annually thereafter for five years, setting forth the topics that are required to be addressed in the report. President George W. Bush submitted the first three reports to Congress in April 2001, 2002, and 2003. Since the preparation of the Third Annual Report, significant steps have been taken toward implementation of the IACAC, particularly in the efforts of the evaluation mechanism. The IACAC remains one of the most important regional efforts among the growing number of international initiatives against corruption.
States Parties to the IACAC continue, with assistance from the Organization of American States (OAS), to conduct formal monitoring of the IACAC’s implementation. The Committee of Experts (“Committee”) for the Follow-Up Mechanism (“Mechanism”) has finalized eight country assessments. Seven of the eight states have authorized publication of the final assessment reports on the OAS web site. The Committee's assessments contain specific recommendations for additional legislation, regulations, or actions where necessary to implement the IACAC. The recommendations also address the need for strengthening the administration, transparency, and other anticorruption efforts to enhance and measure the effectiveness of anticorruption laws and mechanisms.
All twenty-two of the original States Parties to the Mechanism responded to the Committee’s questionnaire on the portions of the IACAC that are included in the first round of assessments and seventeen States Parties, including the United States, authorized the publication of their responses on the OAS website. These responses and their publication provided the Committee and the public with extensive information about the steps that the States Parties have taken and are taking to meet their commitments under the IACAC.
In addition to supporting and participating in the formal multilateral monitoring process, the United States Government continues to work closely with our hemispheric partners and international financial institutions to promote the implementation and enforcement of the IACAC. Activities in 2003 included programs offered through the U.S. Agency for International Development (USAID), the U.S. Office of Government Ethics (OGE), the World Bank, the Inter-American Development Bank (IDB), and others.
The first Summit of the Americas in 1994 broached the subject of widespread hemispheric corruption at a political level for the first time, raising significantly the level of public visibility and attention to this serious issue. Negotiations began shortly thereafter to develop the first intergovernmental treaty focusing specifically on the fight against corruption. On March 29, 1996, the IACAC was adopted and signed by twenty-one OAS member governments at a Specialized Inter-American Conference in Caracas, Venezuela. The IACAC is attached as Appendix B.
The IACAC identifies acts of corruption to which the instrument will apply and contains articles creating binding obligations under international law, as well as establishing hortatory principles for effectively fighting corruption. The IACAC provides for institutional development and enforcement of anticorruption measures, requires criminalization of specified acts of corruption, and contains articles on extradition, seizure of assets, mutual legal assistance, and technical assistance where acts of corruption occur in or affect another State Party.
Article III emphasizes the importance of preventive measures, and calls upon Parties to consider implementing such measures. These include systems of government hiring and procurement that assure openness, equity, and efficiency of such systems; standards of conduct for public employees; financial disclosure requirements for public employees; laws that deny favorable tax treatment for any individual or corporation for payments that violate laws against corruption; whistleblower protections; oversight bodies with authority to develop new anticorruption mechanisms; accounting systems and internal accounting controls; procedures for addressing the relationship between equitable compensation and probity in public service; and mechanisms to encourage participation by civil society and non-governmental organizations in efforts to prevent corruption. The Committee of Experts has selected four of the commitments of Article III for its first round of mutual evaluation and assessment, as well as Article XIV (Assistance and Cooperation) and XVIII (Central Authorities).
As of December 31, 2003, twenty-nine of the thirty-four OAS nations were parties to the IACAC. Only Antigua and Barbuda, Dominica, and St. Kitts and Nevis had not signed, ratified, or acceded to the IACAC and Barbados and Haiti had signed but not ratified or acceded to the convention. St. Lucia acceded to the IACAC during the 2003 reporting period. Of all parties to the IACAC, only St. Lucia has not yet joined the Follow-Up Mechanism described in Section V. The dates of the ratifications and the deposits of the instruments of ratification appear in Appendix D.
