Monthly Archives: December 2021

Civil Society to the CoSP: Corruption Victims Are Entitled to Compensation

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The Council of State Parties to the United Nations Convention Against Corruption, the governments of the now 188 nations that have ratified the Convention, meets this week to review its implementation.  

When it comes to prosecuting bribery, embezzlement, and other corruption crimes, progress has been made. The UN Office of Drugs and Crime reports that “[i]n a considerable number of countries, legislative amendments and structural reforms have produced coherent and largely harmonized criminalization regimes, tangible results in terms of enforcement capabilities and action.”

But the Convention’s “enforcement capabilities and action” extend beyond criminal prosecution.  Article 35 requires state parties to ensure those injured “as a result of an act of corruption” can enforce a claim for damages against the perpetrators.

Here little progress has been made.  The UNODC, Transparency International, academics (here and here), and this writer have all found that few corruption victims have recovered damages. 

The UNCAC Coalition, a global network of over 350 civil society organizations in 100 plus countries, urges the CoSP to address this gap in implementation.  In a formal submission, the coalition offers a series of recommendations to see that victims, either individually or through a class or representative action, can recover full compensation for the harm caused by corruption. It’s timely and important submission is here.

Guest Post: Five Observations on the New US Strategy on Countering Corruption

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For today’s guest post, GAB is pleased to welcome back Robert Barrington, professor of practice at the University of Sussex’s Centre for the Study of Corruption.

Earlier this week, in the run-up to the Summit for Democracy, the US government launched its first-ever national anticorruption strategy, a move that was widely praised by advocacy groups such as Transparency International and the FACT Coalition. Indeed, the promulgation of this US “countering corruption” strategy document may turn out to be one of the most significant outcomes of the Summit, even though it preceded the Summit itself.

Only time will tell how much of an impact this new strategy document will make, but here are five initial observations: Continue reading →

Guest Post: New OECD Anti-Bribery Recommendation Introduces Standards on Non-Trial Resolutions

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Today’s guest post is from France Chain, Elisabeth Danon, and Sandrine Hannedouche-Leric, legal analysts at the OECD’s Anti-Corruption Division. The views expressed in this post do not necessarily represent those of the OECD member countries or States Parties to the OECD Anti-Bribery Convention.

The OECD Anti-Bribery Convention, which came into force in 1999 and currently has 44 member states, is intended to combat bribery of foreign public officials in international business transactions. Last month, the OECD Council adopted the 2021 Recommendation for Further Combating Bribery of Foreign Public Officials in International Business Transactions, which includes—among other measures to further enhance the fight against transnational bribery—a section on non-trial resolutions (NTRs). This section, which is based in part on the findings of a 2019 report on NTRs from the OECD’s Working Group on Bribery in International Business Transactions, represents the first time that a multilateral instrument included standards on the use of NTRs to resolve foreign bribery cases.

The Recommendation first calls for Convention member states that have not yet adopted an NTR instrument to consider doing so. (This call follows the Working Group’s finding, in its 2019 report, that in the 27 OECD Convention member states that have developed at least one form of NTR instrument, nearly 80% of foreign bribery cases that have been successfully resolved since the Convention entered into force were resolved via NTR.) The Recommendation also stresses, however, that member states should take measures to ensure that the use of NTRs follows the Convention’s principles of “due process, transparency, and accountability” The Recommendation fleshes this out by advancing eight principles. According to the Recommendation, Convention member states that make use of NTRs should: Continue reading →

Italy: Safe Haven for Bribe Payers?

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That a nation with the third-largest economy in the European Union and the eighth-largest in the world would be countenancing bribery in today’s world seems beyond the pale. Yet an analysis of recent case law and record of convictions shows just that.  Done by the Italian NGO ReCommon and submitted on a confidential basis to the OECD’s Working Group on Bribery, it concludes that it is “nigh on impossible to obtain a conviction in Italy for international corruption.”  

The group’s conclusion rests not only on Italy’s dismal record of convictions of Italian companies and nationals for bribing foreign public officials, but decisions in three recent cases. All raise a virtually insurmountable hurdle to a conviction for bribery. In any case. No matter whether the bribe-taker is an official of a foreign government or of the Italian government. In all three, courts have ruled that to prove bribery, the prosecution must show there was an express agreement to bribe.

In today’s world, just how many businesses send a letter to an official saying “I will pay you X in return for your providing the company Y”? As an American Supreme Court justice observed some 40 years ago, were the law to impose such a requirement, it could be easily frustrated “by knowing winks and nods.” Yet an express agreement to bribe is exactly what Italian judges now demand to convict bribe-takers and payors. Why has the Italian judiciary, historically one of the most renowned in the civil law world, decided to frustrate the prosecution of bribery cases?

Italy’s compliance with the OECD Antibribery Convention will shortly be reviewed by peer nations. It simply cannot be found in compliance so long as its courts require an express agreement to bribe to find defendants guilty. The OECD reviewers should follow ReCommon’s analysis, which in the public interest is revealed here, and condemn the recent turn in Italian law making the nation a safe haven for bribery.

Guest Post: Connecting the Two Worlds of Anticorruption and Human Rights Activism

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Today’s guest post is from Casey Kelso, a human rights and integrity consultant currently serving as Senior Advocacy Officer for Worldwide Initiatives for Grantmaker Support (WINGS), and Servaas Feieretag, an independent consultant on integrity and anticorruption who currently serves as the lead expert on the MATRA for enhancing the efficiency, accountability and transparency of the Judicial Council of North Macedonia .

