TRADING IN INFLUENCE

Trading in influence is a form of corruption which is difficult to capture and understand. By trading in influence, or influence peddling referral is being made to: the situation where a person misuses his/her influence over the decision-making process for a third party (person, institution or government) in return for his loyalty, money or any other material or immaterial undue advantage.

The Council of Europe Convention (COE) describes trading in influence in Article 12 as: the intentionally, promising giving or offering, directly or indirectly, of any undue advantage to anyone who asserts or confirms that he or she is able to exert an improper influence over the decision making of any person, whether the undue advantage is for himself or herself or for anyone else, as well as the request, receipt or acceptance of the offer or the promise of such an advantage, in consideration of that influence, whether or not the influence is exerted or whether or not the supposed influence leads to the intended result.

The acknowledged forms of lobbying do not fall under the notion of “improper” influence which must contain a corrupt intent by the “influence peddler”. It is only when the lobbying or attempt to exert influence results in the holding out the prospect of specific advantages to the public official (s) involved in the decision-making process that the bounds of propriety are overstepped.  Lobbying is not considered illegal, but provides an opportunity for NGO’s and interest groups to exercise political influence. It is a fundamental right in a democracy to influence people in power or others through exercising the right to freedom of expression.

States have not criminalized trading in influence according to the requirements of article 12 because they feel that it does not offer a clear, solid and efficient description of trading in influence. They also fear a climate where there is no room left for lobbying activities or any form of influencing. Most States try to deal with the phenomenon via the criminalization of other offences such as bribery. The fact that from the provision it remains unclear what can be regarded as justified and unjustified influencing strengthens their belief to keep their reservation to article 12.

The difficulty in criminalising trading in influence is that the corrupt act is not obvious. Whether an official is influenced is often difficult to prove because the causal connection between the actor who acts and the actor who is being influenced is not so clear and remains difficult to investigate and prove.