In 2003, the OAS and the Department of State have continued to encourage ratification or accession by Antigua and Barbuda, Barbados, Dominica, and St. Kitts and Nevis. Haiti has apparently ratified, but has not deposited its instrument of ratification. Although outside the evaluation period for this report, Antigua and Barbuda acceded to the IACAC in March 2004.
Based on 2003 reporting from U.S. Embassies and Consulates in the hemisphere, efforts taken by governments demonstrate not only a commitment to pass legislation implementing the convention, but a willingness to engage in institutional reform and enforcement actions necessary to make the commitments of the IACAC a reality in day-to-day life. A summary of those actions:
Legal Reform: Canada and Chile passed new legislation governing campaign financing. Argentina, Jamaica, and Nicaragua passed new legislation or issued regulations to increase public scrutiny of the assets of government officials. Canada, Mexico, and Nicaragua passed laws modernizing their civil services. Canada and Nicaragua increased the number of corrupt acts carrying criminal sanction. Chile and Colombia improved anti-money laundering and asset forfeiture capabilities; Nicaragua ratified the OAS Convention on Mutual Assistance in Criminal Matters. Honduras, Jamaica, and Mexico passed freedom of information laws. Paraguay reformed the tax system to make it more transparent. Chile, Nicaragua, and Venezuela introduced general regulatory reforms to reduce corruption. U.S. Embassies will continue to monitor these new laws to observe implementation and effectiveness in reducing corruption.
Institutional Reform: Bolivia launched a web page to publish all government contracts; Ecuador ordered that all government procurement be published on-line. Bolivia reformed government hiring practices. Bolivia, Ecuador, El Salvador, Jamaica, and Mexico instituted reforms in law enforcement agencies to increase accountability and professional responsibility. Brazil and Nicaragua implemented new financial management or auditing systems. Ecuador, Guatemala, and Jamaica launched new nationwide anticorruption entities. Nicaragua established a public ethics office in parliament. Mexico and Uruguay established codes of ethics for civil service entities.
Enforcement: Brazil, Nicaragua, and Suriname convicted officials involved in corruption. Chile, Mexico, Nicaragua, Paraguay, and Peru sanctioned or removed high-level officials for corruption; Argentina and Paraguay impeached supreme court justices. Brazil, the Dominican Republic, Ecuador, Honduras, Jamaica, and Nicaragua arrested, indicted, or charged high-level officials for corruption. The Bahamas, Costa Rica, Guatemala, and Paraguay initiated investigations into high-level official corruption. Mexico fined a political party for campaign financing irregularities.
As described in previous reports, the formal monitoring process (referred to as the Follow-Up Mechanism) was established by the May 2001 Report of Buenos Aires, attached as Appendix C, and consists of two parts: the Committee of Experts, responsible for technical analysis, and the Conference of States Parties to the Follow-Up Mechanism, responsible for implementation oversight.
Since the Third Annual Report, there has been considerable progress in the monitoring process. The Committee of Experts has produced eight assessment reports: Argentina, Colombia, Nicaragua, Paraguay, Chile, Ecuador, Panama, and Uruguay. Seven of these reports have been made publicly available on the OAS website (Chile is not available). Web addresses can be found in Appendix E. At the current rate, the first round of evaluations should be completed in mid-2006.
The Committee also compiled a set of recommendations to the Conference of States Parties for strengthening the Mechanism in response to the mandate of the Special Summit of the Americas (for further detail on the Special Summit see Section VI below). These recommendations and additional information about the Committee’s work can be found in its Activity Report to the Conference of States Parties, which should be available on the OAS website shortly.
Seventeen countries – Argentina, Bolivia, Brazil, Canada, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, Mexico, Nicaragua, Panama, Paraguay, Peru, the United States, Uruguay, and Venezuela – have made their answers to the questionnaire used by the Committee publicly available via the OAS website.
The Document of Buenos Aires anticipated annual meetings of the Conference of States Parties to the Follow-Up Mechanism. No such meeting has been held to date, but one is scheduled for April 1-2, 2004, in Washington, DC. The agenda for this meeting includes the adoption of rules and procedures, the election of officers, and consideration of an agenda that includes financing of the Mechanism and other proposals to strengthen and accelerate the Mechanism, as well as recommendations for concrete measures above and beyond the Mechanism as tasked by the Summit (see below).
