Tag Archives: burden of proof

Nearly 20 Years in Legal Limbo: Egypt’s Illicit Gains Framework

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Criminal laws against “illicit enrichment” or “unexplained wealth” are among the more potent tools in the anticorruption toolbox. Though details vary across countries, typically an illicit enrichment law criminalizes a public official’s failure to provide a legitimate explanation for their possession of assets in excess of their lawful sources of income. The advantage, from an anticorruption perspective, of criminalizing illicit enrichment is the alleviation of the burden on the prosecution to gather evidence sufficient to prove bribery or embezzlement, which can often be difficult or impossible. Corruption can be inferred, the logic goes, from the government official’s possession of unusual and unexplained wealth. A further advantage is the law’s ability to capture instances of “influence peddling,” where a public official’s conduct might not have violated the specific laws on bribery and embezzlement, but still involves exploitation of authority to obtain gratuitous favors or preferential treatment that may show up in the form of unexplained wealth. 

Illicit enrichment laws, however, have proved controversial because they seem to shift the burden of proof from the prosecution to the defendant, thus violating the bedrock principle of the presumption of innocence. Many experts disagree with this criticism, and constitutional courts in many countries have rejected it. However, some governments, and some constitutional courts, continue to maintain that illicit enrichment laws are incompatible with constitutional guarantees related to the presumption of innocence.

Reasonable people can disagree about whether illicit enrichment laws in any given country are constitutional, but one would think that the issue would be settled one way or the other. In Egypt, however, this constitutional controversy has led to a bizarre legal limbo that has persisted for nearly two decades. Continue reading →

Guest Post: U.S. Constitutional Principles Do Not Preclude Burden-Shifting or Illicit Enrichment Offenses

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Peter Leasure, Ph.D. candidate in criminology and criminal justice at the University of South Carolina, contributes the following guest post:

It is well known that corrupt kleptocrats often transfer enormous sums of money from their countries. As a result, there has been a growing emphasis on attempts to freeze, seize, and return stolen assets to their jurisdiction of origin. However, countries vary in the legal mechanisms they have to achieve these objectives. One common fixture of many of these legal mechanisms is the requirement that the assets (or the capital used to acquire them) be traced to a predicate offense. However, meeting this requirement can sometimes be difficult, which hinders asset recovery proceedings.

To address this problem, some jurisdictions, such as France, have adopted a burden-shifting approach. Under the relevant provisions of the French Criminal Code, officials have the burden to account for the lavish assets they have acquired once claims of corruption arise. A similar sort of burden-shifting takes place under so-called “illicit enrichment” or “unexplained wealth” statutes. Under such statutes, a government official can be criminally liable if the official has substantial assets that he or she cannot adequately explain. In other words, once the government proves that the corrupt official has assets grossly disproportionate to his or her official salary, the burden shifts to the defendant to prove that the assets have a legitimate origin. Many countries have adopted statutes of this sort. Moreover, some international anticorruption conventions, such as the Inter-American Convention Against Corruption (IACAC), expressly call for the adoption and enforcement of such laws.

The U.S. takes a different approach. The U.S. made this clear in filing a reservation to the IACAC’s illicit enrichment section (Article IX), in which it stated that the offense of illicit enrichment set forth in 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.”

But is it always the case that the government bears the burden of proof in the U.S.? In fact, it is not. There are numerous examples of areas from U.S. criminal law where burdens are shifted from the government to the defendant. Continue reading →