For debate in the Standing Committee — see Rule 15 of the Rules of Procedure

Doc. 9611

31 October 2002

Draft additional protocol to the Criminal Law Convention on Corruption1

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Michel Hunault, France, European Democratic Group

Summary

The Committee on Legal Affairs and Human Rights welcomes the new advance represented by the draft additional protocol to the Criminal Law Convention on Corruption, which adds two new categories of people to those already mentioned in the Convention, namely arbitrators and jurors.

It invites the Committee of Ministers to open the protocol for signature as quickly as possible and to indicate that the text also applies to referees and other sports officials with similar functions, and it asks those member states that have not yet done so and the European Community to ratify the Convention.

I.       Draft opinion

1.       The Assembly draws attention to Opinion No. 207 (1998) on the draft Criminal Law Convention on Corruption, in which it welcomed the adoption of the convention that covered a very wide range of cases of corruption, thereby helping to combat the threat posed to democracy by corruption.

2.       However, it regrets the fact that, almost four years after the convention was opened for signature by member states and by the European Community, it has been ratified by only 18 member states, in spite of the large number of reservations possible.

3.       The Assembly welcomes the new advance represented by the draft additional protocol to the Criminal Law Convention on Corruption, which adds two new categories of people, namely arbitrators and jurors.

4.       The choice of these two new categories seems wise, as both may in certain cases be targets for corruption: arbitrators because of the significant economic and financial consequences of their decisions in the commercial sector and jurors because they are not covered by the same guarantees of independence and impartiality as persons performing similar functions, such as judges.

5.       The Assembly notes, however, that the definition of the term “arbitrator” given in Article 1 of the draft protocol does not indicate the area in which the individuals concerned operate. It believes that it would be wise for referees and other sports officials with similar functions to be covered by the draft protocol, in view of the financial or other implications that their decisions can have, as demonstrated by recent events.

6.       The Assembly therefore recommends that:

i.       the Committee of Ministers:

a. open the additional protocol to the Criminal Law Convention on Corruption for signature as quickly as possible;

b. indicate that the text also applies to domestic and foreign referees and other sports officials with similar functions.

ii.       Council of Europe member states that have not yet done so, and the European Community, ratify the Criminal Law Convention on Corruption.

II.       Explanatory memorandum

1.       By letter dated 27 May 2002, the Chairman of the Ministers’ Deputies transmitted the draft additional protocol to the Criminal Law Convention on Corruption and its draft explanatory report to the Assembly for opinion. In this connection, it is worthwhile noting the background to the draft protocol.

2.       The Parliamentary Assembly adopted Opinion No 207 (1998) on the draft Criminal Law Convention on Corruption on 23 June 1998. In the opinion, it welcomed the adoption of the draft convention, which covered a very wide area, extending further than the relevant international instruments that existed at the time, namely those of the European Union and the OECD.

3.       The convention covers active and passive bribery of domestic and foreign public officials and members of domestic and foreign public assemblies. It also covers bribery in the private sector, bribery of officials of international organisations, members of international parliamentary assemblies and judges and officials of international courts, as well as trading in influence, laundering of proceeds from corruption offences, accounting offences and participatory acts.

4.       The convention has been ratified by 18 states to date.

5.       The Assembly regretted the fact that the convention allowed too many reservations and that these were renewable ad infinitum. It therefore asked the Committee of Ministers to reduce the number of possible reservations and provide for them to expire automatically after five years.

6.       Guided by concerns about ethics, it also proposed ruling out the possibility of making reservations in respect of members of domestic and international assemblies.

7.       It called for clarification of the meaning of “duties” in the case of bribery in the private sector and for provision to be made for legal persons to be held criminally liable.

8.       Lastly, it said that the number of ratifications required for the convention to enter into force (12) was too high.

9.       The Assembly expressed the wish to be invited to appoint a representative to the Group of States against Corruption (GRECO), set up in May 1998 under Committee of Ministers Resolution (98) 7 to monitor implementation of the convention.

10.       By letter dated 18 January 1999, the Chairman of the Ministers’ Deputies notified the President of the Assembly of the action taken on the Assembly’s recommendations. Only the recommendations that the number of reservations be reduced and the Assembly be invited to appoint a representative on GRECO were followed.

