Opinion / Op-Ed Contributors

Use UN rules to seize corrupt fugitives at large

By Shao Shaping (China Daily) Updated: 2015-04-16 07:46

Use UN rules to seize corrupt fugitives at large

A total of 680 fugitives suspected of economic crimes have been repatriated to China as a result of the transnational "Fox Hunt" operation launched in July. [Photo/IC]

The "Fox Hunt" to bring back corrupt officials who have fled abroad continues after its big success last year. But China can add more teeth to its overseas anti-corruption drive by applying the rules of the United Nations Convention against Corruption.

Corruption is a global problem. Hence, to fight it we need international cooperation. It is this principle that gave birth to the Convention in 2003. Chapters 4 and 5 of the Convention stipulate the principles of global legal cooperation, including extradition, mutual legal assistance, cooperation in law enforcement, joint investigation and asset recovery, which could boost China's cross-border anti-corruption campaign.

Article 43 of the Convention says: "In matters of international cooperation, whenever dual criminality is considered a requirement, it shall be deemed fulfilled irrespective of whether the laws of the requested state party place the offense within the same category of offense or denominate the offense by the same terminology as the requesting state party, if the conduct underlying the offense for which assistance is sought is a criminal offense under the laws of both states parties." Such a regulation can effectively solve the problem of double standards for the same crime in different legal systems, which could influence global judicial assistance.

And Article 44 says: "Each of the offenses to which this article applies shall be deemed to be included as an extraditable offense in any extradition treaty existing between states parties ... If a state party that makes extradition conditional on the existence of a treaty receives a request for extradition from another state party with which it has no extradition treaty, it may consider this Convention the legal basis for extradition in respect of any offense to which this article applies."

The Convention's most significant part on extradition is that the principle of double criminality cannot be applied. A state party whose law so permits may grant the extradition of a person for any of the offenses covered by the Convention that are not punishable under its own domestic law.

According to Article 51: "The return of assets pursuant to this chapter is a fundamental principle of this Convention, and state parties shall afford one another the widest measure of cooperation and assistance in this regard."

The Convention stipulates many measures to fight corruption. To effectively use its rules, Chinese leaders have to strengthen the rule of law in the country. The problem is that we are not familiar with some new international legal rules and still don't have corresponding anti-corruption domestic rules. These drawbacks will hinder extensive, stable global cooperation in the fight against corruption. For effective international legal cooperation to fight corruption, we must know what the new international anti-corruption laws are and apply them suitably to the laws at home.

Take the liability of legal persons as an example. Subject to the legal principles of the state party, the liability of legal persons may be criminal, civil or administrative. Such a liability should be without prejudice to the criminal liability of the natural persons who have committed offenses. Each state party should, in particular, ensure that legal persons held liable in accordance with this article are subject to effective, proportionate and dissuasive criminal or non-criminal sanctions, including monetary sanctions.

Crime and liability of legal persons in the Convention are the new aspects of international judicial assistance and cooperation. The diversity (criminal, civil or administrative) and double punishment (for legal and natural persons) for the liability of legal persons challenge traditional international criminal judicial assistance and cooperation. If China doesn't have specific rules on the crimes committed by and liability of legal persons, it cannot seek full international criminal judicial assistance and cooperation in the fight against corruption.

This convention clearly requires each state party to take the necessary measures, including legislative and administrative, in accordance with the fundamental principles of its domestic laws to ensure the implementation of its obligations under the Convention. As a signatory to the Convention, China should incorporate the rules of the Convention into domestic laws. This will not only help it perform the duty of a signatory party, but also boost its international cooperation in the fight against corruption.

The author is a professor of law at Renmin University of China.

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