Impunity Can Begin Before Prosecution

The first two articles in this series examined the macroeconomic dimension of corruption and its systemic consequences. These dimensions do not arise solely from a theoretical construction. International rules and institutions themselves attribute economic, political, social and institutional consequences to corruption that extend far beyond those resulting from isolated acts.

The European Union recognises that corruption threatens the stability and security of societies, undermines democratic institutions, the rule of law, equality and fundamental rights, and endangers the development, prosperity and sustainability of economies.

At the same time, the European Union itself places the criminal-law response at the centre of the fight against corruption. Directive (EU) 2026/1021 expressly states that “corruption is first and foremost a crime” and lays down minimum rules concerning the definition of corruption offences and their sanctions.

The combination of these two dimensions raises a fundamental problem. If the rules themselves recognise economic, institutional and social consequences of this magnitude and, at the same time, regard corruption first and foremost as a crime, it is necessary to examine how they have delimited the conduct that must be criminalised.

For three decades, the international anti-corruption architecture has developed specific criminal offences — bribery, misappropriation, trading in influence, abuse of functions and other conduct — and has established different degrees of obligation regarding their criminalisation.

This article examines the gap between the breadth of corruption and the consequences recognised by international rules themselves, on the one hand, and the perimeter of conduct whose criminalisation they require, on the other.

This criminalisation gap creates a potential space for impunity that arises before investigation, prosecution and punishment.

From recognised consequences to prosecutable conduct

Corruption has been the subject of an increasingly extensive international legal architecture for three decades. The 1996 Inter-American Convention against Corruption, the Council of Europe’s 1999 Criminal Law Convention on Corruption, the 2003 United Nations Convention against Corruption (UNCAC) and, most recently, Directive (EU) 2026/1021 have successively constructed a framework intended to prevent, prosecute and punish it.

These instruments attribute consequences to corruption that affect institutions, economies and societies. Yet when they move from diagnosing those consequences to criminal prosecution, they do not establish a single general offence of corruption.

The criminal-law architecture identifies particular manifestations and constructs specific offences around them: bribery, misappropriation, trading in influence, abuse of functions, illicit enrichment, obstruction of justice and other related conduct. Moreover, some conventions require States to criminalise certain conduct, while for other conduct they merely require States to consider criminalisation.

Two different planes therefore emerge within the normative architecture itself: on the one hand, consequences of corruption recognised in extremely broad terms; on the other, a criminal-law response constructed through the selection and delimitation of specific conduct.

The question raised by this article is not whether every negative consequence attributed to corruption should itself become a criminal offence. Consequences and criminal offences belong to different legal planes.

The question is instead whether there is correspondence between the breadth of the problem described by the rules themselves and the criminal-law perimeter they construct to combat it.

The Inter-American Convention: covered acts and other acts of corruption

The Inter-American Convention against Corruption, adopted in 1996, provides an especially clear early manifestation of this distinction.

Its preamble attributes far-reaching consequences to corruption: it undermines the legitimacy of public institutions, strikes at society, moral order and justice, and jeopardises the comprehensive development of peoples. The Convention also expresses the need to combat every form of corruption in the performance of public functions.

However, when establishing its scope, Article VI identifies particular conduct as acts of corruption: requests for or acceptance of benefits connected with the performance of public functions; offers or grants of such benefits; certain acts or omissions by public officials performed for the purpose of illicitly obtaining benefits; the fraudulent use or concealment of property derived from those acts; and different forms of participation.

But the Convention itself recognises that this catalogue does not exhaust the possible acts of corruption.

Article VI.2 expressly provides that States may, by mutual agreement, apply the Convention to “any other act of corruption not described herein”.

The distinction is particularly significant: the Convention itself recognises both acts of corruption covered by it and other acts of corruption not covered by it.

This difference becomes greater when the obligation to criminalise is examined. Article VII requires States to adopt the legislative or other measures necessary to establish as criminal offences the acts described in Article VI.1 when they have not yet done so. By contrast, Article XI, entitled “Progressive Development”, provides that States shall consider the criminalisation of other conduct.

From the beginning of the contemporary international anti-corruption architecture, two delimitations therefore appear: the normative catalogue does not encompass every act that the Convention itself acknowledges may constitute corruption, and not all conduct contemplated by the Convention is subject to the same degree of obligation to criminalise.

The Council of Europe: expansion of the criminal-law catalogue

The Council of Europe’s 1999 Criminal Law Convention on Corruption considerably expanded the range of conduct subject to criminalisation.