The Declaration of Nuevo Leon, a joint statement made by the heads of state and government at the Special Summit of the Americas in January 2004, contains the following commitment relating to the IACAC:
The Inter-American Democratic Charter states that the peoples of the Americas have the right to democracy and that their governments have the obligation to promote and defend it, and it establishes that transparency in government activities, probity, and responsibility in public management are key components of the exercise of democracy. We will therefore increase our cooperation within the framework of the Inter-American Convention against Corruption, particularly by strengthening its follow-up mechanism. We charge the upcoming meeting of the Conference of States Parties to the follow-up mechanism of the Convention with proposing specific measures to strengthen this mechanism. These recommendations will be evaluated at a meeting of the States Parties to the Convention, to be held in Managua, Nicaragua in mid-2004. That meeting will also consider additional concrete measures to increase transparency and combat corruption. We instruct our foreign ministers to report on the progress achieved to the Fourth Summit of the Americas.
At the meeting of the Conference of States Parties to the Mechanism, scheduled for April 1-2, 2004 in Washington, DC, participating nations will consider specific measures to strengthen the Follow-Up Mechanism, including the recommendations of the Committee on funding issues, a permanent secretariat, and the participation of civil society. The Conference of States Parties to the Mechanism will also consider recommendations on specific measures beyond the Mechanism, which will be referred to the meeting of the States Parties to the Convention, currently scheduled for July in Managua. It is anticipated that the OAS General Assembly in June will also have recommendations for the meeting of the IACAC parties.
The July meeting of the States Parties to the Convention will consider these recommendations, as well as specific proposals in areas beyond the IACAC itself, including denial of safe haven to the corrupt and their assets, transparency in government transactions and financial management, enhancing mutual legal assistance and extradition, and legislative immunity. The Fourth Summit of the Americas, to be held in Argentina in 2005, will evaluate these proposals with a particular view toward bringing hemispheric commitments in line with the new United Nations Convention Against Corruption.
The Committee and the evaluation process have taken important steps in completing and publishing the first assessment reports. The States Parties -- the subjects of these reports -- now need to take prompt action to acknowledge receipt of the recommendations and take steps to consider and implement the recommendations. This might mean assigning a particular office or individual the responsibility for overseeing these steps and establishing deadlines for implementation, as well as for disseminating the report and the recommendations. A State Party that rejects a Committee recommendation should explain why it does so. The evaluation process calls for dissemination of the report to the public and to the appropriate civil society organizations, with proposals on how the State Party intends to involve civil society in the implementation of the recommendations. The first four States Parties subject to evaluation have already made their evaluation reports public. Civil society organizations that have made implementation of the IACAC a concern will now have an opportunity to engage these States Parties on this issue.
With the opening of the United Nations Convention Against Corruption for signature in December 2003, the hemisphere now has a new set of transparency and anticorruption efforts that will require implementation and evaluation. The commitments of the hemisphere to transparency anticorruption goals within the OAS General Assembly and the Summit process lay the groundwork for moving these nations forward to the next generation of anticorruption efforts. The United States Government, through its embassies and agencies, will continue to work closely with the States Parties to the IACAC to implement the recommendations of the Committee and the new commitments of the Summit, as well as to encourage countries to sign and ratify the UN Convention.
The recent Special Summit of the Americas and the resulting Declaration of Nuevo Leon reconfirmed the importance of the IACAC and its Mechanism to promoting political will and encouraging effective action against corruption in the hemisphere. The United States will continue to support these important regional anticorruption activities and encourage actions that further the hemisphere’s desire to remain at the cutting edge of world-wide efforts to safeguard integrity.
