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When fighting kleptocrats, civil actions are still a potent weapon

Someone recently told me that it was more important “optically” to prosecute corruption than to focus on recovering assets. Yet history tells us that prosecutions for kleptocracy are rare. And even when convictions happen, the merry-go-round of politicians prosecuted for graft, only to be released after the next elections, is nothing short of a tragic comedy.

Worse, many of those who are convicted thumb their nose at the voting public, by returning to their gilded mansions (bought through illicit means) to serve their sentence under restricted, but comfortable, house arrest for “medical reasons.” Strange how so many kleptocrats become seriously ill after arrest…

A change in the way we prosecute corruption is needed if we are to have any hope in deterring and holding to account those who unscrupulously take advantage of human suffering and economic disruption. In my view, that means celerity in the investigation and prosecution process, sufficient severity within the law for reprimanding corrupt acts, and the certainty that the person will not benefit from their illicit gains.

Some or all of these deterrents are often lacking in prosecutions involving kleptocrats. In my view, better outcomes can be achieved through civil recovery. Even where the political will to pursue convictions exists, criminal prosecutions are harder to initiate, the burden of proof higher, and the resources available to see an investigation through to the end are sometimes limited.

Seeking civil recovery in parallel ensures that the law is still able to provide restitution:

  1. Civil actions are often quicker to initiate and can cross borders more swiftly.
  2. They provide a degree of certainty based upon a balance of probabilities or preponderance of the evidence, rather than beyond all reasonable doubt, that unjustified wealth was gained through illicit means.
  3. The loss of businesses, reputation, profits, and illicit wealth following a successful civil recovery case demonstrates a commitment to disciplining corruption within government.

Despite knowing that it is often possible to bring actions in parallel by staying the civil action until the outcome of the criminal trial, this approach is still resisted in many quarters. It is not my view that civil actions should compete with multilateral actions and criminal justice alternatives to recovery; however, there is room for a dual process that results in a more effective deterrence and restitution.

So let us not just convict for the crime, but also confiscate its spoils. Let us focus on anti-corruption measures to prevent and also to deter corruption through civil confiscation mechanisms. Deterrence must be part of prevention. It is an irresponsible government that fails to take steps to recover stolen public property while livelihoods are directly impacted to the extent that we have already witnessed.

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2 Comments

  1. I appreciate the point, which is well made. Unfortunately, we have been attacking the proceeds of crime for many years/decades now. Only 2% of the estimated proceeds passing through the UK have been successfully seized and globally the levels of corruption are still increasing (Transparency International). It is important to tackle both the illicit activity and the proceeds, but, for all its flaws, attacking and threatening kleptocrats has had some success, and it has a better chance than the continuation of the current focus on proceeds primarily, which has so far led to no reduction in corruption, human rights abuse, torture, bribery & slavery – none of which could really occur according to experts, without corruption.

  2. Hi, Angela – I agree with you, those who steal should not keep the proceeds, especially when the victims of the crime are the struggling citizens of their own country. We need to stop accepting excuses for not acting, and look at ways to pursue this vigorously. Let these thieves return to living in the manner of the people of their own countries, those who remain impoverished because of the theft by kleptocrats. They should not retire to villas in Europe.

    Is it difficult to create effective remedies? So what. Just because it is hard work to do something is not an excuse for not doing it. We need voices like yours to keep pushing this. Cheers, Joe


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