The Convention develops different forms of active and passive bribery involving domestic and foreign public officials, members of public assemblies, international officials, members of international parliamentary assemblies, judges and officials of international courts. It also covers the private sector, trading in influence, laundering of proceeds from corruption offences and certain accounting offences.

This represents broad coverage of categories of persons and an important process of criminal-law harmonisation.

Its breadth does not, however, alter the fundamental characteristic of the model: criminal prosecution continues to be organised through a catalogue of specifically defined offences.

Expanding the number of offences and persons covered enlarges the criminal-law perimeter, but it does not eliminate the difference between the breadth of the consequences attributed to corruption and the delimitation of the conduct whose criminalisation is required.

The Venice Commission: criminalisation and the rule of law

The Venice Commission provides, moreover, a conceptual bridge between this criminalisation problem and the rule of law.

Its Updated Rule of Law Checklist, adopted at its 145th Plenary Session on 12–13 December 2025, expressly includes among its corruption-related benchmarks the question whether corruption and corruption-related offences have been criminalised in accordance with international standards.

The question is particularly significant for this analysis because it incorporates the conformity of criminalisation with international standards among the matters examined from the perspective of the rule of law.

The Commission links corruption to arbitrariness and abuse of power and warns that it may affect the equal application of the law and undermine the foundations of the rule of law.

Its benchmarks also examine whether criminal provisions designed to preserve public integrity conform to international standards, including conduct such as trading in influence, abuse of office and breach of official duties.

The Venice Commission thus introduces a question logically prior to the effectiveness of prosecution: what corruption and corruption-related offences have been criminalised.

Only afterwards arise other questions concerning the officials covered, sanctions, the resources of anti-corruption institutions, their independence and the effective implementation of the rules.

Implementation may be inadequate, but there is a prior question: the content of what has been criminalised.

This issue is considered here only in relation to criminalisation. The remaining gaps identified by international organisations themselves in the anti-corruption architecture will be examined in the next article in this series.

UNCAC: a broader architecture, but different obligations

The 2003 United Nations Convention against Corruption is the most comprehensive international instrument in this field and makes this structure particularly visible.

UNCAC attributes to corruption consequences for the stability and security of societies, democratic institutions and values, ethical values and justice, sustainable development and the rule of law.

At the same time, it addresses, among other conduct, bribery of national public officials; bribery of foreign public officials and officials of public international organisations; embezzlement, misappropriation or other diversion of property by a public official; trading in influence; abuse of functions; illicit enrichment; bribery and embezzlement in the private sector; laundering of proceeds of crime; concealment; and obstruction of justice.

The Convention nevertheless establishes a fundamental distinction among them.

For some conduct it requires States to adopt the legislative and other measures necessary to establish it as a criminal offence. For other conduct, the obligation is to consider criminalisation, taking into account, in certain cases, the Constitution and fundamental principles of the domestic legal system.

This distinction affects precisely some forms of conduct with potentially broad institutional scope.

Article 19 of UNCAC addresses abuse of functions. It contemplates the intentional performance or failure to perform an act, in violation of laws, by a public official in the discharge of his or her functions, for the purpose of obtaining an undue advantage for himself or herself or for another person or entity.

This provision is particularly relevant because, unlike bribery, it does not necessarily require an exchange between two parties. It approaches the broader problem of the exercise of a public function contrary to law.

UNCAC does not, however, require States to criminalise it. It requires them to consider adopting the necessary measures to establish it as a criminal offence.

Within the Convention itself, therefore, there is an objective difference between the set of conduct it identifies and the smaller set whose criminalisation it requires.

The European Union sought to expand that perimeter

This distinction becomes particularly visible when UNCAC is compared with the recent evolution of European Union law.

In May 2023, the European Commission presented its proposal for a Directive on combating corruption by criminal law. The proposal sought to incorporate international obligations and standards, particularly those arising from UNCAC, while also going beyond international obligations in certain areas.

The Commission expressly included abuse of functions among the offences to be harmonised.

Article 11 of the proposal established abuse of functions as an offence in both the public and private sectors and required Member States to ensure that intentional conduct was punishable.

The proposal was particularly significant because it would have converted into an EU obligation to criminalise conduct whose criminalisation UNCAC merely requires States to consider.

The Commission was therefore moving from “consider criminalisation” to “require criminalisation”.

But the text adopted three years later substantially modified that proposal.