SENATE REPORT: SECTION ON PROVISOS
Provisos.-- The advice and consent of the Senate is subject to the following provisos:
- ENFORCEMENT AND MONITORING. -- Not later than April 1, 2001, and annually thereafter for five years, unless extended by an Act of Congress, the President shall submit to the Committee on Foreign Relations of the Senate, and the Speaker of the House of Representatives, a report that sets out:
- RATIFICATION -- A list of the countries that have ratified the Convention, the dates of ratification and entry into force for each country, and a detailed account of U.S. efforts to encourage other nations that are signatories to the Convention to ratify and implement it.
- DOMESTIC LEGISLATION IMPLEMENTING THE CONVENTION AND ACTIONS TO ADVANCE ITS OBJECT AND PURPOSE -- A description of the domestic laws enacted by each Party to the Convention that implement commitments under the Convention and actions taken by each Party during the previous year, including domestic law enforcement measures, to advance the object and purpose of the Convention.
- PROGRESS AT THE ORGANIZATION OF AMERICAN STATES ON A MONITORING PROCESS -- An assessment of progress in the Organization of American States (OAS) toward creation of an effective, transparent, and viable Convention compliance monitoring process, which includes input from the private sector and non-governmental organizations.
- FUTURE NEGOTIATIONS -- A description of the anticipated future work of the Parties to the Convention to expand its scope and assess other areas where the Convention could be amended to decrease corrupt activities.
INTER-AMERICAN CONVENTION AGAINST CORRUPTION
Adopted at the third plenary session, held on March 29, 1996
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
HAVE AGREED to adopt the following:
INTER-AMERICAN CONVENTION AGAINST CORRUPTION
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:
- To promote and strengthen the development by each of the States Parties of the mechanisms needed to prevent, detect, punish and eradicate corruption; and
- 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:
- 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.
- Mechanisms to enforce these standards of conduct.
- Instruction to government personnel to ensure proper understanding of their responsibilities and the ethical rules governing their activities.
- 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.
- Systems of government hiring and procurement of goods and services that assure the openness, equity and efficiency of such systems.
- Government revenue collection and control systems that deter corruption.
- Laws that deny favorable tax treatment for any individual or corporation for expenditures made in violation of the anticorruption laws of the States Parties.
- 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.
- Oversight bodies with a view to implementing modern mechanisms for preventing, detecting, punishing and eradicating corrupt acts.
- 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.
- Mechanisms to encourage participation by civil society and nongovernmental organizations in efforts to prevent corruption.
- 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.
- 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.
- 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.
- 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.
- 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
- This Convention is applicable to the following acts of corruption:
- 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;
- 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;
- 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;
- The fraudulent use or concealment of property derived from any of the acts referred to in this article; and
- 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.
- 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.
- 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:
- 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;
- 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;
- 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
- 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.
- Among those States Parties that have established these offenses, such offenses shall be considered acts of corruption for the purposes of this Convention.
- 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.
- This article shall apply to the offenses established by the States Parties in accordance with this Convention.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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
- 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.
- 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.
- 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.
- 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
For the purposes of articles XIII, XIV, XV and XVI of this Convention, the fact that the property obtained or derived from an act of corruption was intended for political purposes, or that it is alleged that an act of corruption was committed for political motives or purposes, shall not suffice in and of itself to qualify the act as a political offense or as a common offense related to a political offense.
- 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.
- The central authorities shall be responsible for making and receiving the requests for assistance and cooperation referred to in this Convention.
- 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 is subject to ratification. The instruments of ratification shall be deposited with the General Secretariat 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.
The purpose of the Inter-American Convention against Corruption is to promote and strengthen cooperation among the States Parties and to develop the mechanisms needed to prevent, detect, punish, and eradicate corruption.
Considerable progress has already been made in implementing the provisions of the Inter-American Convention against Corruption at the national level, and significant developments have also taken place at subregional and international levels, especially through the Inter-American Program for Cooperation in the Fight against Corruption.
A mechanism to follow-up on and review how such developments are being implemented and to facilitate cooperation among States Parties and among all member states of the OAS will assist in attaining the objectives of the Convention. This mechanism must take account of the need for gradual progress in attaining those objectives and must support programs for implementation of the Convention pursued by the States Parties.
