A.        that the following amendments be made to the draft convention:

1.       The Assembly welcomes the prompt adoption by a multidisciplinary group of a draft criminal law convention on corruption, only six months after the 2nd Summit of Heads of State and Government adopted a programme of action against corruption and instructed the Committee of Ministers to adopt guiding principles, to secure the rapid completion of international legal instruments and to establish an appropriate and efficient mechanism for monitoring observance of the guiding principles and implementation of the said international legal instruments.

2.       The draft convention covers a very wide scope, much broader than that covered by other international instruments on the subject. The European Union’s Convention concerns corruption involving officials of the European Communities or officials of European Union member states. The OECD convention is confined to combating active bribery in international commercial transactions.

3.       The Council of Europe’s draft convention deals with active and passive bribery of domestic public officials, members of domestic public assemblies, foreign public officials and members of foreign public assemblies, bribery in the private sector, bribery of officials of international organisations, members of international parliamentary assemblies, judges and officials of international courts, trading in influence, laundering of proceeds from corruption offences, account offences and participatory acts.

4.       However, the impact of the convention is seriously diminished by the reservations it allows for. Firstly, reservations are possible in respect of all the cases of corruption mentioned above, with the exception of those involving domestic public officials. The Assembly considers that leaving so many reservations open to the parties threatens to drain the convention of its substance. Worse, while the convention provides, in Article 36.2, for these reservations to be valid for a period of 5 years, it adds that “such reservations may be renewed for periods of the same duration”. In practice, therefore, there is no time limit. Now, although reservations may be necessary initially, to enable states to adopt the necessary legislative measures, it is difficult to justify continuing them beyond that initial period, for this would allow states to shirk the obligations set forth in the convention, thereby depriving it of any effect.

5.       Secondly, it is unusual when drafting a convention to provide for reservations in each article, instead of listing in a single article at the end of the convention all those articles in respect of which reservations may be made.

6.       The Assembly should therefore suggest replacing the current wording with a single article on reservations, and limiting the number of reservations. An approach similar to that adopted in the Social Charter could be envisaged, setting a lower limit on the number of commitments to which parties are required to subscribe. Alternatively, an upper limit could be placed on the number of reservations authorised.

7.       The Assembly should also propose doing away with the possibility of renewing reservations, which would automatically expire after the initial five-year period.

8.       Certain provisions need to be examined in greater detail.

Bribery of members of domestic public assemblies (Article 4), foreign public assemblies (Article 6) or international parliamentary assemblies (Article 10):

9.       From both a political and an ethical point of view, it would be advisable for the Parliamentary Assembly to take the initiative in this field and propose barring the possibility of reservations concerning corruption involving members of these three categories of assembly.

Bribery in the private sector (Article 8):

10.       To what extent should states interfere in matters concerning the private sector, which generally fall under civil law? Such interference seems to be warranted here, as it would contribute to establishing the atmosphere of confidence that should prevail in a democratic society. Corruption is a threat not only to the victim’s possessions and/or the taxpayer’s money, but also, and above all, to the confidence without which there can be no healthy social and economic relations.

11.       The wording of Article 8 remains unclear, however. What exactly are the “duties” it refers to? Perhaps this could be clarified in the explanatory report.

Liability of legal persons (Article 18):

12.       Article 18 does not expressly stipulate that the liability of legal persons to which it refers is criminal liability. Having established the principle of the liability of legal persons, without further explanation, the Article goes on, in paragraph 3, to stipulate that “Liability of a legal person under paragraphs 1 and 2 shall not exclude criminal proceedings against natural persons who are perpetrators, instigators of, or accessories to, the criminal offences mentioned in paragraph 1.”.

13.       As it did in its opinion on the draft convention on the protection of the environment through criminal law, in which it concluded that criminal law could effectively protect the environment only if legal persons could be held criminally liable, the Assembly should apply the same reasoning here and ask for it to be made clear that Article 18 refers to the criminal liability of legal persons.

The number of ratifications necessary for the entry into force of the convention (Article 32):

14.       As it stands, before it enters into force the convention must be ratified by 12 Council of Europe member states or non-member states which helped to draft it, namely Belarus, (Bosnia and Herzegovina), Canada, Georgia, the Holy See, Japan, Mexico, the United States of America. The figure was left in square brackets, which means it is merely a suggestion. There seems to be no reason to require so many ratifications.

15.       The Assembly should therefore propose reducing the number, especially if such broad provision for reservations is to be maintained.

Monitoring mechanism (Article 24)

16.       The draft convention provides for the Group of States against Corruption (GRECO) to monitor its implementation. All states party to the convention are automatically members of the GRECO.

17.       In May 1998 the Committee of Ministers adopted Resolution (98) 7 authorising the partial and enlarged agreement establishing the GRECO. Article 7 of the Statute of the GRECO, set forth in the appendix to the Resolution, stipulates that “the Committee of Ministers may invite other Council of Europe bodies to appoint representatives to the GRECO after consulting the latter”.

18.       The only other organ of the Council of Europe according to its Statute is the Parliamentary Assembly. In any event, the Parliamentary Assembly should ask to be invited to appoint a representative to the GRECO.

19.       The Assembly should therefore propose participating in the work of the GRECO.

International co-operation (Article 25):

20.       The principles set forth in the draft convention deserve special mention, for they introduce something new to international co-operation. First of all, states undertake to supply information in their possession spontaneously to other states concerned by such information.

21.       Secondly, the draft convention provides, in a manner of speaking, for the application of the principle of subsidiarity. In other words, international co-operation on the criminal offences covered by the convention applies only where national law and other agreements do not provide for such co-operation. It is important to preserve these provisions, which can facilitate international co-operation to combat corruption where party states are not bound by other, bilateral or multilateral conventions. This appears essential insofar as the convention will be open to non-member states who are not party to the Council of Europe’s conventions on international co-operation.

Conclusions

22.       The Assembly recommends to the Committee of Ministers:

1 See Doc 8114.