From abuse of functions to certain serious violations of law

Directive (EU) 2026/1021 as finally adopted no longer contains an offence entitled abuse of functions. Instead, Article 7 regulates the “unlawful exercise of public functions”.

The change is not merely terminological.

The obligation imposed on Member States applies, where committed intentionally, to “at least certain serious violations of law” through the performance or failure to perform an act by a public official in the exercise of his or her functions.

In addition, the Directive permits Member States to limit the application of this Article to certain categories of public officials.

The delimitation therefore operates at several levels. Not every breach of law is covered: the Directive requires seriousness and, within serious violations, allows the criminalisation obligation to extend at least to certain violations. Member States may also limit the application of the Article to certain categories of public officials.

The Directive thus establishes successive elements delimiting the minimum criminalisation perimeter.

UNCAC (2003): abuse of functions → States must consider criminalisation.

European Commission proposal (2023): abuse of functions → mandatory criminalisation in the Union.

Directive (EU) 2026/1021: unlawful exercise of public functions → mandatory criminalisation of at least certain serious violations of law → possibility of limiting the categories of public officials covered.

The Commission proposal and the Directive finally adopted therefore do not establish the same criminal-law perimeter.

There is, however, a difference in the opposite direction that must also be noted. The 2023 proposal linked abuse of functions to obtaining an undue advantage. The final Directive does not necessarily make such an advantage a general constituent element of Article 7.

The result cannot simply be described as a linear narrowing of the offence. Its delimiting elements change: one requirement disappears, while others relating to seriousness, the selection of violations and, potentially, categories of public officials appear.

Recital 17 confirms the significance of this modification. The Directive recognises that the unlawful exercise of public functions may undermine public trust, the rule of law and economic fairness and may cause serious harm to the public interest. At the same time, it leaves Member States to identify the serious violations of law that are to be covered.

What is particularly significant for this article is that this delimitation occurs in a legal instrument that expressly recognises the broad institutional, economic and social consequences of corruption.

This article does not seek to provide a general assessment of the 2026 Directive. Article 7 is an especially recent example of a problem that has developed over decades: rules that recognise the seriousness of the consequences of corruption simultaneously delimit which conduct must be criminalised and under what conditions.

Other offences do not guarantee complete coverage

The existence of an international criminalisation gap does not mean that every form of conduct falling outside a particular corruption offence necessarily goes unpunished.

Domestic legal systems contain other criminal offences that may cover particular conduct.

In Spain, for example, the offence of unlawful administrative decision-making (prevaricación administrativa) may cover certain unlawful acts by public authorities and officials. Mismanagement offences, misappropriation of public funds, fraud and other offences may also cover specific areas. Other legal systems use different offences.

But the existence of those offences does not justify presuming complete coverage either.

Each has its own constituent elements. Mismanagement offences respond to a particular patrimonial structure; misappropriation of public funds protects specific interests related to public assets; and prevaricación requires the elements specifically established for that offence.

Accordingly, stating that particular conduct may be prosecuted through other offences does not by itself resolve the gap. Establishing complete coverage would require determining whether the relevant conduct is in fact encompassed by one of the existing criminal offences and satisfies its constituent elements.

The question, therefore, is not how many offences directly or indirectly related to corruption exist.

The question is what conduct they allow to be prosecuted and what conduct falls outside their respective constituent elements.

Criminalisation necessarily delimits prosecution

The principle of legality in criminal law requires offences to be delimited. Conduct cannot be punished simply because it produces consequences regarded as harmful or because it may generically be described as corruption. It must satisfy the elements of the relevant criminal offence.

For precisely that reason, every element established by the rules delimits the perimeter of prosecution.

A requirement of an undue advantage delimits. A requirement of intent delimits. A requirement of knowledge delimits. A requirement of a particular patrimonial relationship delimits. A seriousness threshold delimits. The selection of particular infringements delimits. Restriction to certain categories of persons delimits.

These delimitations may respond to essential principles and safeguards of criminal law, including legality, legal certainty, proportionality and the rights of the accused. Recognising this is indispensable.

But that justification does not alter an objective consequence: each element determines which conduct falls within and which conduct falls outside the relevant criminal offence.

The problem of prosecuting corruption therefore does not begin only when an existing criminal rule is not applied.

There is an earlier question: which conduct has been made criminally prosecutable, and under what conditions.

From the criminalisation gap to criminal impunity

Three decades of international legislation have considerably expanded the number of forms of conduct prosecuted, the persons covered, the liability of legal persons and the mechanisms of international cooperation.

