Verdicts and Judicial Strength: Why Convictions Should Not Be the Focus of Anticorruption Efforts

As I discussed in my last post, effective anticorruption enforcement requires a judicial system with the capacity and will to hold powerful defendants criminally liable for their malfeasance. Understandably, then, judicial institutions, especially in developing countries, are often written off as weak or corrupt if they are unable to convict and sentence high-profile corruption defendants. Acquittals can seem synonymous with impunity, regardless of the justifications put forth by the court. On this measure, many domestic judiciaries charged with high-profile cases fail. For example, almost all of the central figures ousted in the 2011 Arab Spring uprisings in Egypt were ultimately acquitted of all corruption-related charges. Additional examples of high-profile corruption acquittals or dismissals abound around the world (see here, here, here, here, and here).

To be sure, the inability of many judiciaries to hold high-profile corruption defendants criminally accountable is often indicative of underlying problems in the court system, and these problems must be addressed. At the same time, though, I worry that domestic and international constituencies sometimes put too much emphasis on individual verdicts, or overall conviction rates, as the measure of judicial effectiveness. While these indicators can provide important information, overemphasizing guilty verdicts in particular corruption cases, or overall conviction rates, could actually be counterproductive to anticorruption progress, for at least three reasons: Continue reading

Egyptian Courts Should Permit Money Laundering Convictions without Conviction on the Predicate Offence

Prosecuting money laundering and corruption are inextricably interwoven. Corrupt officials, like other sophisticated criminals, frequently resort to various forms of money laundering to conceal their ill-gotten funds. That is why the UN Convention Against Corruption (UNCAC) adopted a specific article addressing money laundering. One of the legal challenges in prosecuting money laundering, however, is proving that the property involved is the proceeds of a crime. And one of the ongoing legal controversies on this point concerns whether proving that element of the money laundering offense requires, as a prerequisite, a prior or simultaneous criminal conviction for the predicate offense. Different legal systems have taken different positions on this question, which is perhaps unsurprising. More striking is the fact that, within Egypt right now, this question has divided the circuits of the Court of Cassation (the highest Egyptian criminal court), with no immediate resolution in sight.

One circuit has adopted a “restrictive approach” that requires a prior or simultaneous conviction of the predicate offense as a precondition for a money laundering conviction.  Although a majority of lower courts apply this restrictive approach, another circuit has held—in the case against former President Mubarak’s Minister of interior—that although the prosecution must prove beyond a reasonable doubt the illicit origin of the money to secure a money laundering conviction, the prosecution can establish this fact in other ways; a prior conviction for the underlying offense is not necessary. This division of opinion has persisted despite the fact that there is a provision calling for the Court of Cassation’s General Assembly to vote on controversial matters. Unfortunately, the Court does not apply this provision rigorously.

Although both positions have some merit, the Court of Cassation’s General Assembly–or, if it fails to act, the Egyptian legislature–should reject the restrictive approach and allow the prosecution to prove the elements of money laundering, even in the absence of a conviction for the predicate offense. The purported disadvantages of that approach are greatly exaggerated, and it would enhance the Egyptian government’s capacity to combat high-level official corruption, as well as other serious offenses. Continue reading