Report No. 258
2.11 Articles 26 (Liability of legal persons), 27 (Participation and attempt), 28 (Knowledge, intent and purpose as elements of an offence), 29 (Statute of limitations) and 30 (Prosecution, adjudication and sanctions) contain procedural and substantive elements of establishing and penalising an offence under the UNCAC.26 Recourse to these provisions is also relevant in the interpretation for effective prosecution under Article 16. Specifically, Article 26 of the UNCAC codifies the liability for legal entities (for e.g. companies) that is consistent with the legal principles under the domestic law of States.
The application of this liability is without prejudice to the criminal liability applicable to natural persons.27 It extends to criminal, civil or administrative penalties.28 Article 27 calls upon States Parties to criminalise not only the conduct but also the actions undertaken in furtherance of such conduct (i.e. aiding and abetting) under the UNCAC. Under Article 28 of the UNCAC, the elements of an offence, namely knowledge, intent and purpose must be established in a manner that takes into account inferences from the objective factual circumstances as well.
Under Article 29, States Parties are also required to put in place long statutes of limitation for the offences established in accordance with the UNCAC. Finally, Article 30 in essence lays down the framework for prosecution, punishment and reintegration of convicted persons back into society. Some of the key issues covered include procedural safeguards, immunities and the extent of punishment.29
Paragraph 9 of Article 30 is specifically relevant in this context as it permits States Parties to apply legal defences or other legal principles controlling the lawfulness of conduct as codified under their domestic law. Therefore, defences and exceptions to the offence of foreign bribery under domestic legislation flow from this provision.
26 Legislative Guide on the UNCAC (n 8)
27 Legislative Guide on the UNCAC (n 8).
28 Legislative Guide on the UNCAC (n 8).
29 Legislative Guide on the UNCAC (n 8).
2.12 The provisions under Chapter IV on International Cooperation also provide assistance to States Parties in establishing contact with one another for the purpose of information exchange, mutual assistance and such other measures that endeavour to tackle transnational bribery under Article 16 through collaborative efforts. In this context, Article 44 on Extradition is of particular significance since it discusses the scope, procedure and conditions that operationalise extradition under the UNCAC.
In summary, the key provisions under Article 44 require States Parties to (1) establish extraditable offences in accordance with the UNCAC, provided the requirement of dual criminality is fulfilled;
(2) consider granting extradition, where their domestic law permits, for offences under the Convention even without dual criminality;
(3) consider applying Article 44 in respect several separate offences, where at least one of the offences is extraditable under Article 44 and some of those offences which are not extraditable by reason of their period of imprisonment but are related to offences established in accordance with the UNCAC;
(4) not consider corruption offences under the UNCAC as political offences, in instances where such States Parties use the Convention as a basis for extradition;
(5) conclude treaties on extradition with other States Parties, if the UNCAC does not constitute a legal basis for the purpose of extradition;
(6) consider expediting extradition procedures and simplifying evidentiary requirements relating to corruption offences under the Convention; and
(7) ensure fair treatment for persons facing extradition proceedings under article 44.
In the context of a refusal of an extradition request under Article 44, States Parties are also required to
(1) submit the case for domestic prosecution, ensure that the decision to prosecute and any subsequent proceedings are conducted with the required diligence and cooperate with the requesting State Party, if the extradition request is denied on the ground that the person is a national;
(2) consider enforcing sentences imposed under the domestic law of the requesting State, in instances where the extradition is denied for enforcement of sentences on grounds of nationality; and
(3) consult, where appropriate, the requesting State Party in order to provide it with the opportunity to present information and views on the matter, prior to the refusal of an extradition request.
2.13 India signed the UNCAC in 2005 and subsequently ratified it 2011. However, at the time of ratification, India also declared, by way of a Notification, that "international cooperation for mutual legal assistance under Articles 45 and 46 of the Convention shall be afforded through applicable bilateral Agreements", and in cases where a bilateral agreement does not cover the mutual legal assistance sought by the requesting State, it shall be provided under the Convention "on reciprocal basis".
By signing and ratifying the UNCAC, India has pledged to uphold its obligations under the Convention through the enactment of various laws on corruption.30 In this regard, Article 253 of the Constitution of India31 vests the Parliament of India with the requisite competence to enact laws in order to operationalise its obligations under the UNCAC. Further, Article 51, a directive principle, lists India's obligation to promote international peace and endeavours to uphold its international obligations and commitments.
30 For more details on the list of signatories, please se
last visited on 8th August, 2015.
31 Article 51 of the Directive Principles on State Policy under Part IV of the Constitution of India; Article 253 under Part XI of the Constitution, contains a non-obstante clause that vests the Parliament with the power to make laws for implementing India's international obligations.
2.14 Compliance with Article 16 and penalising bribery of foreign public officials and officials of public international organisations is the rationale for the present Bill. While giving shape to such a Bill, three key questions need to be considered: first, will the Bill only penalise offences contained in Article 16 (1) which is mandatory, or also offences contained in Article 16(2), which is directory?
Second, to what extent will the Bill be extra-territorial in operation thereby necessitating co-operation with foreign countries? And third, what legal defences or other legal principles controlling the lawfulness of conduct should be codified under the Bill? In order to understand various approaches taken to answering these questions as well as to develop a comparative perspective in this regard, the relevant laws of 10 selected jurisdictions are analysed briefly in the next Chapter.