But that evolution has occurred fundamentally through an architecture based on the fragmented criminalisation of specific manifestations of corruption.

The Inter-American Convention attributes serious institutional, social and economic consequences to corruption while expressly recognising the existence of other acts of corruption not covered by it.

UNCAC likewise describes far-reaching consequences and addresses an extensive set of conduct, but distinguishes between conduct whose criminalisation it requires and conduct whose criminalisation it merely requires States to consider.

The European Union states that “corruption is first and foremost a crime”. Yet the evolution from the European Commission’s 2023 proposal to the Directive finally adopted in 2026 shows how the criminal-law perimeter depends on the selection of conduct, required elements and persons covered.

And the Venice Commission expressly asks whether corruption and corruption-related offences have been criminalised in accordance with international standards, placing this question within its rule-of-law benchmarks.

From this architecture arises the criminalisation gap analysed in this article: the distance between the breadth of corruption and the consequences recognised by international rules themselves, on the one hand, and the delimited perimeter of conduct whose criminalisation they require, on the other.

This gap creates a potential space for normative impunity. Not because every form of conduct falling outside a particular criminal offence necessarily goes unpunished, but because prosecution will depend on whether it can be subsumed under another offence and satisfies all of that offence’s constituent elements.

The distinction is essential.

Impunity may arise because an existing offence is not adequately investigated, prosecuted or punished. But there is a logically prior stage: conduct may not have been included within the perimeter of applicable criminal offences, or may fail to satisfy one of their delimiting elements.

This second gap is the one analysed here.

It is not the only gap in the international anti-corruption architecture. The international organisations responsible for developing, supervising or evaluating this system have themselves identified other deficiencies relating to prevention, regulation, implementation, investigation, prosecution and punishment of corruption.

The next article in this series will examine those gaps recognised by the international organisations themselves.

Subsequently, it will be possible to compare these normative and implementation gaps jointly with the results obtained after three decades of international anti-corruption architecture and with the macroeconomic dimension and systemic consequences analysed in the first articles in this series.

The sequence makes it possible to distinguish two different problems: the implementation gap begins after criminalisation; the criminalisation gap begins before it.

SERIES ON CORRUPCTION. Part 1

1. Without Corruption There Would Be No Public Debt. https://doi.org/ 10.5281/zenodo.21993280
2. SYSTEMIC CORRUPTION. From Institutional Consequences to Systemic Transformation. https://doi.org/ 10.5281/zenodo.21994617
3. The Criminalisation Gap in Corruption. Impunity Can Begin Before Prosecution. https://doi.org/ 10.5281/zenodo.22729133
4. Three Gaps in the International Fight against Corruption. Thirty Years of Rules, Non-Compliance and Insufficient Implementation https://doi.org/10.5281/zenodo.23019185
5. Thirty Years of Fighting Corruption: What Have the Results Been? https://doi.org/10.5281/zenodo.23333997
6. Toward a Structured Definition of Corruption https://doi.org/10.5281/zenodo.23684696
7. Who Corrupts the Corrupt? From the Individual Corruptor to the Selection and Reproduction of the Corrupt (Forthcoming)

The first seven articles develop an integrated examination of the scale, systemic dimension, legal framework, institutional response, results and definition of corruption, concluding with an analysis of the actors and structures that corrupt and reproduce corruption.

Previous Research Underlying the Series

• Normative Asymmetry in the Inter-American Anti-Corruption Framework: Structural Diagnosis and Conduct-Based Enforcement. https://doi.org/10.5281/zenodo.18851233
• Integrating Structural Risk Analysis into GRECO Evaluations: Methodological Opportunities within the Council of Europe Anti-Corruption Framework. https://doi.org/10.5281/zenodo.18871431
• Bridging the Structural Gap in the United Nations Convention against Corruption. A Juridical-Economic Analysis of Systemic Corruption in Advanced Economies. https://doi.org/10.5281/zenodo.19021241
• Structural Calibration in European Union Anti-Corruption Law: A Contextual Mechanism for Judicial Sentencing Individualisation. https://doi.org/10.5281/zenodo.19021587

Related Historical-Structural Framework

Marzal, J. (2026). The Rise of the Macro-State: A Historical-Structural Analytical Framework for the Convergence of Economy and Power. https://doi.org/10.5281/zenodo.19089595.

Javier Marzal

ORCID: 0009-0009-4373-8068

www.javiermarzal.com