21st Conference of European Ministers of Justice
LINKS BETWEEN CORRUPTION AND ORGANISED CRIME
Prague, Czech Republic
Conclusions, Report by the Secretary General of the Council of Europe
1. The 21st Conference of European Ministers of Justice was held in Prague on 10 and 11 June 1997 at the invitation of the Czech government. The agenda, list of participants and Resolutions adopted are set out in Appendices I-III to this report.
2. The Bureaux of the CDCJ and the CDPC and the Senior Officials held their preparatory meetings the day before the Conference.
3. The Czech Minister of Justice was elected Chair of the Conference. The Ministers of Justice of Hungary and Malta were elected Vice-Chairs.
4. The theme of the Conference was "Links between Corruption and Organised Crime". The main rapporteur was the Czech Minister of Justice, while the Minister of Justice of Hungary acted as co-rapporteur.
5. In his opening speech, Mr Vaclav Havel, President of the Czech Republic, stressed the gravity of the danger that corruption and organised crime pose for democracy: this was particularly true for new democracies, where state organs in general, and the judiciary in particular, must acquire and retain the confidence of the people.
6. In his address, the Deputy Secretary General recalled the Conclusions of a previous Conference in Valletta three years before, devoted to the subject of corruption, following which a Multidisciplinary Group on Corruption (GMC) was set up and entrusted with implementing a Programme of Action against Corruption.
He stressed that, however, strong political commitment of Governments to the international fight against corruption was sometimes more verbal than real, and progress has been slower than expected.
Ministers should now express their political support to the work of the Council of Europe, in particular towards putting into place appropriate instruments and follow-up mechanisms.
7. After the discussion, in which most delegations spoke, the Ministers adopted Resolution n° 1 (see Appendix III).
This Resolution recommends that the Committee of Ministers should support the work undertaken by the European Committee on Crime Problems (CDPC), the European Committee on Legal Cooperation (CDCJ) and the GMC to speed up the implementation of the Programme of Action against Corruption and, in this context to elaborate international instruments against corruption.
In particular, the relevant international instruments to be prepared should provide for an effective follow-up mechanism open to member States and non-member States of the Council of Europe on an equal footing.
8. The Resolution also invites the Committee of Minister to consider the matter of preventing and combating organised crime and corruption in the framework of the preparation of the second Summit of Head of States and Governments of the Council of Europe.
9. The Ministers agreed that certain proposals by the Minister of Justice of the Russian Federation should be appended to this report (see Appendix IV).
10. The Ministers expressed their gratitude to the Czech authorities for hosting the Conference and for their generous hospitality (Resolution n° 2, see Appendix III).
11. The Czech Minister of Justice presented her report (MJU-21 (97) 1), in which she drew attention to the international nature of the problem; however, it was precisely at the level of the international cooperation that results were lower than expected.
The first issue to be addressed was the international harmonisation of the definition of corruption, to make sure that the same behaviour was punished all over Europe.
12. International cooperation must extend to all possible areas, including civil law and administrative law, because criminal law, important as it may be, could not cover all the aspects of the problem. In this respect, the role of the State was irreplaceable.
13. Existing international instruments should be reviewed, and possibly amended or supplemented, and new forms of legal cooperation (e.g. between neighbouring countries) should be introduced. In this context, full support should be given to the draft Framework Convention against Corruption, as well as to the continuation of the Octopus project.
14. The Hungarian Minister of Justice presented his co-report (MJU-21 (97) 2), highlighting the two aspects of international cooperation that should be pursued concurrently in combating corruption and organised crime.
15. The first aspect was harmonisation of national laws; the second aspect was the effective collaboration among organs of police and justice of different States.
The work of the GMC was proceeding well in both directions, and the draft framework agreement being prepared by the GMC deserved full support.
16. It was important that whatever undertakings the States assume, their implementation should be monitored by a permanent structure, to be set up within the Council of Europe, but with the participation of the non-member States concerned on an equal footing.
