Civil asset recovery actions against kleptocrats stashing their loot in luxury real estate abroad has become a hot new topic in the global anti-corruption movements with the publication of Public Wrongs, Private Actions. This handy guide empowers developing nations with realistic tools to hunt down the stolen assets secreted abroad. Civil lawsuits, unlike criminal cases, do not normally require dual criminality and are therefore often the best and only possible remedy.
Although there is some danger of overreaching by enforcers because the procedural protections in civil cases are significantly lower than criminal procedures, the high level of transparency and media attention combined with a lack of profit motive for the enforcing agency should prevent most abuses of power. Applying U.S. local domestic law critiques unreflectively to these cases is to fundamentally misunderstand the nature of international and comparative law operating in the global anti-corruption movements.
Whether these new civil action tools will prove significant is not yet clear. Yet I do want to raise one issue that I believe may be the make-or-break problem for the legitimacy of the current anti-corruption movements.
Harassment of political opponents through selective prosecution of “corruption” cases is a time-honored practice in the People’s Republic of China, where the Beijing crowd prosecutes the Shanghai crowd, and vice versa, each time the power shifts. Putin’s Russia is in danger of becoming a global laughingstock for its heavy-handed prosecutions of those perceived as political opponents. And of course in my beloved native city of Chicago, Republicans prosecute corrupt Democrats, and vice versa, with great vigor and self-righteousness.
Selective prosecution of political opponents undermines the very legitimacy of the anti-corruption reform efforts. It is the most cynical abuse of power to use corruption as the tool to persecute only the other faction while leaving the corruption in the dominant faction untouched.
In the context of civil asset recovery actions, because the assets are by definition stashed in a different country, any attempt to pursue the assets requires cooperation from both nations. Developed nations must be alert to any pattern of enforcement that targets only the opposition while leaving the ruling group’s assets intact.
Academics who are able to crunch the numbers should be really encouraged (perhaps with actual grant money?) to track the political impacts of targeted assets to ensure that the anti-corruption regime does not become a tool to oppress opponents.
The importance of a free media, with journalists able to publish without fear, will be the most important tool for ensuring the legitimacy of civil asset recovery as a movement for social and economic justice.
Real reform prosecutes our friends as well as our enemies if there is evidence of corruption. It’s a fairly simple concept and has a great soundbite: “Equal Justice Under Law.”
Elizabeth Spahn is a contributing editor of the FCPA Blog. She served as professor of law at New England Law | Boston from 1978 until 2014 where she taught anti-corruption law, constitutional law, first amendment law and employment law. She is currently Professor of Law Emerita.