Prosecuting Public Officials for their Mistakes

In July 2011, Yingluck Shinawatra became Prime Minister of Thailand after her party (founded by her brother, former Prime Minister Thaksin Shinawatra) won a decisive electoral victory. One of her principal campaign promises was to establish a program to purchase rice from farmers at above-market prices then store the rice to reduce supply. The hope was that doing so would increase world prices—because of Thailand’s position as the leading global rice exporter—ultimately allowing the government to sell at a profit. Shortly after the election, Yingluck’s government implemented this program, and it worked well for a few months—until other global players increased their supply of rice, causing Thailand to lose billions of dollars in the process. This economic debacle was entirely predictable—and indeed was predicted by many experts. And the program itself was beset by allegations of fraud and corruption in its implementation.

But should the failure of the rice-buying program be the basis of a criminal charge of corruption and a prison sentence against Yingluck herself, in the absence of evidence that she was directly involved in any embezzlement, bribery, or other more conventional forms of graft? Section 157 of Thailand’s Penal Code allows for just such a prosecution, as this section makes it a crime for a public official to either dishonestly or “wrongfully discharge or omit to discharge a duty so as to expose any person to injury.” And last month, the Thai Supreme Court found Yingluck (out of power since she was deposed by a military coup in 2014) guilty and sentenced her to five years in prison. She fled the country before the verdict.

Thailand is not alone in adopting anticorruption laws that criminalize not only dishonest conduct (bribery, embezzlement, conflict of interest, etc.), but also negligence or incompetence. When India updated its anticorruption law in 1988, it added a new provision that makes it a criminal offense for a public official to “obtain for any person any valuable thing or pecuniary advantage without any public interest.” This broad offense was interpreted by a state High Court to not require any proof of dishonesty or criminal intent, and the Central Bureau of Investigation (India’s premier anticorruption agency) has routinely employed the provision in grand corruption cases to avoid the problem of having to prove corrupt intent. In perhaps the most high-profile such prosecution, the agency went after an ex-Prime Minister, Dr. Manmohan Singh. Dr. Singh was the Minister of Coal at a time when the Government decided to liberalize allocation of coal-blocks and to sell mining rights to private parties. In 2014, the Comptroller and Auditor General’s office reported the policy had caused losses worth billions of dollars because the rights had been sold for too little, through a process that was too ad hoc to be considered legal. Dr. Singh was subsequently charged under India’s broad law, though his trial has currently been stayed while his challenge to the constitutionality the law is pending before India’s Supreme Court. (There are clearly concerns in other quarters about the breadth of this statute: In 2016 a Select Committee of the Upper House of India’s Parliament submitted a report that suggested India eliminate this offense. Parliament hasn’t yet acted on this recommendation, but there are signs that it has some support.)

Is it appropriate to enact broad anticorruption laws that allow government officials to be convicted for dereliction of duty, acting in a manner contrary to the public interest, and the like? Anticorruption activists and prosecutors may find such statutes appealing: It is easier to secure convictions of elected officials who are suspected of corruption, but where it is too difficult to prove the specific intent necessary for traditional corruption offenses. But in fact these broad laws are likely to do more harm than good, and countries like Thailand and India would be better off without them. There are three main reasons for this: Continue reading

Guest Post: The Obiang Trial Suggests Innovative Approaches To Fighting International Corruption

GAB is pleased to welcome back Frederick Davis, a lawyer in the Paris office of Debevoise & Plimpton, who contributes the following guest post:

Over the past two months, the French Tribunal de Grande Instance in Paris (the principal trial court) heard evidence in the case against Teodoro Nguema Obiang Mangue (known as Teodorin), on charges of corruption and money laundering, among other allegations. Teodorin is the son of Teodoro Obiang Nguema Mbasogo, the long-time – and notoriously corrupt – President of Equatorial Guinea, a resource-rich country that also has some of the most widespread poverty in the world. Yet Teodorin, who is currently Vice President , owns vast real estate in Paris, a private jet, a yacht, and a fleet of vintage and modern automobiles, among his other known assets. This case has been discussed extensively on this blog (see here, here, here, here, here, here, here, and here), but it’s useful to recap how the case came to trial in the first place:

