That corruption is not a victimless crime is no longer in doubt. The once fashionable argument that corruption advances human welfare by “greasing the wheels” of clunky bureaucracies has been entombed thanks to a plethora of academic studies, media reports, and first-person accounts showing the undeniable, often enormous, harm corruption wreaks on individuals and society as a whole. As UN Secretary General António Guterres told this week’s seventh meeting of the parties to the UN Convention Against Corruption, that harm ranges from denying citizens access to such basic rights as “health services, schools and economic opportunities” to undermining the very foundation of the state through enabling “a small elite in positions of power to prosper” thus destroying citizens’ “faith in good governance.”
While the damage corruption does is now clear, how to recompense the losses it causes is anything but. The definitive legal text, the UN Convention Against Corruption, offers little help. To be sure, article 35 requires state parties to give those “who have suffered damage as a result of an act of corruption … the right to initiate legal proceedings against those responsible … to obtain compensation and article 57 directs governments that have recovered the proceeds of corrupt acts to give priority to “compensating the victims of the crime.” Nowhere, however, does the convention offers any guidance on how to determine who is a victim of corruption or how their damages should be determined. As a result, both international and domestic law on victim compensation will have to develop through court decisions, learned commentary, and legislation.
An important step in developing this law is the paper the UNCAC Coalition, a network of some 350 civil society groups from over 100 countries, submitted to this week’s meeting of UNCAC state parties. “Recovery of Damages and Compensation for Victims of Corruption” draws on international law and emerging law and practice in both developed and developing states to guide the creation of laws governing corruption victim compensation. The Coalition urges governments to:
“1) Recognise the rights of victims to initiate and participate in grand corruption proceedings and the importance of assessing and representing harm in grand corruption proceedings. To this end, they should ensure that their legal frameworks have comprehensive interpretations of harm and a broad definition of “victim”; that prosecutors develop suitable criteria for identifying victims of and harm from corruption at the earliest possible stage of criminal proceedings; and that the views of victims and evidence of harms are present in proceedings, including out of court settlements.
“2) Encourage civil society organisations, nationally and internationally, to set up and operate corruption observatories to collect information, provide advice to victims, help determine damages and support action for recovery.
“3) Establish mechanisms for civil society and non-governmental actors to report crimes of corruption directly to anti-corruption bodies (in line with UNCAC Article 13 (2)), and be treated as an official complainant.
“4) Permit and encourage courts and prosecutors to recognise and seek civil society and other expert assistance in identifying the harm and potential victims of corruption, and in helping determine how compensation can be used for the public good, in a transparent and accountable manner.
“5) Make public in a timely and accessible form, information on the rights of victims of grand corruption to initiate and participate in criminal and civil proceedings, including out of court settlements and provide full public access to such proceedings and relevant court documents from such proceedings.
“6) Ensure that compensation is based on a full analysis of the broader harm caused by an act of corruption. Sanctions and remedial action, including settlements, should include recognition of collective and social damage.
“7) Ensure that asset return, reparation and compensation of damages will not fuel the same system that caused the damage in the first place, and that their use is transparent and accountable to the people where corruption took place.
“8) Adopt a resolution at the 2017 CoSP [the seventh meeting of the state parties] that specifically urges the Secretariat to continue to share good practices and experiences, working with a broad range of interested groups including with UN and regional human rights mechanisms to learn from and collaborate with them, and to work towards guidelines for the identification and compensation of victims in corruption cases and in particular victims in grand corruption cases.”
As this is written, action on adoption of a resolution on victim compensation remains to be decided. A follow up post will recap decisions taken on the CoSP meeting on victim compensation and summarize any resolution the state parties adopted on victim compensation.