The Criminalisation Gap in Corruption. Impunity Can Begin Before Prosecution

This article identifies and analyses a gap in the international criminalisation of corruption. International anti-corruption instruments recognise that corruption can have far-reaching economic, institutional, political and social consequences, while criminal law addresses the phenomenon through specifically delimited offences and different degrees of obligation to criminalise them. The analysis traces this gap through the Inter-American Convention against Corruption (1996), the Council of Europe Criminal Law Convention on Corruption (1999), the United Nations Convention against Corruption (UNCAC, 2003), and the evolution from the European Commission’s 2023 proposal to Directive (EU) 2026/1021. Particular attention is paid to abuse of functions and to the distinction between mandatory criminalisation and provisions requiring States only to consider criminalisation. The article argues that this creates a potential space for normative impunity that precedes problems of enforcement: the scope of criminal prosecution is already delimited at the stage of criminalisation. This distinction is summarised as follows: the enforcement gap begins after criminalisation; the criminalisation gap begins before. This is the third article in the Corruption Series. A new paradigm (analytical framework) based on the analysis and integration of documentation produced by intergovernmental organisations. It builds on the first two articles, which examined the macroeconomic dimension of corruption and its systemic consequences.