The Fight Against Corruption

The Fight Against Corruption

Ranieri Razzante (University of Bologna, Italy)
DOI: 10.4018/978-1-7998-1286-9.ch010

Abstract

Corruption, generally speaking, can be defined as “abuse of power for private gain” that can be classified as grand, petty, and political, depending on the amounts of money lost and the sector where it occurs. Therefore, it is a phenomenon that compromises rule of law, weakens public institutions and democracy, impacting negatively on productivity and economy. Indeed, because of all these implications, it can be analyzed stressing social, economic, politic, or legal perspectives. These features have allowed experts from different fields to investigate the phenomenon, which does not exclusively concern conduct punishable by criminal law, but also conduct that can be considered just an “expression of maladministration” in both the public and private sectors. This chapter seeks to address the legal aspect of corruption. In particular, it overviews the main anti-corruption measures international community has adopted in recent years. By showing the evolution and steps that led to the actual treaty situation, the Authors offer a hint on the goals achieved and those to be achieved.
Chapter Preview
Top

Introduction

First of all, it must be said that – unfortunately - bribery is a widespread phenomenon.

It raises serious moral, economic and political concerns, undermines good governance, hinders development and distorts competition. It erodes justice, undermines human rights and is an obstacle to the relief of poverty. It also increases the cost of doing business, introduces uncertainties into commercial transactions, increases the cost of goods and services, diminishes the quality of products and services, which may lead to loss of life and property, destroys trust in institutions and interferes with the efficient operation of markets.

Governments – as we wil see - have made progress in addressing bribery through international agreements such as the Organization for Economic Co-operation and Development’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention against Corruption and through their national laws. In most jurisdictions, it is an offence for individuals to engage in bribery and there is a growing trend to make organizations as well as individuals liable for bribery.

Nevertheless, the law alone is not sufficient to solve this problem: corruption is also a global phenomenon, indeed, over the past two decades, large improvements have been rare, if progress is made it is thanks to continuous and difficult work over decades. Drawing on Rose-Ackerman and Palifka, corrupt acts include the following actions (among others):

  • Payment of bribes (offered or extorted) to get public services or to evade taxes;

  • Embezzlement and public service fraud, even if not involving bribes (for example, officials may steal money from investment funds);

  • Nepotism, or cronyism to benefit a particular family or group;

  • Buying influence and conflicts of interest, when individuals take advantage of their position in government to extract favors or personal benefits from a government decision. Kleptocracy is the most extreme form of state capture, in which the state is managed to maximize the personal wealth of its leaders.

When corrupt activities are pervasive and deeply concealed in the public sector, it can have significant negative impacts in other areas, including regulatory and judicial State functions. Beyond the leakage of funds, the effects include the negative impact on the quality of public policies; wasted talent and effort in the private sector, to which economic revenues and works are denied in favors to individuals and firms engage in unproductive activities; the curb of economic growth (Krueger, 1974, pp. 291-303).

There are essentially three rationales that underpin criminalization of corruptive behavior and the fight against public corruption in general, both in a domestic and an international context:

  • The need to uphold the integrity of the public administration and the confidence of citizens in the public administration;

  • Safeguard the proper functioning of the public administration;

  • The necessity to safeguard the transparent functioning of the market and fair competition.

The internationalization of the fight against corruption should of course in the first place be explained by reference to the internationalization of the phenomenon of corruption itself, that is that an increasing number of corruption cases involves a foreign element (International Monetary Fund, 2019, pp. 39-41). The Multidisciplinary Group Against Corruption, which was set up by the Council of Europe’s Committee of Ministers in 1994, identified four parameters which are important in distinguishing corruption cases: the persons involved; the service rendered; the undue advantage that is offered; circumstances in which that advantage is offered. Each of these parameters may involve a foreign element, which allows qualifying a corruption case as international, or transnational (Jaeger, 1988, p. 163).

Key Terms in this Chapter

AUCPCC: The African Union Convention on Preventing and Combating Corruption, adopted by the AU Assembly in July 2003, is a shared roadmap for States to implement governance and anti-corruption policies and systems on a national and regional level.

GRECO: The Group of States against Corruption established in 1999 with an agreement of 17 member States of the Council of Europe as an anti-corruption control body, that helps to identify deficiencies in national anti-corruption policies, prompting the necessary legislative, institutional and practical reforms.

Corruption: Dishonest or illegal behavior that can occur both in public and in private sector and, if pervasive, it can have significant negative impacts in other areas, including the negative impact on the quality of public policies.

OECD Convention: The Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which issued the first global anti-corruption measures based on a mechanism of monitoring and supporting towards EU Member States, but with an application field limited to active corruption of foreign officials.

FCPA: The US Foreign Corrupt Practices Act of 1977, the first measure that introduce corporate liability, responsibility for third parties and extraterritoriality for corruption offences.

ANAC: The Italian’s Anti-Corruption National Authority with administrative functions in the sector of corruption prevention in Public Administrations, which can intervene with inspection, regulation and sanction.

UNAC: The United Nations Convention against Corruption, negotiated on October 2003, is the universal anti-corruption instrument for developing a comprehensive response to a global problem.

Complete Chapter List

Search this Book:
Reset