Can “Force Majeure” Be A Justification for Corruption? Russia Believes So.

In late January of this year, the Russian Justice Ministry proposed draft legislation that would legalize corruption. More specifically, the proposal, which implements one of the recommendations of Putin’s 2018-2020 Anti-Corruption Plan, would decriminalize corruption “when non-compliance with prohibitions, restrictions, and requirements established in order to combat corruption… [is] due to force majeure”—that is, when circumstances beyond the official’s control make corruption unavoidable. Or, as the Russian government puts it, “[i]n certain circumstances, the observance of restrictions and prohibitions, requirements to prevent or resolve conflicts of interest, and the fulfillment of duties established in order to combat corruption are not possible for objective reasons.” The proposed legislation would create a commission to “assess the objectivity of circumstances” to determine if compliance was possible.

What are these alleged “objective reasons” that might establish a force majeure defense to corruption charges? In contract law, force majeure—sometimes known as an “act of God”—covers unforeseen circumstances, like natural disasters or wars, that are totally outside the control of the parties to the contract, and that make it impossible for one of those parties to perform his or her end of the agreement. But what could force majeure possibly mean in the context of corruption? What circumstances, equivalent to a war or natural disaster, could compel a government official to take a bribe, or embezzle public funds? It is difficult to imagine such a scenario. The Justice Ministry did release a preliminary statement with some initial clarification into the type of circumstances that might trigger this force majeure exemption from criminal liability. That statement noted, for example, that it may not be possible for officials to take the usual measures to prevent or resolve conflicts of interest when the officials are posted in small, remote areas. The idea seems to be that is such settings the community is so small and close-knit that it wouldn’t be feasible for an official to recuse from all decisions in which she might have personal relationships with some of the parties affected. The preliminary statement also noted that sometimes former family members (say, ex-spouses) do not agree to provide information on income and expenses of common children (information that officials are usually obligated to disclose), and that sometimes non-performance of certain duties related to anticorruption might be due to a prolonged and serious illness. The Justice Ministry promised that it would provide more specific information on what constitutes force majeure after the proposed rule’s comment period closed on February 8, 2019. The government has not yet done so, however, despite the fact that more than a month has passed.

At least some of the force majeure examples in the Justice Ministry’s preliminary statement sound reasonable, though it’s not clear whether the special exemption is really needed to deal, say, with an official who isn’t performing certain duties because of a debilitating illness. (Presumably, that official would be on indefinite leave anyway?) But the legislation is written much more broadly than these narrow examples would suggest. Would the new legislation allow individual bribe-payers and bribe-takers to assert a force majeure defense on the grounds that they didn’t create the “culture” or “system” of corruption in which they find themselves embedded? If that counts as force majeure, it would open a giant loophole allowing in Russia’s anticorruption laws, allowing anyone accused of corrupt action to argue that they felt pressured by (social) forces beyond their control. The proposed legislation could be read that way, and if it is, it would undermine efforts to combat corruption. Indeed, one cannot help but wonder if that is the exemption’s purpose. Moreover, by taking the position that certain offenses shouldn’t count as corruption at all, the proposal sends a signal that corruption is not a priority for the Russian government, thus providing room for further loosening of corruption legislation.

Now, the Russian government might be sincerely concerned about not over-punishing people who technically violated the law but do not seem sufficiently blameworthy to deserve harsh sanctions. But if that is the worry, there are other ways to address it, ones that don’t risk creating an enormous loophole in anticorruption laws and that don’t send the signal that the government might not take corruption that seriously. Here are three alternatives to decriminalizing corruption that Russia’s Justice Ministry could consider:

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Reasons for Optimism About Latin America’s Wave of Anticorruption Prosecutions: A Response to Professor Balan

What are we to make of the ongoing wave of corruption prosecutions sweeping Latin America in the wake of the Odebrecht scandal? Many are optimistic that these prosecutions, several of which have implicated very senior political figures, including current and former presidents, signal a turning point for the region. But in a guest post last September, Professor Manuel Balan suggested that this optimism may be misplaced, for three reasons. First, he argued that the enforcement patterns suggest that anticorruption prosecutions are becoming a weaponized—that these prosecutions are being used as a political tool used to bring down opponents, and consequently they lack credibility with much of the public. Second, Professor Balan questioned whether these prosecutions would ultimately be successful in holding powerful, popular wrongdoers accountable, and he argued that these prosecutions will just take down leaders whose positions have weakened for other reasons (such as Dilma Rousseff in Brazil). Third, Professor Balan worried that these prosecutions show that judicial power is increasing at the expense of citizens’ power—that they represent an erosion of “vertical accountability.”

I remain one of the optimists. Indeed, I think that Professor Balan is far too pessimistic about the role that the current anticorruption prosecutions in Latin American can play—and to some extent have already played—in addressing the region’s longstanding corruption and impunity problems. Yet his three objections are worth taking seriously and deserve a direct response. Here’s why I don’t find any of them sufficiently persuasive to share his pessimism:

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Combating Corruption in Belize Requires Structural Modifications to the Ombudsman’s Office

In the small Caribbean nation of Belize—as in many small, relatively poor countries with scarce human capital—corruption is an entrenched part of government and society. The country’s small population—less than 400,000—exacerbates issues such as nepotism and conflicts of interest, and make it difficult to hold corrupt actors accountable. Citizens harmed by corruption are understandably reluctant to report these incidents when the people to whom they would have to report are the corrupt actors’ close friends and colleagues—or in some cases the corrupt actors themselves. In an attempt to address this problem, Belize (following suit with the rest of the Caribbean) adopted an Ombudsman Act in 1994 and, pursuant to that Act, established the Office of the Ombudsman in 1999.

There is considerable variation in the role that similarly-named “Ombudsman’s Offices” play in different countries; Belize employs the classical model of an Ombudsman, though the Belizean Ombudsman has a broader human rights and anticorruption mandate than the typical Ombudsman. The Ombudsman can receive complaints from any person who alleges injustice, injury, or abuse by an authority; complaints are handled anonymously, outside of what is perceived as a corrupt system. Additionally, the Ombudsman is responsible for investigating those complaints, and it has investigative powers comparable to a judicial tribunal, which is necessary to secure crucial information from the government. The Ombudsman, which acts independently of the Government of Belize, would ideally play a significant and constructive role in combating corruption.

For these reasons, one might think that Belize’s Ombudsman is well-positioned to take a lead role in anticorruption. Yet it doesn’t seem to be doing so. Citizen complaints to the Ombudsman are relatively infrequent (only 122 new complaints were received in 2017, down from 207 new complaints filed in 2016), and of those complaints, very few concern government corruption. And when it comes to larger anticorruption reform strategy, it’s perhaps telling that the UN’s Project Document on strengthening Belize’s national systems to support the implementation of the UN Convention Against Corruption doesn’t even mention the Office of the Ombudsman as a potential avenue for supporting UNCAC’s implementation.

What could be done to make the Belizean Ombudsman’s Office a more significant and effective player in this small country’s struggle against entrenched corruption? Three things:

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