This mechanism is established in fulfillment of the Plan of Action signed at the Third Summit of the Americas, in Quebec City, Canada, in whose chapter on corruption the Heads of State and Government undertook to support the establishment, as soon as possible, taking into consideration the recommendation of the OAS, of a follow-up mechanism for the implementation of the Inter-American Convention against Corruption by the States Parties to this instrument.
The purposes of the mechanism shall be:
- To promote the implementation of the Convention and contribute to attaining the purposes set forth in Article II thereof;
- To follow up on the commitments made by the States Parties to the Convention and to study how they are being implemented; and
- To facilitate technical cooperation activities; the exchange of information, experience, and best practices; and the harmonization of the legislation of the States Parties.
2. Basic principles
Development of the mechanism for follow-up of the commitments of the States Parties to the Convention shall be guided by the purposes and principles established in the Charter of the Organization of American States. Therefore, the powers accorded to it and the procedures it follows shall take account of the principles of sovereignty, nonintervention, and the juridical equality of the states, as well as the need to respect the Constitution and the fundamental principles of the legal system of each State Party.
The mechanism for follow-up of implementation of the Convention shall be intergovernmental in nature and shall have the following characteristics:
- It shall be impartial and objective in its operations and in the conclusions it reaches.
- It shall ensure equitable application and equal treatment among States Parties.
- It shall not entail the adoption of sanctions.
- It shall establish an appropriate balance between the confidentiality and the transparency of its activities.
- It shall be conducted on the basis of consensus and cooperation among States Parties.
4. Members of the follow-up mechanism
Only States Parties to the Convention shall participate in the follow-up mechanism.
5. Structure and responsibilities
The follow-up mechanism shall be comprised of two bodies: the Conference of the States Parties and the committee of experts.
All States Parties shall be represented in the Conference. It shall have general authority to implement and responsibility for implementation of the mechanism and shall meet at least once each year.
The committee shall be comprised of the experts appointed by each of the States Parties. It shall be responsible for technical analysis of the implementation of the Convention by the States Parties, among other tasks related to this main function. The Committee may request assistance and guidance from the Conference, which shall meet to consider such requests.
Secretariat services for the mechanism shall be provided by the General Secretariat of the Organization of American States.
The headquarters for the follow-up mechanism shall be at the headquarters of the Organization of American States.
- The Committee shall adopt and disseminate its rules of procedure and other provisions.
- Country reports
- Selection of provisions and methodology
The committee of experts shall select, from among the provisions of the Convention, those whose application by the States Parties may be reviewed, seeking to maintain general balance among the various types of provision contained in the Convention, and shall determine the length of time it will devote to this task, which shall be known as a "round." The committee shall devise a method for the review of each provision, designed to ensure that sufficient reliable information will be obtained. The Committee shall publish the information referred to in this paragraph.
At each round, the Committee shall prepare a questionnaire on the provisions selected, based on OAS document CP/GT/PEC-68/00 rev. 3, "Questionnaire on Ratification and Implementation of the Inter-American Convention against Corruption," and shall forward it to those States Parties to be reviewed. The States Parties shall undertake to reply to the questionnaire by the deadline established by the committee. The replies to the questionnaire shall be distributed to all committee members.
- Selection of countries
The Committee shall use an impartial method for setting the dates for review of the information on each State Party, such as their presentation on a voluntary basis, chronological order of ratification of the Convention, or lot. The Committee shall give adequate advance notice of the dates for the review of each State Party during each round.
- Review of information and preliminary report
To expedite its work, the committee shall establish a subgroup in each case, comprised of experts from two States Parties, which shall review, with support from the Secretariat, the information on each State Party.
On the basis of that review, each subgroup shall prepare, with support from the Secretariat, a confidential preliminary report, which shall be made available to the State Party concerned for its observations.
Each subgroup shall prepare a revised version of the preliminary report, taking into account the observations presented by the State Party concerned, and present it to a plenary meeting of the Committee for its consideration.
