Who Guards the Guardians in the Anticorruption Battle? Compelling Prosecutors to Take Action

Article 30(3) of UNCAC calls upon state parties to ensure that any legal discretion pertinent to the prosecution of corruption is exercised to to maximize the effectiveness of law enforcement.” Yet there is evidence that prosecutors do not always exercise their discretion in anticorruption cases in a manner that conforms to this principle. Prosecutorial decisions to shelve or terminate a case might instead be influenced by economic considerations — as when a large financial institution is involved, or when prosecution risks losing a valuable foreign investor — and by political considerations — as when the case may influence foreign diplomatic relations or when the case involves senior officials or other parties close to the governing regime.

There is no shortage of such troubling cases in both developed and developing countries. One of the best-known is the BAE Systems/Al-Yamamah case, which involved credible allegations that the British multinational had paid substantial bribes to senior Saudi Arabian officials in connection to a major arms deal. The UK investigation into the bribery allegations was brought to an end on grounds of public interest. The British government, and some of its defenders, emphasized the need to combat terrorism through maintaining relationship with Saudi Arabia with all underlying intelligence cooperation. Nevertheless, cases of this kind impair progress against entrenched corruption. Even if such cases are relatively infrequent, their existence risks depriving both the UNCAC treaty and domestic anticorruption laws of their deterrent effect.

If public prosecutors sometimes fail in their responsibility as anticorruption “guardians” by shelving or dropping investigations, what can be done? Long term solutions might require broader systemic reform, but there are some actions that could be taken, under the rubric of the UNCAC, to pressure or compel prosecutors to fulfill their responsibilities:

  • One way forward could be establishing, through an additional protocol, a department at the UN Office of Drugs and Crime (UNODC) authorized to receive complaints about impermissible considerations influencing prosecutorial decisions in individual cases (including the decision not to pursue credible corruption allegations). Such a body, which would be similar to the UN Human Rights Committee, would have authority to take up a case only after the exhaustion of local remedies. Under this proposal, if credible corruption allegations remain uninvestigated by domestic authorities (or if that investigation is prematurely terminated), the UNODC department could begin to follow the matter more closely, submitting queries of justification to the state involved. Even if the UNODC monitoring body lacked the authority to impose more direct or tangible sanctions, this public questioning might encourage the target state to defend its international image by working on investigating the claim or, at bare minimum, taking more aggressive action in the future.
  • A second response would be to broaden the scope of the remedies required by UNCAC Article 35 to include the right of a private party to appeal a the public prosecutor’s decision not to pursue investigation of credible corruption allegations. This is not a completely novel mechanism: In most civil law systems, executive inaction is deemed an implied decision that can be judicially reviewed. The proposal would expand the scope for such review, so that a public prosecutor’s decision to shelve an investigation, like the decision to dismiss a case, would be treated as a judicially reviewable decision.

The main challenge of the proposed mechanisms is that their adoption requires an additional protocol to UNCAC. Accordingly, they depend, in the same way as any transnational problem, on how genuine is the desire of state parties to make their rhetoric about fighting corruption a reality. Perhaps it is therefore overly optimistic to expect any movement on this from the states’ side. However, one shall bear in mind that all achievements in international law today seemed inconceivable two decades ago. In the 1980s, who could imagine that states would agree to establish an international criminal court, or for that matter that they would agree to criminalize bribes paid by their citizens or firms in foreign countries? Even if expansion of UNCAC seems unrealistic in the short term, it’s important to start thinking now about how to address the serious problem of prosecutors abusing their discretion by failing to pursue anticorruption cases for impermissible economic or political reasons.

12 thoughts on “Who Guards the Guardians in the Anticorruption Battle? Compelling Prosecutors to Take Action

  1. I could not agree more! Prosecutorial discretion is indeed a central impediment to anti-corruption enforcement in many jurisdictions.

    The solutions you propose are excellent and echo asks that have been made by the UNCAC Coalition during the 5th Conference of States Parties (CoSP) to the UNCAC (see UNCAC Coalition statement: http://www.uncaccoalition.org/images/PDF/Coalition-Statement-for-COSP-English.pdf ; see in particular asks n° 10 and 18).