17. The Chair of the GMC, in accordance with the decision taken by the Committee of Ministers, presented the progress report on the work of the Group (MJU-21 (97) 3), outlining the results achieved since the 19th Conference of European Ministers of Justice (Valletta, 1994) and the adoption of the Programme of Action against Corruption.
18. He informed the Conference that the GMC was in the process of drafting a framework Convention, setting out the principles underlying the fight against corruption to be implemented at national level and complemented by subsequent more specific international standards. This text provided for a follow-up mechanism. The Chairman identified the legal nature of this instrument and its follow-up mechanism, in particular as regards the participation of non-member States of the Council of Europe, as the main difficulties encountered by the GMC in this connection. He invited the Ministers of Justice to provide political guidelines to overcome these difficulties.
19. At the same time, the GMC was preparing a draft convention on the criminal law aspects of the fight against corruption, and had carried out a feasibility study which supports the preparation of a convention on compensation for damage resulting from acts of corruption.
20. A model code of conduct for public officials was also being prepared.
21. Also included in the Ministers' file were two information documents, the first reproducing the Resolution adopted by the 19th Conference of European Ministers of Justice (MJU-21 (97) inf) and the second related to the Octopus Project (MJU-21 (97) inf2).
Summary of the discussion
22. The Ministers observed that organised crime, particularly when linked to corruption, represented a major threat to the prosperity and democratic security of Europe. They pointed out that organised crime took advantage of the globalisation of markets, modern technology and the free movement of persons, goods and capital. Criminal organisations made use of corruption to hinder law enforcement, facilitate illicit activities, launder their proceeds and penetrate legitimate economic sectors. Their significant financial potential allowed them to infiltrate the structures of power, obtain political and economic influence and jeopardize the proper functioning of State institutions.
23. Most Ministers underlined that a clear commitment to combat corruption and organised crime was necessary in order to defend the fundamental principles of the Council of Europe - Democracy, Rule of Law, Human Rights and Social Progress. In many countries the problem posed by corruption and organised crime was so acute that the fight against these phenomena had become a top political priority. Economic development and the stability of democratic institutions depended upon their ability to find appropriate means to fight corruption and crime. In this context, Ministers referred to different measures which had been taken in their States to adapt law and state structures to deter corruption and modern, organised and transnational forms of criminality. The importance of proper law-enforcement, preventive measures and a better use of new methods of investigation was stressed. For the criminal justice system to play its role in the fight against corruption and organised crime consideration would have to be given, in addition, to the protection of witnesses and, in appropriate cases, to means of limiting the immunity of certain categories of persons to prosecution.
24. All Ministers recognised that the combat against corruption and organised crime could only be effective if carried out both at a national and international level with enhanced co-operation between States and between international organisations. All countries were concerned, although at different levels, by these phenomena. Experience sharing and contacts between services involved in the fight against corruption and organised crime appeared essential. Raising public awareness about the dangers of corruption and organised crime and promoting ethical values were considered as effective measures to be included in a global strategy in this field.
25. A number of Ministers referred to the need to ratify and to make better use of existing international instruments in the field of international cooperation in criminal matters. However, such instruments needed to be updated in order to remain fully effective in face of modern forms of criminality. In addition further legal instruments would be necessary in order to consolidate European standards, take account of new developments and strengthen co-operation. Support was given to efforts to facilitate the closer alignment of national qualifications relating to legal and criminological aspects of organised crime and computer and cyber-crime.
26. A call was made for the intensification of the "Octopus Project" after the initial phase of evaluation which will be completed in December 1997 and for the rapid implementation of the evaluation programme of measures to fight money laundering in countries not covered by FATF procedures.
27. The Ministers unanimously welcomed the adoption of the Council of Europe Programme of Action against corruption. They stressed that criminal law measures, although essential, were not sufficient to combat corruption efficiently. In their view the comprehensive, multidisciplinary approach of the Programme of Action formed part of the specificity of the Council of Europe action against corruption and reinforced its usefulness.