11.       The Assembly therefore warmly welcomes the draft additional protocol to the Criminal Law Convention on Corruption, which extends the scope of the convention to include two new categories of people, ie arbitrators and jurors, both domestic and foreign.

12.       The choice of these two categories is justified by the significant economic and financial consequences of the decisions arbitrators take in the commercial sector and, in the case of jurors - whose function is similar to that of judges and who could have been covered by the convention itself - by the fact that they are not covered by the same guarantees of independence and impartiality and are sometimes professionals involved in business activities or in representing the interests of particular professions, which may in some cases entail risks of corruption.

13.       As in the convention, the draft protocol makes a distinction between active and passive bribery in the case of arbitrators and between domestic and foreign arbitrators and jurors.

14.       This new advance in the fight against corruption must be welcomed.

15.       The draft protocol includes only six articles, apart from the final clauses, and the operative part (Articles 2 to 6) is regarded as additional to the convention (Article 8, para 1). Article 1 defines the categories covered.

16.       The choice was no doubt dictated by recent events, and consideration could probably also have been given to other categories of individuals. Although the Assembly has no reason to question the choice, it does wonder whether referees and other sports officials with similar functions should not also be included under arbitrators, in view of the financial and other implications their decisions may have. It would be unfortunate to fail to seize the opportunity of the additional protocol to include them, especially since recent events have shown that football tournaments, ice skating competitions, the Olympic Games and so on can be affected by corruption.

17.       Although neither the definition of the term arbitrator nor the operative provisions rule this out, it should perhaps be indicated explicitly.

18.       The Assembly is also disappointed once again that the same reservations are possible as for the convention and that even the reservations made by a party apply to the protocol.

19.       However, the Assembly is pleased to note that only five ratifications are required for the protocol to enter into force.

Conclusion

20.       The Assembly warmly welcomes the draft additional protocol to the Criminal Law Convention on Corruption and urges the Committee of Ministers to open it for signature as soon as possible. It recommends that the Committee of Ministers indicate that the text also applies to domestic and foreign referees and other sports officials with similar functions.

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Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 9477, Reference No 2744 of 24 June 2002

Draft opinion unanimously adopted by the committee on 28 October 2002

Members of the committee: Mr Lintner (Chairperson), Mr Magnusson, Mrs Gülek, Mr Marty (Vice-Chairpersons), Mr Akçali, Mr G. Aliyev (alternate: Mr R. Huseynov), Mr Andican, Mr Arabadjiev, Mrs van Ardenne-van der Hoeven, Mr Arzilli, Mr Attard Montalto (alternate: Mr Asciak), Mr Barquero Vázquez (alternate: Mrs Posada), Mr Berisha, Mr Bindig, Mr Brejc, Mr Bruce, Mr Bulavinov (alternate: Mr Shishlov) Mr Chaklein, Mrs Christmas-Mřller (alternate: Mrs Auken), Mr Clerfayt, Mr Contestabile, Mr Daly, Mr Davis, Mr Dimas, Mrs Domingues, Mr Engeset, Mrs Err, Mr Fedorov, Mrs Frimansdóttir, Mr Frunda, Mr Guardans, Mr Gustafsson, Mrs Hajiyeva, Mr Holovaty (alternate: Mr Shybko), Mr Jansson, Mr Jaskiernia (alternate: Mr Markowski), Mr Jurgens, Mr Kastanidis, Mr Kelemen, Mr S. Kovalev, Mr Kresák, Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Libane, Mr Lippelt, Mr Manzella (alternate: Mr Budin), Mrs Markovic-Dimova, Mr Martins, Mr Masson (alternate: Mr Hunault), Mr Mas Torres, Mr McNamara (alternate: Mr Lloyd), Mr Meelak, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu, Mrs Pasternak, Mr Pellicini (alternate: Mr Naro), Mr Penchev, Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Ransdorf, Mr Rochebloine, Mr Rustamyan, Mr Skrabalo, Mr Solé Tura, Mr Spindelegger, Mr Stankevic, Mr Stoica, Mrs Stoisits, Mrs Süssmuth, Mr Symonenko, Mr Tabajdi, Mrs Tevdoradze, Mr Tokić, Mr Vanoost, Mr Wilkinson, Mrs Wohlwend

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the committee: Ms Coin, Mr Sich, Ms Kleinsorge, Mr Ćupina, Mr Milner


1 See Doc 9477.