    Needless to say, none of them have been endorsed at the time nor are likely to be endorsed during the next CoSP in 2015…

    Given this, is it possible for civil society “fill the gap”? May civil society prevent corruption cases from being stopped before they get to the courts? Is it possible for civil society to supplement public prosecutors and to initiate proceedings?

    While in some countries such as the US, there is absolutely no avenue for civil society (apart reporting and/or screaming in the media); in others, civil society groups may however try and challenge the public prosecutor’s decision through a judicial review application. The difficulty however is to establish that the public prosecutor has made a decision outside the lawful bounds of the discretion afforded to him…Which is quite a tough task as illustrated by the judicial review application filed by the Corner House in the BAE Case (see: http://www.controlbae.org.uk/jr/).
    There are also countries that allow private parties to bring prosecution – which seems to be a promising venue for civil society as evidenced by two corruption cases currently under investigation in France (the so-called “Biens Mal Acquis” case http://www.transparency-france.org/ewb_pages/a/affaire_biens_mal_acquis.php) and Spain (APDHE v. Obiang Family  http://www.opensocietyfoundations.org/litigation/apdhe-v-obiang-family).
    There is room for action; let’s make use of it!

  2. These are some really interesting proposals, and I appreciate you placing these very ambitious ideas in the context of progress over the past few decades.

    One real barrier I could see, however, is that, at least for investigating decisions not to prosecute on the basis of political considerations, countries might oppose broadening the scope of remedies on the basis of sovereignty. That is, countries could easily argue that any investigation by the UNODC would improperly intrude upon foreign diplomatic relations, which are by nature the purview of the sovereign government.

    In addition, being quite unfamiliar with prosecutorial power outside the United States, I worry that at least some countries will be wary about the evidentiary issues involved in appealing decisions that are traditionally discretionary. What standard must prosecutors meet to show that their decision was reasonable? What records must be kept by government agents, and what records will the government be forced to turn over to the UNODC?

    It’s perhaps for these reasons that I think the additional protocol might be more feasible, at least in the foreseeable future. I suppose I’m envisioning countries that are serious about fighting corruption could lead the charge by opting in to the additional protocol. From a constructivist standpoint, this could eventually pressure other countries to similarly adopt the protocol, and move the international community even closer to addressing this problem.

    • Thanks for your thorough comments. I enjoyed reading them. However, I would like to clarify two points :
      First, for the concern about sovereignty and diplomatic relations The rationale beyond the proposed mechanism is not completely novel. Similar systems have existed in other legal spheres. You may review the human rights treaty bodies And how they assumes power after the exhaustion of local remedies. Second you may consult the pressure exercised by the Working group of OECD on the UK following Al-yamamah .England with its political and economic weight could not contest the report on the grounds of sovereignty .
      It is noteworthy that I am not saying that the proposed body will conduct a full judicial investigation as that conducted by the ICC or other international Ad hoc tribunals . Rather it will exercise some sort of pressure on states in respect of complaints that prima facie seems unjustifiably uninvestigated or for which procedures were truncated. This can take place by demanding justifications from the state drawing the attention of international media. Eventually fair assessment s shall be incorporated in the UNCAC review reports. UNCAC states’s recent adoption of review mechanism indicates that state accepts the idea of having its actions and institutions reviewed .