28. The Ministers fully supported the important results which had already been achieved by the Multidisciplinary Group on corruption (GMC) in implementing the Programme of Action and called for the speeding up of its implementation . They considered that high priority should be given to the early adoption of a framework agreement defining common principles to inspire national strategies in the fight against corruption. This framework agreement could be complemented, where appropriate, by future instruments of a more specific character.
29. In addition many speakers also called for an early, even parallel, adoption of a criminal law convention which is being prepared by the GMC and which provides for the coordinated criminalisation of corrupt behaviour and reinforced cooperation in the prosecution of corruption offences.
30. Ministers noted with satisfaction that work was also underway regarding the preparation of a civil law instrument - providing for access to the courts and specific remedies for victims of corruption - and a model code of conduct for public officials and expressed the hope that this work could be finalised soon.
31. Many Ministers underlined that the political commitment of States jointly and effectively to combat corruption needed to be incorporated into international instruments of a binding character. There was widespread agreement that, in order to be credible and respond to expectations, international instruments against corruption prepared in the Council of Europe would have to be coupled with an appropriate and effective follow-up mechanism.
32. Many speakers spoke in favour of the participation of non-member States of the Council of Europe in the work of the GMC and considered that such States should also be able to participate in the follow-up mechanism of instruments prepared by the GMC on an equal footing with member States of the Council of Europe. In this respect, several Ministers expressly indicated that it would be appropriate to draw inspiration from the model followed by the Financial Action Task Force, based on mutual evaluation and peer-pressure.
33. The majority of the Ministers considered that a clear link should be established between the results of the Conference and the 2nd Summit of Heads of State and Government of the Council of Europe to be held in October 1997. They welcomed the proposal to include the problem of corruption and organised crime in the agenda of the 2nd Summit. They considered that the latter would provide an opportunity to express, at the highest level possible, the political will to combat corruption and organised crime, new threats to the democratic security of Europe. Moreover, the 2nd Summit would also enable new initiatives to be launched to enhance cooperation in this field. With this in mind, Ministers underlined that consideration should be given, during the preparation of the Summit, to the best means of setting in motion a dynamic process, flexible and nonbureaucratic, aiming at more effective ways of combating corruption and organised crime. Through such a process States would improve their cooperation and assistance, promote exchanges of experience and information, participate in a mutual evaluation of compliance with commitments entered upon, and raise public awareness. In short, they would join their efforts and means in order permanently and efficiently to combat corruption and organised crime.
34. Some Ministers put forward other proposals for future action in the field of corruption and organised crime. Among them the following may be mentioned: the possible preparation of an inventory of all international instruments, the desirability of a model international criminal code which would take account of modern forms of criminality, the examination of means to promote joint action to prosecute crimes endangering the security of several legal systems.
* * *
The Deputy Secretary General wishes to pay tribute to the Czech authorities and thanked them both for the excellent organisation of the Conference and for the warm welcome extended to participants.
Resolution No 1 on the links between corruption and organised crime
1. The Ministers participating in the 21st Conference of European Ministers of Justice (Prague, 1997);
2. Having examined the report submitted by the Czech Minister of Justice on the links between corruption and organised crime and the co-report of the Hungarian Minister of Justice;
3. Concerned about the new trends in modern criminality and, in particular, by the organised, sophisticated and transnational character of certain criminal activities;
4. Persuaded therefore that the fight against organised crime necessarily implies an adequate response to corruption;
5. Emphasising that corruption represents a major threat to the Rule of Law, democracy, human rights, fairness and social justice, hinders economic development, and endangers the stability of democratic institutions and the moral foundations of society;
6. Convinced that a successful strategy to combat corruption and organised crime requires a firm commitment by States to join their efforts, share experience and take common action;
7. Recognising that raising public awareness and promoting ethical values, in particular through education, are effective means of preventing corruption and organised crime;
8. Welcoming the adoption by the Committee of Ministers of the Council of Europe, in November 1996, of the Programme of Action against Corruption, following the recommendations of the 19th Conference of European Ministers of Justice (Valletta, 1994)
9. Recalling in this respect the importance of the participation of non-member States in the Council of Europe's activities against corruption and organised crime and welcoming their valuable contribution to the implementation of the Programme of Action against Corruption;
10. Bearing in mind that the Heads of State and Government of the Council of Europe will be addressing the issue of organised crime and corruption, insofar as they constitute a threat to democratic stability and security in Europe, at their Second Summit to be held in Strasbourg, on 10 and 11 October 1997;
RECOMMEND THE COMMITTEE OF MINISTERS TO:
1. Call for a speedy ratification, by the States which have not yet done so, of the European conventions on international co-operation in criminal matters and, in particular, of the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (ETS 141);
2. Review and update the Council of Europe's instruments in the field of international co-operation in criminal matters, in order to take due account of the new demands to combat organised crime and corruption;
3. Strengthen the action of the Council of Europe against corruption and organised crime, taking into account the work already accomplished and under way in other international fora, in particular European Union, United Nations and OECD, and promoting the coordination of this action with these Organisations.
