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José A. Rondón (Caracas)
Tel: (58-2) 276-5111
Fax: (58-2) 264-1532
The Special Conference of the Organization of American States which drafted the Inter-American Convention against Corruption was held on 29 March 1996 in Caracas.
Among the recitals of the Convention is the acknowledgment of the international impact of corruption, which sometimes demands a coordinated effort of the States to counteract it effectively. According to Article I, the purposes of the Convention are: (i) to promote and strengthen the development of mechanisms necessary to prevent, detect, punish and eradicate corruption by each State, and (ii) to promote, facilitate and regulate cooperation between the Party-States to ensure the effectiveness of the measures and actions to prevent, punish and eradicate corruption.
Article VI describes some of the types of conduct that are considered acts of corruption. In turn, the States undertake to characterize such conduct as criminal offenses in Article VII. A new concept is the so-called "Transnational Bribe," contemplated in Article VIII of the Convention. In fact, the Party-States undertake to forbid and penalize in their respective Legislations the acts whereby any of their nationals, persons residing in their territory or companies domiciled therein, directly or indirectly offer a public official of another Party-State, any object of a monetary value or other benefits (such as gifts, favors, promises or advantages) in exchange for said official to perform or omit any action in exercising his public duties, relating to an economic or commercial transaction.
Another criminal offense sanctioned in a separate article is unlawful enrichment. In Article IX the Party-States undertake to adopt the "necessary measures to characterize as a crime in their legislations the excessive increase in the net worth of a public official with regard to his legitimate income during his term in office which cannot be reasonably justified by said official." In this regard the crime of Unlawful Enrichment is contemplated in Article 66 of the Venezuelan Law for the Safeguard of Public Patrimony, and is punished by imprisonment from 3 to 10 years. Furthermore, this has been a very questioned concept, since it puts the burden of proof on the defendant who must prove the legitimate source of his property, and the State is not obliged to prove the contrary.
Article XIII regulates extradition in the event of crimes characterized by the Party-States according to the Convention. On this matter, it should be noted that this legal instrument could be considered the legal basis for extradition by reason of said crimes, when there is no extradition treaty between the Party-States.
An important rule is contained in Article XV regarding the measures on property. According to this provision, pursuant to applicable national legislations and the relevant treaties and other agreements that may be in force among them, the Party-States agree mutually to provide the broadest assistance possible in the identification, tracking, immobilization, expropriation and seizure of property obtained or arising from the crimes characterized pursuant to this Convention, as well as the property used to commit said crimes or the proceeds thereof.
Finally, there is the provision sanctioned in Article XVI, according to which "the Party-State requested cannot refuse to provide the assistance requested by the requesting Party-State by resorting to the bank secrecy."
We are reminded that the so-called "bank secrecy" has frequently been an obstacle in the prosecution and punishment of corruption actions.
The National Law Center is a non-profit 501(c)(3) Research and Educational Corporation