Report No. 258

D. E1 Salvador35

35 The information on E1 Salvador has been taken from the Executive summary on E1 Salvador, Note by the Secretariat, Fifth Session of the Implementation Review Group, Conference of the States Parties to the United Nations Convention Against Corruption, UN Doc. No. CAC/COSP/IRG/I/2/1/Add.22 (2013).

3.5.1 E1 Salvador signed the UNCAC in 2003 and ratified it in 2004. On ratification, international treaties become a part of the domestic law of El Salvador and are directly applicable. The anti-corruption institutions in the country include the Office of the Under-Secretary for Transparency and Prevention of Corruption which is attached to the Office of the President of the Republic, the Office of the Attorney General that houses a unit that specialises in the combating of corruption, the Financial Investigation Unit, which is attached to the Office of the Attorney General, the Government Ethics Tribunal, the Court of Audit, the Office of the Superintendent of the Financial System, the Coordinating Commission for the Judiciary and lastly the Executive Technical Unit of the Judiciary.

3.5.2 The offence of active bribery of national public officials under clause (a) of Article 15 of the UNCAC is penalised under article 335 (on active bribery) and article 310 (on malfeasance) of the Criminal Code of E1 Salvador. Persons who serve in legislative or judicial entities are not included within the definition of a "public official" as set out under article 39 of the Criminal Code. These provisions also do not mention any advantage or benefit for third parties.

3.5.3 In the context of passive bribery of national public officials under clause (b) of Article 15 of the UNCAC, the Criminal Code criminalises the acceptance of a bribe in exchange for malfeasance (article 330), acceptance of a bribe in exchange for abuse of functions (article 331) and extortion (article 327). Advantages to third parties are again excluded from the purview of this offence.

3.5.4 Active bribery of foreign public officials and officials of public international organisations under paragraph 1 of Article 16 of the UNCAC are covered under article 335A of the Criminal Code that deals with transnational bribery. Till date there have been no prosecutions for transnational bribery in El Salvador. The offence of passive bribery under paragraph 2 of Article 16 of the UNCAC is not covered under any legislation in the country.

3.5.5 In the context of jurisdiction, E1 Salvador exercises its jurisdiction over most of the circumstances referred under Article 42 of the UNCAC. However there exists a lack of clarity on the exercise of its jurisdiction over (1) offences of corruption committed by one of its nationals abroad, (2) participation, preparation, attempt and other acts committed outside its territory in pursuance of money-laundering, (3) offences committed against a State Party to the UNCAC, and (4) offences committed by a foreign national who is present in its territory.

The domestic laws of El Salvador also do not provide for a mechanism for consultation with the competent authorities of other States Parties as required under Article 42 of the UNCAC. The dual criminality is required for the purpose of extradition.