Clarifying Abuse of Office: Comparative Legal Approaches

Query

How is the abuse of function offence, as described in Article 19 of the UNCAC, defined, regulated and applied in selected UNCAC States Parties, and what major differences in scope and legal interpretation emerge from these national approaches?

Summary

This Helpdesk Answer provides an overview of the abuse of function offence as a “catch-all” provision for suspected cases of corruption in which it is not possible to prove that an act of bribery was committed, using Article 19 of the United Nations Convention against Corruption (UNCAC) as a baseline. It outlines the offence’s purpose, its semi-mandatory status within UNCAC, and the wide variation in how states have incorporated it into national law.

Main points

• Article 19 defines abuse of function as a residual offence meant to capture intentional misconduct by public officials aimed at obtaining an undue advantage, even where bribery cannot be proven.
• States are required only to consider criminalising abuse of function, which has contributed to wide differences in domestic legislation.
• National laws differ on what conduct qualifies, ranging from broad violations of law to detailed lists of prohibited acts, or additional requirements such as proof of harm.
  
• While UNCAC requires intent to obtain an undue advantage, many states either heighten or lower this requirement, changing the offence’s scope and evidentiary threshold.
  
• Departures from the UNCAC model can limit the offence’s auxiliary role or create risks of vagueness, overreach, and selective enforcement.
  

• Recent repeals and revisions triggered by concerns about legal certainty and human rights reflect the ongoing tension between maintaining an effective residual offence and ensuring fair and predictable criminal law.

Authors

Guilherme France, [email protected]

Reviewers

Maria Constanza Castro, Matthew Jenkins and Milos Resimic

Date

20/11/2025

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