TI: HOW TO DESTROY CORRUPTION. BEST STRATEGIES

International criminal courts

international and internationalised criminal courts may “exercise concurrent jurisdiction when national courts cannot offer satisfactory guarantees of independence and impartiality, or are materially unable or unwilling to conduct effective investigations or prosecutions” (UN Commission on Human Rights 2005).

the main intl.court is the International Criminal Court (ICC). Based on the Rome Statute, the ICC has jurisdiction over genocide, crimes against humanity, war crimes and crimes of aggression

While no intl.court have explicit jurisdiction over corruption offences, Some scholars have advocated for an interpretation of CAH “crimes against humanity”, to include grand corruption….also, grand corruption is intrinsically linked to human rights violations, so they should be considered jointly 

Concerned with the issue of impunity in grand corruption cases, some have argued for the creation of an International Anti-Corruption Court (IACC)…. however, surely corrupt leaders would be very unlikely to support the accession of their countries to this proposed court

claiming in other countries

If criminal prosecution does not progress in one of the countries where the corruption offences were committed, international law recognises the possibility of extraterritorial enforcement action. Given that grand corruption cases usually cross borders, it may be possible to find other countries with jurisdiction over some aspects of the case 

– uncac gives four possible legal bases whereby a state can establish criminal jurisdiction over corruption not committed in its territory:

• PP.passive personality (art. 42, par. 2, point [a]) 
• AP.active personality (art. 42, par. 2, point [b])
• PRP. the protective principle, to establish jurisdiction over cases in which the state or its interests suffered some form of harm (art. 42, par. 2, point [d]).
• UJ. universal jurisdiction: a “criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or the convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction.”….EG. Armenia and Costa Rica have declared, to the UN, that corruption related offences may fall within their jurisdiction due to universal jurisdiction provisions
• countries may assert jurisdiction for other reasons (art. 45, par. 6)

challenges of prosecuting corruption in alternative jurisdictions:

• obtaining evidence on a crime committed in another country, especially when the government of that country is unwilling to collaborate, is costly and time consuming.
• Enforcement of convictions (ruled abroad), depend on the availability of extradition procedures
• the ne bis in idem principle

Private prosecution (eg by cocoo)

general rule : is only the responsibility of the state to prosecute criminality….why? becos criminal prosecution is seen as a tool to address impunity rather than to [ provide compensation/restitution = private prosecution]

private prosecution is the exception to the gen.rule, and is available in many countries (mostly in common law nations. uk etc).  international law/human rights instruments does not provide for priv.prosec.

in some countries, victims/csos, have right to appeal, when prosecutors decide not to move forward with a case. For example, the EU’s Victim’s Rights Directive(art. 11). However, this right is not applicable if the country’s decision not to prosecute, is a result of an out-of-court settlement, which is fairly common.

<> cocoo v states decision not to prosecute [failed this responsibility] + cocoo appeal v corrupt perpetrators (if no settlment country/perpetrator)

Legal standing for victims/csos

Unlike human rights abuses, the damages caused by corruption are often diffuse, indirect and widely shared by society (WPI)…but  it is extremely challenging to connect criminal conduct, such as accepting a bribe, to specific individual victims

Where (like in usa or germany), legal standing is only granted to direct victims of grand corruption, NGOs are unable to represent the interests of individuals and communities who have suffered harm as a consequence of grand corruption schemes.

In Spain, citizens can bring a suit if the issue involves the public interest. Similarly relaxed rules can be found in Colombia and South Africa. This facilitates the work of NGOs /csos

case: 

Restrictions for private prosecutions

2. (ii)  Permission of the public prosecution authority may be required before proceedings can move forward. The UK Bribery Act explicitly requires the consent of the director of the Serious Fraud Office before prosecuting any of the crimes listed in its Section 10. Also in the UK, the Crown Prosecution Service may take over private prosecution proceedings and/or discontinue them. This is also possible in other jurisdictions, such as Singapore and South Africa 
3. (iii)  in some countries, such as Brazil, private prosecution is only allowed if public prosecutors do not file charges within the period set by law 
4. (iv)  private prosecutors may only be allowed to pursue compensation for direct personal injury or loss, and not for recovery of the proceeds of a crime.
5. (v)  In some countries, specific people (e.g. a family member of the accused) or types of organisations are not allowed to act as private prosecutors. In others, a lawyer must be hired to represent them 

International anti-corruption enforcement/investigation agencies.  egs:

–  the European Union Rule of Law Mission in Kosovo (EULEX): handed down hundreds of criminal verdicts, including in organised crime and corruption cases. However, most of the corruption cases it handled went unsolved, and there is widespread disappointment over its results, especially considering the depth of resources available to its work: the annual budget surpassed €100 million 

Civil litigation

can provide an avenue to ensure that perpetrators of grand corruption schemes suffer some type of punishment and victims receive some sort of reparation.

pros of civil litig (over criminal litig):

1.  lower standard of proof
2. may lead to a similar range of penalties – fines and other monetary penalties, as well as asset confiscation
3. can be carried out, even when the alleged offenders are dead or absent
4. can be instituted against assets (not just v.people), which is useful when cannot identify asset owners, or when they are immune from prosecution 

Civil litigation by law enforcement authorities:

The UNCAC Article 12 lays out the importance of proportionate and dissuasive civil penalties in case companies fail to comply with measures to prevent corruption.