The plenary meeting of the Committee shall prepare the conclusions and, if deemed appropriate, make the recommendations it considers pertinent.
- Final report
After completing, at each round, its review of the reports for all States Parties, the Committee shall issue a final report for each State Party, containing the observations of the State Party reviewed, which shall be forwarded first to the Conference and then published.
- Selection of provisions and methodology
Mindful of the purposes of the follow-up mechanism and in the framework of the Inter-American Program for Cooperation in the Fight against Corruption, the Committee shall strive to cooperate with all OAS member states, taking account of the activities already under way within the Organization, and shall report to the Conference thereon.
The Committee shall undertake systematic consideration of the issues involved in cooperation and assistance among States Parties in order to identify the areas where technical cooperation is needed and the most appropriate methods for collection of useful data to review such cooperation and assistance. This work shall take account of the provisions of Articles XIII through XVI and Article XVIII of the Convention.
States that are not parties to the Inter-American Convention against Corruption may be invited to observe the plenary meetings of the committee of experts if they so request.
8. Civil society participation
In order to obtain better input for its review, the Committee shall include in the provisions governing its operation an appropriate role for civil society organizations, taking into account the "Guidelines for the Participation of Civil Society Organizations in OAS Activities" [CP/RES. 759 (1217/99)] and the definition of civil society contained in AG/RES. 1661 (XXIX-O/99), in keeping with the domestic legislation of the State Party under review. The Committee may request information from civil society organizations, for which purpose it shall develop the method it considers most appropriate.
The activities of the follow-up mechanism shall be funded by contributions from States Parties to the Convention, from states that are not parties to the Convention, and from international financial organizations, and by any other contribution that may be received in accordance with the General Standards to Govern the Operations of the General Secretariat, including a specific fund that may be established. Such contributions may include offers by State Parties to organize and host meetings of the bodies of the mechanism. The Conference of States Parties may establish criteria for determining the amounts of regular contributions.
10. Periodic review of the mechanism
The Conference shall periodically review the operation of the mechanism, taking account of observations made by the committee of experts, and may introduce such changes as it deems appropriate.
11. Transitory provision
To facilitate the work of the first meeting of the committee, the Conference considers that topics that the committee might analyze at its first round are, inter alia:
- Article III, selecting as many measures as the Committee considers appropriate;
- Article XIV; and
- Article XVIII
In the event that the committee of experts encounters difficulties in conducting a review of all topics indicated, it shall report such difficulties to the Conference so that that body may take such decisions, as it deems appropriate at its next Conference.
The Conference also suggests that, during its first year of operation, the committee of experts hold at least two meetings.
Status of Ratifications and Mechanism Adoption
|Barbados||04/06/01||/ /||/ /||N|
|Costa Rica||03/29/96||05/09/97||06/03/97 RA||Y|
|Dominican Republic||03/29/96||06/02/99||06/08/99 RA||Y|
|El Salvador||03/29/96||10/26/98||03/18/99 RA||Y|
|Grenada||/ /||11/15/01||01/16/02 RA||Y|
|Haiti||03/29/96||/ /||/ /||N|
|St. Lucia||/ /||01/23/03||04/30/03 AC||N|
|St. Vincent & Grenadines||/ /||05/28/01||06/05/01 AC||Y|
|Trinidad and Tobago||04/15/98||04/15/98||04/15/98 RA||Y|
|United States||06/02/96||09/15/00||09/29/00 RA||Y|
RA = Ratification
AC = Accession
TABLE OF WEBSITES FOR DOCUMENTS AND INFORMATION ABOUT THE INTER-AMERICAN CONVENTION AGAINST CORRUPTION AND THE FOLLOW-UP MECHANISM
Status of Signers/Ratifications:
Report of Buenos Aires:
Committee of Experts’ Rules of Procedure and Other Provisions:
Country Replies to the Questionnaire:
Country Report Format:
February 2004 Activity Report of the Committee:
Declaration of Nuevo Leon:
Presidential Proclamation on Suspension of Entry: