Self-assessment checklist on the implementation of the United Nations Convention against Corruption Assessment Name: Federal Ministry of Justice Country: Germany Create Date: 06.08.2007 Assessor: korte-ma Comments: Deadline for submission of the checklist: 15 August 2007 Completed checklists should be sent to: Crime Conventions Section Division for Treaty Affairs United Nations Office on Drugs and Crime Vienna International Centre PO Box 500 A-1400 Vienna, Austria Attn: Giovanni Gallo Telephone: + (43) (1) 26060-5179 Telefax: + (43) (1) 26060-75179 E-mail: uncac.cop@unodc.org
II. Preventive measures (chapter II) A. Article 5 Preventive anti-corruption policies and practices 1. Paragraph 1 of article 5 (Policies preventive of corruption) Established anti-corruption concepts on the federal level (e.g. Direcitive on preventing corruption, public service law, disciplinary laws, criminal law); corresponding concepts and policies on the Länder level and in the economy. a) Federal Government Directive concerning the Prevention of Corruption in the Federal Administration of 30 July 2004 with Anti-Corruption Code of Conduct (Annex 1) and Guidelines for Supervisors and Heads of Public Authorities/Agencies (Annex 2). Recommendations on the Directive. b) General administrative Regulation to promote activities by the Federal Government through contributions from the private sector (sponsoring, donations and other gifts) of 7 July 2003. c) Circular on the Ban on Accepting Rewards and Gifts in the Federal Administration of 8 November 2004. B. Article 6 Preventive anti-corruption body or bodies 2. Paragraph 1 of article 6 (Anti-corruption body or bodies) Federal Level: Federal Ministry of the Interior - Devision "Prevention of corruption".länder and local level: Corresponding offices or bodies. 3. Paragraph 2 of article 6 (Independent status, resources and trained staff for anti -corruption body or bodies) The Devision "Prevention of Corruption" is not totally independet. But the necessary independence to enable it to carry its functions effectively and free from any undue influence is granted. Page 2 of 19
C. Article 9 Public procurement and management of public finances 4. Subparagraph 1 (a) of article 9 (Systems of procurement designed to prevent corruption) a) For contracts above the thresholds of the EU Public Procurement Directives: fourth chapter (Articles 97 to 129) of the German Antitrust Act (Gesetz gegen Wettbewerbsbeschränkungen) and implementing procurement regulations (Verdingungsordnungen). b) For contracts below the thresholds: Article 30 Act on the Budgetary Principles (Haushaltsgrundsätzegesetz), Article 55 of the Federal Budgetary Regulations (Bundeshaushaltsordnung) and corresponding provisions of the States (Länder) and implementing procurement regulations (Verdingungsordnungen). 5. Subparagraph 1 (b) of article 9 (Establishment of conditions for participation in public procurement) - see answer to question 4-6. Subparagraph 1 (c) of article 9 (Criteria for public procurement decisions) - see answer to question 4 - Page 3 of 19
7. Subparagraph 1 (d) of article 9 (System of domestic review of public procurement decisions) a) For contracts above the thresholds: Articles 102 to 129 of the German Antitrust Act (Gesetz gegen Wettbewerbsbeschränkungen), in accordance with the EU remedies directives. b) For contracts below the thresholds: no formal procedure, but possibility to issue informal complaints. 8. Subparagraph 1 (e) of article 9 (Measures regarding public procurement personnel) Internal rules and mechanisms of the contracting authorities, such as rotation of the personnel in charge; education; separation of the personnel in charge of the actual purchasing from the personnel in charge of the public task to be performed; joint purchasing by specialised bodies etc. 9. Subparagraph 2 (a) of article 9 (Transparency and accountability in public finances) Articles 1 et seqq., 11 et seqq, 70 et seqq. and 88 et seqq. Federal Budgetary Regulations (Bundeshaushaltsordnung). 10. Subparagraph 2 (b) of article 9 (Timely reporting on revenue and expenditures) - see answer to question 9 - Page 4 of 19
11. Subparagraph 2 (c) of article 9 (Accounting and auditing standards) - see answer to question 9-12. Subparagraph 2 (d) of article 9 (Systems of risk management and internal control) - see answer to question 9-13. Subparagraph 2 (e) of article 9 (Corrective action upon failure to comply) - see answer to question 9-14. Paragraph 3 of article 9 (Prevention of falsification of public expenditure records) Public officials due diligence, Articles 263, 266, 267 and 283b Criminal Code (Strafgesetzbuch). Page 5 of 19
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III. Criminalization and law enforcement (chapter III) A. Article 15 Bribery of national public officials 15. Subparagraph (a) of article 15 (Active bribery of a national public official) (P) Yes, in part Articles 11 (1) No. 2, 108e, 333 to 336 Criminal Code (Strafgesetzbuch); minor amendments are necessary, applicable draft laws are prepared and under consideration by Parliament. Which of the following forms of technical assistance, if available, would assist your country with adopting the measures described above? (Check all the answers that apply) (i) No assistance would be required Are any of the forms of technical assistance previously mentioned already provided? (Check one answer) 16. Subparagraph (b) of article 15 (Passive bribery of a national public official) (P) Yes, in part Articles 11 (1) No. 2, 108e, 331, 332, 335 and 336 Criminal Code (Strafgesetzbuch); minor amendments are necessary; applicable draft laws are prepared and under consideration by Parliament. Which of the following forms of technical assistance, if available, would assist your country with adopting the measures described above? (Check all the answers that apply) (i) No assistance would be required Are any of the forms of technical assistance previously mentioned already provided? (Check one answer) B. Article 16 Bribery of foreign public officials and officials of public international organizations 17. Paragraph 1 of article 16 (Active bribery of a foreign public official or an official of a public international organization) Page 7 of 19