*FBIGs [FIRMS/GOVS(ec, ep, spain…)/BANKS/INDIVIDUALS/]

*CCPM (COMPLIANCE WITH CORRUPT.PREV.MEASURES)

COCOO

1/identify ALL condenatory firm sentences against fbigs’ , for ccpm failures:

2/ filter them by identifying fbigs that keep failing to ccpm because of …..egs:

eg. fbigs’ accounting practices

eg. fbig’s [whether sentenced or not!] TAS (tax avoidance schemes), causing ongoing failure to properly account for bribery (UNODC 2013, p. 17)

eg. fbig’s failing to pay alimony [financial support ordered by court]

eg. fbig’s [or individuals thereof] illicit enrichment

eg. fbig’s [or individuals thereof]in breach of the principles of public administration [<> PUBLIC LAW]

2/ civil foc

[since they are already with a firm sentence: to ccpm]…time limit (to foc): from the date the ccpm failure is known, or if it was known time ago, the time limit is 4 years??]. FOR REQUESTS:

a. CIVIL PENALTIES (COMPENSATION/RESITUTION) FOR INDIVICTIMS AND/OR WPI

EG: In Brazil <> AMAZON, the Administrative Improbity Law establishes penalties such as removal from public office, suspension of political rights and debarment in cases of damages to the treasury

b. any remedies [imposed by original firm sentence], to be complied with immediately.

c. DISSOLUTION/VOIDANCE OF an UA/merger , IF THE CCPM IS DISTORTING CLCP

d. Economic sanctions

e.AR (ASSET RECOVERY): AR procedures available to some law enforcement authorities:

1. 1. 1. (i)  non-conviction-based confiscation, that is, the forfeiture of assets that does not depend on a criminal conviction, can result from civil proceedings
      2. (ii)  unexplained wealth orders (UWOs), a proceeding based on a rebuttable presumption about the illegal origins of an asset, possibly leading to its confiscation.
      3. (iii)  disgorgement, a civil remedy which can be used to force individuals or companies to give up profits obtained illegally 
      4. (iv)  property claims, a mechanism to enforce ownership rights on aparticular identifiable asset
      5. (v)  personal claims, that can be presented against individuals or entities for damages or restitution
      6. direct recovery: private lawsuits by law enforcement officials in other jurisdictions, to recover corruption property: UNCAC (art. 53) . this is a more expedient route because it does not require waiting for enforcement action by the foreign jurisdiction or international cooperation proceedings 

f. Civil litigation led by victims or CSOs:

unbpgvgvhr[ UN Basic Principles and Guidelines for Victims of Gross Violations of Human Rights Law and Serious Violations of International Humanitarian Law]:

possible reparation measures:

1. (i)  restitution: measures to restore the victim back to their original situation before the violation occurred
2. (ii)  compensation: for any economically accessible damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case
3. (iii)  rehabilitation: medical and psychological care, along with legal and social services
4. (iv)  satisfaction: cessation of continuing violations, verification of the facts and public disclosure of the truth, public apology, and judicial and administrative sanctions against persons liable for the violations
5. (v)  guarantees of non-repetition: the implementation of measures designed to prevent future violations. This includes, for example, “promoting the observance of codes of conduct and ethical norms by public servants”

unbpgvgvhr:   countries should provide groups of victims with the opportunity to claim reparation.

Similarly, uncac [United Nations Convention against Corruption] (art. 35) and the clcac [Civil Law Convention on Corruption] (art. 1 and 3): the state should enable those who suffered damages as a result of acts of corruption to initiate legal proceedings and obtain compensation…but…. this rarely happens in practice (UNCAC Coalition 2021)

<> cocoo will make sure the state pays cocoo, so that cocoo or its clients/members (corruption victims), may claim

the right to access justice entails on states:

a. negative o.: courts must not to obstruct access [by refusing legal standi]

b. positive o.: to organise their institutional apparatus so that all individuals can access those remedies (Inter-American Commission on Human Rights 2007)eg. legal aid, justicia gratuita (turno de oficio). eg. right to a fair trial in a reasonable time and the right to a reasoned decision on the merits 

g. Administrative proceedings:

usually led by specific bodies within the government, such as internal affairs.

The UNCAC: states may instituting administrative liability regimes for companies (art. 12). In some countries, the responsibility for investigating, prosecuting and deciding on a company’s liability for misconduct, especially for foreign bribery, lies with the government.

some countries use a non-criminal liability method, including through an administrative system. These include Brazil, Colombia, Germany, Mexico and Russia.

Possible punishments:

fines, ar, restitution, revocation or suspension of licences, permits and warnings (UNODC 2015), debarment, prohibition from advertising, inability to access government benefits such as fiscal incentives, subsidised credit or export promotion benefits, and firm’s dissolution.

