A/HRC/40/59
the Human Rights Council Advisory Committee which, in its 2015 report, recommended
that the special procedures of the Council should consider paying attention to the linkage
between corruption and human rights (A/HRC/28/73, para. 52).
9.
More recently, in its resolution 37/19, the Human Rights Council recognized the
importance of understanding the interrelation between corruption and torture or illtreatment and invited the Special Rapporteur and other relevant special procedures to take
this question into account in their future work. In response to this invitation, the Special
Rapporteur submits the present report, in which he specifically examines the relationship
between corruption and torture or ill-treatment, outlines the predominant patterns of
interaction between the two phenomena and offers recommendations for States with a view
to strengthening the protection against torture and ill-treatment in contexts where such
abuse is linked to corruption.
10.
Building on the work undertaken by his predecessors and other mechanisms, the
Special Rapporteur conducted extensive research and broad stakeholder consultations with
experts, government representatives, international organizations and civil society
organizations, including through a general call for submissions in response to a thematic
questionnaire posted on the website of the Office of the United Nations High Commissioner
for Human Rights (OHCHR). The present report reflects the resulting observations,
conclusions and recommendations of the Special Rapporteur.
A.
Basic characteristics of corruption, torture and ill-treatment
1.
Corruption
11.
The United Nations Convention against Corruption, which has been ratified by 185
States, provides the key normative framework for the prevention of corruption 4 and
enumerates 10 specific offences which States parties shall, or shall consider to, criminalize
within their jurisdiction. The offences set out in the Convention, some of which can also be
committed by private actors, most notably include bribery, embezzlement, misappropriation
or other diversion of property, trading in influence, abuse of function, illicit enrichment,
concealment or laundering of the proceeds of crime and obstruction of justice. However,
neither this treaty nor any other international instrument provides a generic and universally
recognized definition of corruption.
12.
A widely used understanding of corruption proposed by Transparency International
refers to “the abuse of entrusted power for private gain”. While a good starting point, this
conceptualization of corruption may be insufficiently specific for the purposes of the
criminal law and, at the same time, warrants expansion to capture, for example, the abuse of
power that is appropriated rather than “entrusted”, or the abuse of power for an undue
advantage which may not result in “private” gain but may unduly benefit a public entity.
The Subcommittee on Prevention of Torture in its report focusing on the context of
4
4
Commissioner for Human Rights (OHCHR) and Geneva Academy, Human Rights and Countering
Corruption (2016).
See also United Nations Convention against Transnational Organized Crime; African Union
Convention on Preventing and Combating Corruption (2003); Inter-American Convention against
Corruption (1996); Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions of the Organization for Economic Cooperation and Development (1997);
Criminal Law Convention on Corruption (1999) and Additional Protocol thereto (2003), and Civil
Law Convention on Corruption (1999) of the Council of Europe; Convention drawn up on the basis of
Article K.3 of the Treaty on European Union, on the protection of the European Communities’
financial interests (1995); Convention drawn up on the basis of Article K.3 of the Treaty on European
Union, relating to extradition between the Member States of the European Union (1996); Convention
drawn up on the basis of Article K.3 (2) (c) of the Treaty on European Union on the fight against
corruption involving officials of the European Communities or officials of Member States of the
European Union (1997); and Southern African Development Community Protocol against Corruption
(2001). See the analysis provided in Jan Wouters, Cedric Ryngaert and Ann Sofie Cloots, “The
international legal framework against corruption: achievements and challenges”, Melbourne Journal
of International Law, vol. 14, No. 1 (June 2013).