The link between human rights and anticorruption has been much discussed over the past decade (see, for example, here and here), yet anticorruption activists often do not recognize themselves as human rights defenders, while human rights activists often fail to understand corruption as a human rights issue. In order to highlight the interconnections between the international anticorruption movement and the international human rights movement, the UN’s Special Rapporteur on Human Rights Defenders, Mary Lawlor, has decided that her next report to the Human Rights Council in March 2022 will focus on threats to human rights defenders working directly on anticorruption issues. As she put it to us in a recent interview, “This issue of corruption comes up again and again in my conversations with human rights defenders, whether anticorruption work is the main focus of what they do or not.”

Corruption can cause or facilitate human rights violations in a host of ways. To illustrate with just a few examples: Continue reading →

Anticorruption in Qatar: Policy or Politics?

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Earlier this year, Qatar’s Minister of Finance, Ali Shareef Al Emadi, was arrested on corruption charges. This news came as a veritable bombshell to those who follow the Arab Gulf region. For one thing, Al Emadi is a prominent figure, who was not only the sitting finance minister, but who had previously occupied an impressive list of leadership positions in well-known Qatari institutions, including a board position on the country’s $300 billion sovereign wealth fund, chairman of the board of Qatar Airways, and chairman of the board of Qatar National Bank, the largest lender in the Middle East. Another surprising thing about Al Emadi’s arrest is just how public—and unusually publicized—the arrest was. This contrasts strikingly with how Qatar and other countries in the region typically deal with suspected corruption of high-level officials. In such cases, the investigation is usually kept private and, if the allegations appear to have substance, they are usually resolved through a resignation. In Al Emadi’s case, by contrast, a state-run news agency made a public announcement of the arrest and investigation, and he was removed from his post. 

It has been over six months since Al Emadi’s arrest, and the situation remains shrouded in mystery. Al Emadi has said nothing, and the only statement from the Qatari government came two days after the arrest. (That statement, by the Minister of Foreign Affairs, consisted mainly of the assertions that “no one is above the law” and the “investigation is ongoing.”) This has left news organizations and researchers to speculate about the unusual circumstances of Al Emadi’s arrest (see here, here, here, and here). One possible interpretation, advanced in a Brookings Institution piece published shortly after the arrest, is that Qatar’s unusual action in the Al Emadi case—publicly announcing the arrest of a high-profile figure in a country (and region) where such officials are virtually never prosecuted for corruption—may signal a real shift in Qatar’s policy, one that may be part of a genuine push for better, more honest governance. A former economist at Qatar’s central bank expressed a similarly optimistic interpretation, asserting that the arrest “sends a powerful message to all Qataris about the government’s newfound eagerness to fight corruption.” 

This is of course possible, but we shouldn’t get our hopes up. Al Emadi’s arrest, and the unusual publicity it received, may have less to do with a real shift in the Qatari government’s approach to fighting corruption, and more to do with political calculations.

Continue reading →

The Weaponization of Anticorruption Law: Why Italy’s Legge Severino Must Be Reformed

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Back in 2012, the Italian legislature passed an anticorruption statute known as the Legge Severino. This law institutes a six year prohibition on holding elected office for politicians with felony convictions carrying sentences over two years. If convicted on an “abuse of power” charge, the prohibition on officeholding is extended to eight years. The law, which was enacted in part to effectuate Article Six of the United Nation’s Convention Against Corruption, was hailed at the time as a positive step on the road to a less corrupt Italy. (Famously, this provision initially barred Silvio Berlusconi from office after he was sentenced to four years in prison for tax evasion.) The logic behind passing laws of this sort (which also exist elsewhere) is fairly clear, especially in a country like Italy which has struggled with endemic political corruption: intuitively, those who have abused the public trust by committing serious criminal offenses should not be allowed to hold elected office.

But a recent case in Calabria, involving Domenico “Mimmo” Lucano, the former mayor of the town of Riace, highlights problems with the law—in particular, how the law can be weaponized to take down politicians who are fighting corruption and organized crime. Continue reading →

Defining Corruption: How Readers’ Views Align with Courts and Other Authorities

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There has been a vigorous debate on the blog about the definition of corruption with distinguished academics and practitioners weighing in on what they argue constitutes corrupt behavior by a public official.

Readers will recall that in early November I asked what they thought. I described six cases where a court, ethics agency, or public opinion had decided whether certain conduct was corrupt, and without revealing how the authority ruled, readers were invited to say what they thought. A number did, often with thoughtful explanations supporting their view.

Below is how their answers compare with the authority who made the decision. As the tabulated replies show, readers are far tougher when it comes to ruling conduct corrupt than courts or even the most important court of all, the court of public opinion. The rationale behind the authority’s decision follows. Comments invited.

CaseCN.C.
1. Vanuatu majority government provides MPs positions in return for vote against no confidence measure. Court ruling: NOT CORRUPT34
2. U.S. Senate seat in return for appointment to cabinet. Court ruling: NOT CORRUPT52
3. Oakland Mayor oversees redevelopment funds to neighborhoods that could include his own. Court ruling: NOT CORRUPT (technicality)13
4. Independent New South Wales MP resigns seat in return for job in public service. Public Opinion: CORRUPT51
5. Appointee in newly elected Kentucky government asks for share of fixed commission government pays for insurance. Court ruling: NOT CORRUPT50
6. Canadian PM lobbies national development bank to loan to hotel abutting golf course he has part interest in. Ethics counsellor: NOT CORRUPT40

Continue reading →