The case against Teodorin was primarily the result of diligent efforts by NGOs, including the French anticorruption group Sherpa and the French chapter of Transparency International (TI). In 2007, Sherpa and others filed a complaint with the Public Prosecutor in Paris alleging that the ruling families of Equatorial Guinea, Angola, Burkina Faso and the Republic of the Congo held assets in France that were not the fruits of their official salaries. After a brief investigation, the Public Prosecutor dismissed the claims. Several of the NGOs, joined in some instances by citizens of the countries in question, then used a French procedure known as constitution de partie civile to cause a criminal investigation by an investigating magistrate (juge d’instruction). This effort was opposed by the Public Prosecutor. A Court of Appeals initially upheld the prosecutor’s position and dismissed TI’s intervention, but in an important 2010 ruling, the French Cour de Cassation (Supreme Court) ruled that TI was a proper partie civile authorized to instigate the criminal investigation. Ultimately Teodorin was bound over for trial, now with the support of the Public Prosecutor (as well as the continued active participation of TI and other NGOs). A decision is expected in October.

The procedures that brought Obiang to trial are interesting because they highlight four important differences between French and US criminal procedures, and more generally illustrate several legal deficiencies, in countries like the United States, that often hinder the worldwide fight against transnational corruption: Continue reading

Anticorruption Investigators and Prosecutors: Bookmark this Web Site!

The International Anticorruption Resource Center, a Washington-based group of American investigators and former prosecutors, has developed a first-class web site on how to investigate and prosecute corruption crimes that everyone in the business of investigating or prosecuting corruption crimes should bookmark.  Divided into three main sections – Detection, Proof, and Evidence – the site guides the reader through the entire process of developing and presenting a corruption case: from the first interview with a whistleblower through assembling the facts to proving them in a court of law.  While there are any number of Web sites with material useful for investigators and prosecutors (here and here for examples), this is the only I have found that pulls together in one place the basics that every anticorruption investigator or prosecutor needs.

Although clearly aimed at those in the early stages of their career, I recommend that even the most harden veterans peruse the site.  They will find it a valuable refresher and may well find some helpful tips.  Two pages I particularly liked were – Continue reading

Can Private Prosecution Fill the Corruption Enforcement Gap?

A common lament within the anticorruption community is that too few corrupt officials are prosecuted.  The reasons offered are several: a lack of resources, the want of expertise, political pressure.  Whatever the case, for countries struggling to combat corruption, stepping up prosecutions is essential, for deterrence theory teaches that until public officials face a real threat of prosecution for raiding the public purse, corruption levels will continue to remain unacceptably high.

Where corruption prosecutions are lagging, it is often assumed that the only remedy is to strengthen government prosecution agencies, but this is in fact not always the case.  In many countries the public prosecutor is not the only one with the right to prosecute those accused of a crime.  Thailand, Taiwan, certain American states, and virtually all 53 members of the British Commonwealth allow private citizens to prosecute offenders, and there is no reason other countries couldn’t allow private prosecution as well.

In “Private Prosecutions: A Potential Anticorruption Tool in English Law,” British lawyers Tamlyn Edmonds and David Jugnarain explain the role private prosecution has played in the enforcement of the criminal law in England and Wales and argue it is one way to boost  corruption prosecutions in these jurisdictions and perhaps in others as well.  The Edmonds and Jugnarain paper is the fourth in the series of papers commissioned by the Open Society Justice Initiative on civil society and anticorruption litigation.  It follows earlier ones on standing by GAB editor-in-chief Matthew Stephenson, on civil society litigation in India by Vidhi Centre for Legal Policy Director Arghya Sengupta, and on the American experience with the False Claims Act by Houston Law Center Professor David Kwok.  As with the papers by Matthew, Arghya, and David, Tamlyn and David’s contribution provides civil society activists and policymakers wanting to bolster the enforcement of anticorruption laws in their country much to consider.

Corruption By Another Name: The Conviction of a Rapist Cop

Former Oklahoma City police officer Daniel Holtzclaw was convicted earlier this month of sexually assaulting over a dozen women while on duty. Holtzclaw’s attacks were despicable. Several of his victims reported that he threatened to arrest them if they did not comply with his sexual demands. In some instances, he made clear that his victims had to provide him with sexual gratification to avoid arrest—an explicit quid pro quo exchange. In other cases, including the case that triggered the investigation into his conduct, Holtzclaw did not explicitly solicit a sexual bribe, but there was still an implicit quid pro quo – if the woman let him get away with the assault he indicated that he wouldn’t make trouble for her.

Holtzclaw is a rapist, but he is not only a rapist – he is also a dirty cop. The fact that he was a police officer is not incidental to his crimes: he was able to sexually assault women and get away with it for so long precisely because of his publicly entrusted power. That abuse of public power for private gain is the definition of corruption. As pointed out in a previous post, the currency of corruption can as easily be sex as money. When a police officer, soldier, immigration official, or judge demands sex in exchange for an official action, that is a type of quid pro quo sexual corruption (sometimes called “sextortion” ). When an official “steals” sex from a woman who is less able to resist the attack or to report it due to his publicly entrusted power, that is another type of sexual corruption. In addition to sexual assault, then, Holtzclaw should have also been charged with bribery and official misconduct.