Articles 334 to 336 Criminal Code (Strafgesetzbuch) in connection with the EU Bribery Act (EU- Bestechungsgesetz) and the Act on Combating Bribery of Foreign Public Officials in International Business Transations (Gesetz zur Bekämpfung internationaler Bestechung). 18. Paragraph 2 of article 16 (Passive bribery of a foreign public official or an official of a public international organization) Articles 332, 335 and 336 Criminal Code (Strafgesetzbuch) in connection with EU Bribery Act (EU- Bestechungsgesetz); new draft law proposes to extend the scope. C. Article 17 Embezzlement, misappropriation or other diversion of property by a public official 19. Embezzlement, misappropriation or other diversion of property by a public official (article 17) Articles 246, 263 and 266 Criminal Code (Strafgesetzbuch). D. Article 23 Laundering of proceeds of crime 20. Subparagraph 1 (a) (Criminalization of conversion or transfer of property proceeds of crime) Page 8 of 19
Article 261 Criminal Code (Strafgesetzbuch). 21. Subparagraph 1 (b) of article 23 (Criminalization of acquisition, possession or use of property proceeds of crime) Article 261 Criminal Code (Strafgesetzbuch). 22. Subparagraphs 2 (a), (b), (c) and (e) of article 23 (Predicate offence in the laundering of proceeds of crime) (P) Yes, in part Article 261 Criminal Code (Strafgesetzbuch); minor amendments are necessary; a draft law is under consideration by Parliament. Which of the following forms of technical assistance, if available, would assist your country with adopting the measures described above? (Check all the answers that apply) (i) No assistance would be required Are any of the forms of technical assistance previously mentioned already provided? (Check one answer) 23. Subparagraph 2 (d) of article 23 (Predicate offence in the laundering of proceeds of crime) Has your country furnished copies of its laws that give effect to article 23 and of any subsequent changes to such laws or a description thereof to the Secretary-General, as described above? (Check one answer) Please submit such copies with the present checklist to the United Nations Office on Drugs and Crime or provide a description of such laws below. Germany will provide copies of its laws that give effect to this article at the time Germany deposits its instrument of ratification. Page 9 of 19
E. Article 25 Obstruction of justice 24. Subparagraph (a) of article 25 (Criminalization of use of inducement, threats or force to interfere with witnesses or officials) Articles 160, 223, 240, 334, 336, 339 in connection with 26, 343 Criminal Code (Strafgesetzbuch). 25. Subparagraph (b) of article 25 (Criminalization of interference with actions of judicial or law enforcement officials) Articles 113, 223, 240, 241, 257 and 258 Criminal Code (Strafgesetzbuch). Page 10 of 19
IV. International cooperation (chapter IV) A. Article 44 Extradition 26. Subparagraph 6 (a) (Taking the Convention against Corruption as the legal basis for cooperation on extradition) Has your country notified the Secretary General, as described above? (Check one answer) Please provide the requisite information below: Germany does not make extradition conditional on the existence of a treaty. B. Article 46 Mutual legal assistance 27. Paragraph 13 of article 46 (Designation of a central authority to receive requests for mutual legal assistance) Has your country notified the Secretary General, as described above? (Check one answer) Please provide the requisite information below: Germany will notify the central authority designated - it will be the Federal Office of Justice - at the time Germany deposits its instrument of ratification. Page 11 of 19
V. Asset recovery (chapter V) A. Article 52 Prevention and detection of transfers of proceeds of crime 28. Paragraph 1 of article 52 (Verification of identity and enhanced scrutiny of customers of financial institutions) (P) Yes, in part Articles 2, 3, 4, 6 and 8 Money Laundering Act (Geldwäschegesetz), Article 25a Banking Act (Kreditwesengesetz). Which of the following forms of technical assistance, if available, would assist your country with adopting the measures described above? (Check all the answers that apply) (i) No assistance would be required Are any of the forms of technical assistance previously mentioned already provided? (Check one answer) 29. Subparagraph 2 (a) of article 52 (Issuance of advisories to financial institutions) Directives issued by the Federal Banking Supervisory Authority (BAFIN). 30. Subparagraph 2 (b) of article 52 (Notifying financial institutions of identity of account holder for enhanced scrutiny) Directives issued by Federal Banking Supervisory Authority (BAFIN). 31. Paragraph 3 of article 52 (Implementation of measures to require financial institutions to maintain adequate records) Page 12 of 19