      Secondly, in respect of the scope of the judicial challenge, I believe I have to clarify the distinction between nolle prosequi and Shelving. In most Civil law systems a decision not to prosecute is appealable .The proposal, which still needs more development in this regard, is to try to introduce a similar rules beyond civil law realm. Here if the decision was appealed before judiciary there will be no room for the UNODC to intervene except through bringing the matter to the public opinion and assessing the efficiency of the judicial system. As for what are the standards of challenging a nolle prosequi there are dozens of rules in Civil law systems in this regard. As long as prosecution comes up with somehow justifiable grounds for its reasoning, courts do not reverse their decision.
      UNODC comes into play when the complaint is shelved, In most countries there is no obligation to prosecute certain claims and most corruption cases do not have a victim to follow the case more closely thus the proposal focuses more on shelving, were the claim is kept hanging without taking any action. What would you suggest if prosecution has not taken any action toward a serious claim. force it. In other cases there is usually a victim who follows the case , reports to media..etc. While, most corruption cases do not have a victim so a case can be easily set aside no one ever hears of it anymore. in Civil law systems inaction of executive bodies is deemed an implied decision against which a judicial review suit can be initiated. For clarification, if a request submitted to an administrative agency which neither approved nor denied the request, its attitude is regarded as an implied denial decision that could be challenged judicially The suggestion is to use analogy and apply the rules of inaction on case shelving that shelving here could be considered a negative decision or an implied nolle prosequi. Simply put to apply the rules of nolle prosequi on case shelving.
      You still might argue that even for challenging before domestic courts whether in the case of inaction or nolle prosequi , one should not trust the judiciary of states with so entrenched corruption. However, this is not case in all countries, even when it is; the role of the UNODC is to create public opinion , drawi the media’s attention and assess the efficiency of the local judicial system . Knowing the weakness points is the first step in reform. No shortage of UN sponsored programs working on empowering the rule of law and developing judiciary. Besides such shortcomings could be addressed in the review reports and on the long run the state may respond to it. Again take England as an example, which has issued a new law to soothe the outcry and the critics that followed “ Al-yamamha”.

  3. I really enjoyed reading this post and think that you raise a number of interesting points. However, I wanted to push back a little on the notion that the use of prosecutorial discretion that is not solely employed to “maximize the effectiveness of law enforcement” is always a bad thing. While combatting corruption is incredibly important, it is not the sole legitimate goal which governments are striving to achieve. Indeed, the BAE Systems/Al-Yamamah case is, for me, a perfect example of a situation in which, if the British government is correct that continuing with its claims could have jeopardized the country’s efforts to combat terrorism, this case may perhaps have been rightly set aside.

    The problem with this argument is, of course, that it may provide states with an easy out from meeting their international obligations or that state actors may disingenuously claim that their refusal to prosecute a company was due to national security concerns, etc. when in fact it was simply a fear that they might lose a valuable foreign investor. However, I worry that trying to implement systems that provide states with no avenue to ever employ this type of prosecutorial discretion may simply deter states from fully committing to such programs.

    That being said, I think that your proposal of a new UNODC department is a valuable one. While it may be difficult to implement, a department of this kind could both play a crucial role in drawing additional attention to this problem and serve as an external check on the improper use of prosecutorial discretion in corruption cases.

    • My reaction was, in many ways, similar to Lauren’s. While I agree that there are many cases in which a prosecutorial decision not to pursue credible corruption allegations is due to improper considerations, there are other situations in which a decision not to pursue a corruption allegation — like a decision not to pursue any other kind of criminal allegation — might be justified by a range of legitimate considerations, including not only resource constraints, but assessments of the likelihood of prevailing, and, yes, in some cases (legitimate) political or economic considerations. Maybe I’m overly conditioned by the fact that I was trained in the US legal system, where prosecutorial discretion is a (very strong) default rule, but I do think that discretion is often valuable, and even in civil law systems that in principle have more constraints on prosecutorial discretion to drop a case, I gather that there are other mechanisms that enable prosecutors to pick and choose — and in those systems where this doesn’t happen, it can create all sorts of problems.

      The problem is distinguishing legitimate exercises of prosecutorial forbearance from illegitimate exercises of such forbearance. Partly because of this concern, I’m also more sympathetic to your proposal for some kind of external complaints/monitoring body that could put “soft” pressure on prosecutors than I am to the suggestion that countries create (or that UNCAC mandate) very broad rights of private parties to enjoin public proseuctors to pursue certain cases.

      I also wonder whether those sorts of more aggressive mechanisms might be more appropriate in some countries than in others.