Continue reading

France’s Failure to Fight Foreign Bribery: The Problem is Procedure

When it comes to effective implementation of the OECD Anti-Bribery Convention, France is the black sheep of the herd. In 2012, the OECD’s Working Group on Bribery’s Phase 3 Report praised France’s efforts to enact an adequate legal framework, but expressed concerns on the low number of convictions. Two years later, the Working Group reiterated its concerns that France was insufficiently compliant with the Anti-Bribery Convention, and the EU’s 2014 Anti-Corruption Report expressed similar worries. In 2015, Transparency International placed France in the category of “limited enforcer” and has stated that France had failed to prosecute foreign bribery cases efficiently. Indeed, in the 16+ years since the OECD Convention came into force, no companies have ever been convicted in France for foreign bribery, and only seven individuals have been found guilty. The only French-led conviction against a company–Safran–was overturned on appeal last January. Even in this case, on appeal, the prosecution did not seek the conviction of the corporation, stating that the conditions to corporate criminal liability were not met (the court of appeal did not rule on that specific issue, and overturned the conviction on factual grounds).

The low number of French convictions for foreign bribery offenses is not due to the fact that French corporations do not bribe. In fact, a recent study on purchasing activities in the private sector showed that 25% of the Chief Purchasing Officers in France have been offered bribes by other French companies. And French companies have often been penalized by more aggressive enforcers, particularly the United States, when they have jurisdiction. (Most recently, Alstom agreed to pay a $772 million fine for violating the U.S. FCPA by bribing officials in several countries.) While some in France have grumbled about U.S. overreach, others in France share the views of the President of Transparency International France, who declared (in reference to cases like Alstom), “It’s humiliating for everyone in France that our judiciary is not capable of doing the work themselves”.

Why is France such a laggard with respect to its enforcement obligations under the OECD Convention? The issue is not France’s domestic legislation criminalizing foreign bribery, which is more than adequate. The real issue resides in France’s failure to enforce these laws. And the explanation for this lies not in France’s substantive criminal law on corruption, but rather in a number of important aspects of French criminal procedure and prosecutorial practices. Continue reading

Should Anticorruption Agencies Have the Power to Prosecute?

One of the main reasons policymakers cite for establishing a standalone, independent anticorruption agency is the need to strengthen the enforcement of their nation’s laws against bribery, conflict of interest, and other corruption crimes.  In the past 25 year some 150 countries have created a specialized, independent agency to fight corruption (De Jaegere 2011), and virtually all have been given the lead responsibility for investigating criminal violations of the anticorruption laws.  But while a broad international consensus exists on the value of creating a new agency with investigative powers, opinion remains sharply divided on whether these agencies should also have the power to prosecute the crimes it uncovers.  As this is written, Indonesian lawmakers are considering legislation to strip its Corruption Eradication Commission (KPK) of the power to prosecute while a bill before the Kenyan parliament would grant its Ethics and Anticorruption Commission (EACC) the power to prosecute the cases it investigates.

No matter the country, debate about whether a single agency should have the power to both investigate and prosecute corruption cases inevitably comes down to a small set of conflicting claims.  Those who oppose giving a single agency both powers raise an argument at the center of the older debate about the relative responsibilities of police and prosecutors — investigator bias.  In the words of a British Royal Commission that studied the relationship between English police and prosecutors, an investigator “without any improper motive . . . may be inclined to shut his mind to other evidence telling against the guilt of the suspect or to overestimate the strength of the evidence he has assembled.” That is, once an investigator hones in on a suspect, confirmation bias sets in, and he or she will interpret all evidence as supporting the suspect’s guilt.  Putting the decision about whether to prosecute a case in an agency wholly separate from the one that investigates provides a strong check against such bias, reducing the chances that the innocent will be put to a trial or weak cases brought to court.

The investigator bias argument has a long and distinguished pedigree, and a 2011 survey of the powers of 50 anticorruption agencies by World Bank economist Francesca Recanatini found that it often carries the day.  Only half of the 50 agencies she surveyed have both investigative and prosecutions powers.  But as the contemporary debates in Indonesia and Kenya suggest, proponents of combing investigation and prosecution in a single agency have a very powerful counter argument in their corner.  Continue reading