Article 154 (2) Fiscal Code (Abgabenordnung), Article 9 Money Laundering Act (Geldwäschegesetz). 32. Paragraph 4 of article 52 (Prevention of establishment of banks having no physical presence or affiliation to a registered financial group) In Germany the establishment of shell banks is not permitted (Article 33 (1) No. 6 Banking Act [Kreditwesengesetz]). Moreover German financial institutions are not permitted to have a shell bank as correspondent bank (Directive by Federal Banking Supervisory Office [BAFIN]). 33. Paragraph 5 of article 52 (Establishment of financial disclosure systems for public officials) Which of the following forms of technical assistance, if available, would assist your country with adopting the measures described above? (Check all the answers that apply) (i) No assistance would be required Are any of the forms of technical assistance previously mentioned already provided? (Check one answer) 34. Paragraph 6 of article 52 (Requiring public officials to report foreign financial accounts) Which of the following forms of technical assistance, if available, would assist your country with adopting the measures described above? (Check all the answers that apply) (i) No assistance would be required Are any of the forms of technical assistance previously mentioned already provided? (Check one answer) Page 13 of 19
B. Article 53 Measures for direct recovery of property 35. Subparagraph (a) of article 53 (Institution by a State party of measures to permit another State party to initiate civil action in its courts) In Germany States as other legal persons have the right to initiate civil actions in German courts (Article 50 Civil Procedure Act [Zivilprozessordnung]). 36. Subparagraph (b) of article 53 (Institution by a State party of measures to permit its courts to order payment of compensation or damages) In Germany courts are permitted to order bribers and other persons who have committed offences established with this Convention to pay compensation or damages to another State Party that has been harmed by such offence. 37. Subparagraph (c) of article 53 (Institution by a State party of measures to permit its courts or competent authorities to recognize another State party s claim of legitimate ownership of property proceeds of crime) Article 73 (1) sentence 2 Criminal Code (Strafgesetzbuch). Page 14 of 19
C. Article 54 Mechanisms for recovery of property through international cooperation in confiscation 38. Subparagraph 1 (a) of article 54 (Institution by a State party of measures to permit its competent authorities to give effect to orders of confiscation issued by courts of another State party) Articles 48 et seqq Act on International Mutual Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen). 39. Subparagraph 1 (b) of article 54 (Confiscation of property of foreign origin) Article 261 (1), (7) and (8) Criminal Code (Strafgesetzbuch). 40. Subparagraph 1 (c) of article 54 (Confiscation without a criminal conviction of property acquired through corruption) Article 76a Criminal Code (Strafgesetzbuch) - not in cases in which the offender cannot be prosecuted by reason of death -, Article 66 Act on International Mutual Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen). 41. Subparagraph 2 (a) of article 54 (Freezing or seizure of property upon freezing or seizure order) Page 15 of 19
Article 58 (3) Act on International Mutual Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen). 42. Subparagraph 2 (b) of article 54 (Freezing or seizure of property upon request providing sufficient grounds) - see answer to question 41-43. Subparagraph 2 (c) of article 54 (Preserving property for confiscation) - see answer to question 41 - D. Article 55 International cooperation for purposes of confiscation 44. Paragraph 1 of article 55 (Submission of request for order of confiscation to competent authorities) Articles 48 et seqq Act on International Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen). Page 16 of 19
45. Paragraph 2 of article 55 (Identification, tracing, freezing or seizure of proceeds of crime for eventual confiscation) - see answer to question 44-46. Paragraph 3 of article 55 (Contents of request for order of confiscation) In Germany the practise is in line with these provisions. E. Article 57 Return and disposal of assets 47. Paragraph 1 of article 57 (Disposal of confiscated property) Article 66 Act on International Mutual Assistance in Criminal Matters (Gesetz über die internationale Rechtshilfe in Strafsachen). 48. Paragraph 2 of article 57 (Return of confiscated property upon request by another State party) Page 17 of 19
- see answer to question 47-49. Paragraph 3 of article 57 (Return of property confiscated in accordance with article 55 of the Convention against Corruption) - see answer to question 47-50. Paragraph 4 of article 57 (Deduction of expenses incurred in return or disposal of confiscated property) Consultations on the deduction of reasonable expenses are possible. 51. Paragraph 5 of article 57 (Conclusion of agreements on final disposal of confiscated property) Agreements on a case-by-case basis are possible. Page 18 of 19
VI. Other information A. Other information 52. Other information Please provide any other information you believe is important for the Conference of the States Parties to the United Nations Convention agaisnt Corruption to consider at this stage regarding aspects of, or difficulties in, implementing the Convention other than those mentioned above Page 19 of 19