4. Support the work undertaken by the European Committee on Crime Problems (CDPC), the European Committee on Legal Co-operation (CDCJ) and the Multidisciplinary Group on Corruption (GMC) aiming at the elaboration of international instruments against corruption;
5. Support the work undertaken by the CDPC relating to:
- the legal and criminological aspects of organised crime with a view to facilitating the approximation of corresponding national qualifications in criminal law, the divergence of which greatly hampers international co-operation, and
- computer and cyber-crime, with a view to facilitating the approximation of corresponding national qualifications in criminal law and to providing for efficient means of investigation of offences committed through the use of modern information technology;
6. Provide, jointly with the European Community, for the continuation and further development of the “Octopus” Programme, by adopting a multidisciplinary approach to the co-operation and expertise needed by States in transition, in order to strengthen their legislation, law enforcement practices and institutions of democratic society;
7. Implement as soon as possible the programme of evaluation of anti-money laundering measures in member States of the Council of Europe which are not covered by the Financial Action Task Force (FATF) procedures;
8. Speed up the implementation of the Programme of Action against Corruption.
9. With this in mind, intensify the efforts with a view to an early adoption of:
- a framework agreement defining common principles in the fight against corruption to be implemented through national legislation and complemented, where appropriate, by additional international instruments and structures,
- a criminal law convention providing for the coordinated criminalisation of corruption offences and for enhanced cooperation in the prosecution of such offences;
10. Pursue the work concerning the preparation of an international civil law instrument - dealing, inter alia, with compensation for damage resulting from corruption - as well as the preparation of a model code of conduct for public officials.
11. Ensure that the relevant international instruments to be prepared provide for an effective follow-up mechanism open to member States and non-member States of the Council of Europe on an equal footing;
12. Consider, in the framework of the preparation of the Second Summit of Heads of State and Governments of the Council of Europe, to be held in Strasbourg on 10 and 11 October 1997, the best means of promoting a dynamic process towards effectively preventing and combating organised crime and corruption.
Resolution No 2
The Ministers participating in the 21st Conference of European Ministers of Justice (Prague, 1997),
Aware of the advantage of arranging personal contacts between the Ministers responsible for their governments' policy in the legal field in order to foster the progress of cooperation in this area in Europe;
EXPRESS the warmest thanks to the Czech Government for the excellent organisation of the 21st Conference in Prague and for its kind hospitality.
Proposal by the Russian Federation
1. To devise an inventory of existing international legal frameworks on combating organised crime and corruption with a view to developing an updated strategy and methodology for countering those dangerous phenomena.
2. To consider a transition from mutual legal information to international legal harmonisation.
3. To establish an International Investigation and Action Task Force, whenever appropriate, to prosecute crimes involving the security of many countries.
4. The GMC should consider the following activities as a matter of priority :
a) extent and modalities of waiving bank and commercial secrets
b) political corruption
c) extent and limitations of immunity for government officials and members of Parliament
5. To study the corruption related to the privatisation of property and the award of public contracts.
6. To consider protection arrangements for witnesses and victims in foreign countries.