A/HRC/28/73
bribery”, in order to avoid it being misunderstood as implying that the briber has taken the
initiative and the recipient is a passive victim. It is more useful to determine which party is
the victim in a corrupt setting. In many cases, this can be determined by examining the
distribution of power between the parties to the corrupt agreement. Typically, the less
powerful or even oppressed party will be the victim. This is reflected in the distinction
between “petty corruption”, which takes the form of a low-ranking public official taking a
bribe for doing something that is already required by law or for not doing something that is
prohibited by law, and “grand corruption”, which is carried out by high-level officials who
seek payment for exercising their discretionary powers. 18
IV. What is the value in linking corruption with its negative
impact on the enjoyment of human rights?
24.
Corruption is mainly dealt with from a criminal perspective.19 Anti-corruption
measures — in the national and the international contexts — primarily concentrate on
prosecution of the related criminal offences. International anti-corruption treaties encourage
or even oblige States parties to take steps within their legal order to criminalize certain
kinds of behaviour defined as corruption. However, discussing the negative impact of
corruption on the enjoyment of human rights should not be seen as jeopardizing any effort
to combat corruption by means of the criminal law. Corruption is a crime. Impunity in cases
of corruption must end. In that sense, a human rights perspective to combating corruption
and its effects is complementary to the criminal law approach.
25.
However, the United Nations Convention against Corruption and regional
conventions against corruption include preventive measures (e.g. accountability,
transparency, and access to public information) that States parties are obliged to take.
Without disregarding those efforts, anti-corruption measures are focused mainly on the
consideration of criminal offences, the necessary sanctions, and international cooperation in
prosecution. The situating of anti-corruption measures within the criminal law narrows the
focus to the perpetrators. The purpose of criminal proceedings is — broadly speaking — to
determine the person responsible for the offence. Focusing criminal proceedings on the
perpetrator can lead to a loss of focus on the victim of the corruption. The position of those
affected by corruption is not very strong in criminal proceedings. Furthermore, the criminal
approach does not offer ways of addressing the structural problems caused by corruption. It
is concentrated, by its very nature, on a single offence, and typically cannot address the
collective and general effects of corruption referred to in the present report.
26.
Corruption can also be combated by applying remedies from private law. This
approach is quite common among States. In international law, the Civil Law Convention on
Corruption, which was adopted by the Council of Europe in 1999, 20 deals, inter alia, with
compensation for damage, liability, the validity of contracts and the protection of
employees, and therefore focuses on the consequences of corruption in private law.
Furthermore, the United Nations Convention against Corruption21 requires each State party
to take measures to address consequences of corruption, for example considering corruption
18
19
20
21
See, for example, the statement by Nihal Jayawickrama in the report on the United Nations
conference on anti-corruption, good governance and human rights, A/HRC/4/71, p. 8.
Leonie Hensgen, “Corruption and human rights – making the connection at the United Nations”, in
the Max Planck Yearbook of United Nations Law, Armin von Bogdandy and Rüdiger Wolfrum, eds.,
vol. 17, pp. 197��219 (200) (Brill and Nijhoff, 2013).
Civil Law Convention against Corruption, ETS No. 174.
Adopted by the General Assembly in its resolution 58/4 of 31 October 2003.
9
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