Last month, I saw a news report about the international reaction to the Ukrainian Constitutional Court’s decision striking down Ukraine’s criminal offense of “illicit enrichment” as unconstitutional. For those unfamiliar with this topic, the crime of “illicit enrichment” makes it a criminal offense for a public official to realize a significant increase in his or her assets that the public official cannot reasonably explain. The crime of illicit enrichment is related to, but distinct from, civil asset forfeiture systems under which the government may seize—as presumptively the proceeds of unlawful activity—assets that the owner cannot reasonably explain. The main difference is that a civil forfeiture order results in the loss of assets, while a criminal offense can result in fines or incarceration, as well as the other collateral consequences of a criminal conviction. Some anticorruption activists support the criminalization of illicit enrichment on the grounds that it is often difficult or impossible to prove the underlying corruption offenses, but a substantial unexplained increase in a public official’s wealth is sufficient to prove that the official is corrupt. Critics warn that criminalizing illicit enrichment is incompatible with traditional notions of the presumption of innocence. (The UN Convention Against Corruption (UNCAC), perhaps unsurprisingly, fudges the issue, with UNCAC Article 20 calling on States Parties to “consider” adopting an illicit enrichment offense, “[s]ubject to [that country’s] constitution and the fundamental principles of its legal system.”)
In its decision last February 26, Ukraine’s Constitutional Court went with the critics, holding that the criminalization of illicit enrichment a criminal offense was an unconstitutional infringement on the presumption of innocence. This decision met with swift condemnation from the G7, which issued a joint statement with the World Bank declaring that the “recent elimination of the illicit enrichment offence from [Ukraine’s] criminal code is a serious setback in the fight against corruption” that has “weakened the impact of the whole anti-corruption architecture.” Illicit enrichment, the G7 and World Bank admonished, “is not a new offence. In 2010 there were more than 40 countries that criminalized illicit enrichment,” and “[c]ourts around the world have recognized that the criminalization of illicit enrichment is a powerful tool in the fight against corruption, while at the same time respecting fundamental human rights and constitutional principles such as [the] presumption of innocence[.]” The G7-World Bank joint statement closed by calling on Ukrainian authorities to “reinstat[e] criminal liability for illicit enrichment in line with UN, OECD, and [European Court of Human Rights] principles.”
Now, as a policy matter, I tend to agree with the G7-World Bank position here. I think that appropriately tailored and cabined illicit enrichment offenses can be useful tools, and (as others have also pointed out), it’s not true that such offenses have any inherent conflict with the presumption of innocence. Nonetheless, I found the letter an exercise in outrageous, condescending hypocrisy, one that the G7 countries in particular should be ashamed to have written.
The reason is simple: Unless there have been significant recent legal changes of which I am unaware, not a single G7 country criminalizes illegal enrichment. The list of 40+ countries that had illicit enrichment offenses as of 2010, which I’m fairly certain was the joint letter’s source for its tut-tut chiding of Ukraine, does not include any G7 countries. Moreover, while for some of these countries the reason for not adopting an illicit enrichment offense is not clear, and might spring from inertia or the sense that such an offense is unnecessary given the nature and extent of the country’s corruption problem, for at least two G7 countries—the US and Canada—the reason for not adopting an illicit enrichment crime is exactly the same as that offered by Ukraine’s Constitutional Court, namely concerns about incompatibility with the constitutional commitment to the presumption of innocence.
The reason we know this is because the Inter-American Convention Against Corruption (IACAC), to which both Canada and the United States are signatories, includes an article (Article IX) calling on States Parties to criminalize illicit enrichment. And when Canada and the US signed on to the IACAC, they both filed reservations to that article, explaining that an illicit enrichment crime would contravene their constitutionally-grounded notions of the presumption of innocence in criminal cases. The text of the US treaty reservation stated:
The offense of illicit enrichment as set forth in Article IX of the Convention … places the burden of proof on the defendant, which is inconsistent with the United States constitution and fundamental principles of the United States legal system. Therefore, the United States understands that it is not obligated to establish a new criminal offense of illicit enrichment under Article IX of the Convention.
And Canada likewise filed an IACAC reservation that declared:
As the offence contemplated by Article IX [illicit enrichment] would be contrary to the presumption of innocence guaranteed by Canada’s Constitution, Canada will not implement Article IX, as provided for by this provision.
So where to these countries get off lecturing Ukraine about how an illicit enrichment crime is essential to combating corruption and that such an offense does not contravene the presumption of innocence? How dare the G7 countries lecture Ukraine about how “more than 40 countries” have criminalized illicit enrichment, when none of zero of those 40-plus countries are in the G7? How could this happen.
Actually, I have a feeling I know how this happened. I suspect that none of the G7 officials involved in drafting or signing onto the statement to Ukraine actually know much about their own country’s legal systems, nor about the position their respective countries have taken in prior anticorruption treaty negotiations. But still, this is a bad look.
Just one more time, for the record: My beef with the G7 letter is not with the content. I think the Ukrainian Constitutional Court was wrong, and the G7 letter correct, on the substance. I therefore also think that the reservations filed by the US and Canada to Article IX of the IACAC are misguided. But boy, if there were an annual “Do as I Say, Not as I Do” award in the anticorruption field, this G7 letter would be an early favorite to win. Unfortunately I fear there’s plenty of competition for that dubious honor.