<> cocoo will seek settlement from FBIGs, in exchange for not reporting to gov (to start admin proceedings); or , if such proceedings have started…cocoo will find ways to ask for bigger penalties etc., unless they settle with cocoo

admin proceeding cases:

h/ Disciplinary proceedings:

are usually internal processes in government and provide a path to impose penalties on public officials for misconduct. In general, penalties administered in these proceedings include warnings, suspension, demotion and exoneration.

i/ Sanctions by international organisations

Pursuant to Chapter VII of the United Nations Charter, the United Nations Security Council (UNSC) is authorised to enact sanctions and other measures when it determines the existence of a threat to the peace and security of the international community. Thus far, grand corruption has not been considered to have risen to the level of such a threat.

Within the EU, sanctions have been used since the 1990s on the grounds of gross human rights violations and actions undermining democracy and the rule of law. More recently, geographical sanctions were used to target cases of grand corruption in three countries – Egypt, Tunisia and Ukraine – to facilitate the recovery of stolen assets after authoritarian regimes were toppled by popular uprisings. Financial misconduct concerning public funds was also a component of the sanction regime

j/ Multilateral development banks: (MDBs) :

give admin sanctions for the improper use of the funds they lend. also exclude bad actors from further funding

The World Bank Group (2016), for example, applies five different types of sanctions: fixed-term debarment (exclusion from future loans or tenders), debarment with conditional release, conditional non-debarment, letter of reprimand and restitution (repayment)

un, eu and national governments also make debarment lists available to the public 

Agreement for Mutual Enforcement of Debarment Decisions in 2010:  regional development banks and the World Bank Group committed to mutual recognition of enforcement actions (cross debarment)

k/ Unilateral (1 gov) anti-corruption sanctions regime:

Targeted (v foreign firms…) sanctions, unlike general economic or trade sanctions, affect the wpi much less

<> cocoo will ask all sanctions to be targeted [to protect wpi]

eg: The United States law imposes targeted sanctions against Russian officials under the president’s authority. Individuals involved in gross human rights violations against Magnitsky (a russian whistleblower killed by putin), were subject to the blocking of their assets found under US jurisdiction, prohibited from taking part in US based transactions and denied entry into the United States (Congressional Research Services 2020)….the US president can impose sanctions on foreign individuals if they are considered responsible for human rights abuses or for “acts of significant corruption, including the expropriation of private or public assets for personal gain, corruption related to government contracts or the extraction of natural resources, bribery, or the facilitation or transfer of the proceeds of corruption to foreign jurisdictions” 

uk, canada, australia, etc have followed the United States in the creation of corruption sanction regimes

In 2020, the EU allows a global sanctions regime, but , so far, only for human rights violations, not for corruption.

 The most common types of corruption [in a sanctions regime] are:   misappropriation of state funds, money laundering, fraud and bribery …..oecd: enterprises should not “directly or indirectly, offer, promise, give or demand a bribe or other undue advantage to obtain or retain business or other improper advantage”.

<> cocoo JR v gov decision (to sanction/not to sanction/not to sanction enough)…unless the foreign firms settle with cocoo…..the ground for sanction: eg. indirect offer of an undue advantage….thus, failed cocoo’s due diligence report of the allegedly corrupt firm.

L/ NCP: a national contact point : oecd requires all members to promote these recommendations and resolve claims of corporate misconduct, including breaches to anti-corruption standards

cocoo: what is the ncp in spain and uk ?

some NCPs are empowered to issue determinations, i.e., declarations on whether the company’s conduct was adherent to the guidelines or not

but… the number of complaints received by NCPs on corruption related issues remains small wrt complaints on environmental and human rights violations

M/ human rights complaints to International human rights courts:

it may provide an avenue for victims of grand corruption to seek reparation

eg. the Inter-American Court on Human Rights (IACHR), the European Court of Human Rights and the Economic Community of Western African States (ECOWAS) Court of Justice.

eg. the Claude Reyes v. Chile case, the IACHR (2006) found that Chile had failed in its obligations to adopt legal provisions ensuring the right to access information to its citizens.

TI in Peru, sought out the IACHR, to raise alarm about cases of corruption and attacks against human rights and environment defenders , to seek liability of the Peruvian state and pressured it into taking action against such violations.

these courts also may serve to make the argument that grand corruption cases are violations of human rights.

For example, the cso Ghana Integrity Initiative brought a case before the ECOWAS Court of Justice against a shady government deal to sell the majority of its future gold royalties from mining leases to an offshore company.  this cso argued that it was in violation of art. 21 of the African Human and Peoples’ Rights, which states that all peoples are entitled to determine how their wealth and natural resources are disposed 

They can also be a used to seek reparation….eg: an csos brought before the ECOWAS Court of Justice, a case against the Nigeria government due to reports about the pervasive impact of corruption on the education sector. This led to a decision that recognised the right to education was threatened by corruption. The court also ordered the government to provide the necessary funds to cover the shortfall lost to education sector corruption.

The (UNHRC) can also act on individual cases of reported violations through its special procedures, which are conducted by independent human rights experts. The UNHRC can also establish investigative bodies