      • I agree that a monitoring body is more practical approach, taking account of the difficulty of introducing new rules to different legal systems. Also, bearing in mind how soft power soft law led to many considerable achievements in the international law arena.
        However domestic judicial review still an efficient tool in the armory of civil society and individuals. As it is a national guarantee that governments do not disingenuously use public interest to cloak other ulterior motives. So why not we leave it to the court to decide. You have reasonable concern for cases where legitimate consideration justify ending the prosecution, but judicial review has enough flexibility to embrace state’ national interest and to discern cases where prosecution can do more harm than good. The theory of “acts of the prince” in administrative civil law system reflects how courts give the executive authorities sufficient space when it comes to pure assessment of political or national security concerns. Given my limited knowledge of common law I am not sure that an equivalent theory may exist. Therefore I share your concern that private action could be more difficult to introduce to common law compared to other systems. Nevertheless, they are not inconceivable, even in the UK the SFO’s decision was reviewed by the court.

  4. This is a very good point Matthew!
    Prosecutorial discretion is in fact critical to properly defend the public interest, and, in the case of corruption, to prevent the collateral damage (economic/political) that may be associated with the pursuit of (often sensitive) transnational corruption cases.
    Hence the question: how to make article 5 of the OECD (and related provisions under the UNCAC) work in practice? How, to reconcile the need to fight global corruption with the related (legitimate) “public interest” concerns? Might the establishment of an international & independant investigation/resolution mechanism for transnational corruption cases (an idea supported by many others by the way) be the solution (or, at least, part of the solution)?

    • I think these are great questions to ask, and as I said in my initial response to Mohamed, I think the idea of some kind of international monitoring body, that can at least call attention to areas of concern (cases that appear to have been dropped for political reasons, etc.) seems like it’s worth some consideration.

      That said, there are a few concerns one might have about this way forward. First, national legal systems are so different, both institutionally and with respect to their choices about how to strike the balance between competing values, that an international monitoring body might find itself in a difficult position. Second, making judgment calls about whether a particular investigation was properly shelved might require sensitive information and considerations that prosecutors might be legitimately reluctant to disclose; in contrast, perhaps, to human rights violations, in the cases Mohamed rightly highlights the issue is not so much what happened, but rather _why_ it happened, and I think it might be challenging for an international monitoring body to figure that out without the full cooperation of the jurisdiction under investigation. Third, though Mohamed uses the example of the Human Rights Committee as a potential model, that committee may also serve as a cautionary example of how things can go wrong–the HRC has lost a great deal of credibility in some quarters, partly because of concerns about politicization, partly because of concerns about membership.

      In terms of what else can be done along these lines, I think that civil society organizations can actually contribute a lot simply by drawing attention to problematic cases–the “reporting and/or screaming in the media” that you mentioned in your above comment. For example, as Rick and others have suggested on this blog and elsewhere, civil society groups could keep track of and publicize foreign bribery cases (e.g., FCPA settlements) and IFI sanctions (e.g., World Bank debarment) in the host countries where the bribery took place, and continually raise questions in the local media about why, if foreign company X already admitted paying bribes to domestic officials, no charges have yet been brought against the bribe-takers. Additionally, as Ignacio suggested in an influential earlier guest post, activists could attempt to use freedom of information laws to learn more from supply-side enforcing jurisdictions about which government officials have been taking bribes.

      Finally, the transnational scope of many of the existing foreign bribery laws may be another way to combat the problem. After all, in Mohamed’s example — BAE in Saudi Arabia — in the end BAE didn’t get away with it, because the US took action. And we’re starting to see more anti-money laundering actions in cases by authorities in financial centers, in cases where the domestic jurisdiction has failed to prosecute.

      • Great to see this robust discussion of the competing merits of encouraging “demand-side” prosecutions from the top-down (as the OECD does with its public-shaming system, and as Mohamed’s UNCAC proposal) versus bottom-up civil society actions of the type Maud referenced in a few of her comments. My gut tells me that it wouldn’t be such a bad thing to add another voice/mechanism to the OECD Anti-bribery Convention’s Article 5. Mohamed’s proposal would have a broader reach than the OECD, for instance. On the other hand, though, I am persuaded by Matthew and Lauren’s concerns — it would be better, perhaps, to preserve the autonomy and sovereignty of demand-side countries and to have pressure on the prosecutors come from their own citizenry (and thus to focus global anti-corruption efforts on empowering that citizenry).

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