Published in April 2018

Regional Perspectives: Pacific Islands Region - added in November 2019

Regional Perspectives: Eastern and Southern Africa - added in April 2020

 

 
   This module is a resource for lecturers  

 

Links between organized crime and corruption

 

Although there is no universally agreed definition on corruption, it has been described in generic terms as the use of public office for private gain or the abuse of entrusted power for private gain. It subverts legitimate governmental processes, misspends public's money, and undermines public confidence in government. Corruption supports the ongoing existence of organized crime, because corrupt public officials protect organized criminal groups from law enforcement and disruption (Rose-Ackerman and Palikfa, 2016; Rowe, Akman, Smith and Tomison, 2013; Transparency International, 2017; White, 2013).

It is difficult to keep a continuing criminal enterprise profitable and survive over the long term unless there is a means to protect it from law enforcement, which ultimately learns of its existence. For example, border crossings need to be ensured, locations of illicit activity "protected," police or customs officials paid off, illicit funds delivered and deposited, court cases "fixed," stolen property bought and sold, and politicians persuaded not to interfere. These are examples of the kinds of corrupt activity needed by organized criminal groups in order to remain in illicit business and engage in ongoing criminal activity without interruption.

The Organized Crime Convention addresses the criminalization of corruption in the public sector in article 8. Article 8(1) requires the establishment of two corruption-related offences: active and passive bribery. Under article 8(1)(a) States parties are required to criminalize "the promise, offering or giving to a public official, directly or indirectly, of an undue advantage in order that the official act or refrain from acting in the exercise of his or her official duties". Directly or indirectly means that the undue advantage is for the official himself or herself or another person or entity.

Under article 8(1)(b) States parties are required to criminalize "the solicitation or acceptance by a public official, directly or indirectly, of an undue advantage in order that the official act or refrain from acting in the exercise of his or her official duties." This offence is the passive version of the offence in article 8(1)(a). The required elements are soliciting or accepting the bribe.

In both provisions on active and passive bribery, the punishment is determined by the nature and seriousness of the act in question. The "undue advantage" required for bribery is ordinarily either a financial gain or some other benefit to oneself or to another in exchange for an official act. The criminal intent is generally established by the circumstances of the case in determining whether the benefit is made or received for an illegal purpose.

The question of bribery involving officials of other countries ("foreign public officials") and international civil servants is addressed by article 8(2) of the Organized Crime Convention,which requires that States give serious consideration to the introduction of such an offence.

Corruption is also the focus of a separate Convention, the United Nations Convention against Corruption (hereinafter Convention against Corruption) that entered into force in 2005. It is a comprehensive normative instrument and the only legally binding universal anti-corruption instrument. It addresses a broad range of issues such as prevention of corruption, criminalization and law enforcement, international cooperation, and for the first time in an international Convention, asset recovery.

The Convention against Corruption includes a comprehensive set of criminalization provisions, both mandatory and optional, covering a wide range of acts of corruption. In addition, it offers a platform not only for harmonizing national substantive provisions, but also for ensuring a minimum level of deterrence through specific provisions on the prosecution, adjudication and sanctions in corruption-related cases.

States parties to the Convention are obliged to establish as criminal offences:

  • Active and passive bribery of national public officials (art. 15);
  • Active bribery of foreign public officials and officials of public international organizations (art. 16 para. 1);
  • Embezzlement, misappropriation or other diversion by a public official of property entrusted to him (her) by virtue of his (her) position (art. 17);
  • Obstruction of justice (art. 25);
  • Participation in any capacity such as an accomplice, assistant or instigator in an offence established in accordance with the Convention (art. 27 para. 1);
  • Money-laundering (art. 23).

In addition, States parties are further required to consider the criminalization of:

  • Passive bribery of foreign public officials and officials of public international organizations (art. 16 para. 2);
  • Active and passive trading in influence (art. 18);
  • Abuse of functions (art. 19);
  • Active and passive bribery in the private sector (art. 21);
  • Embezzlement of property in the private sector (art. 22);
  • Concealment or continued retention of property knowing that such property is the result of any of the offences established in accordance with the Convention (art. 24);
  • Any attempt to commit, or preparation for, an offence established in accordance with the Convention (art. 27 paras. 2 and 3);
  • Subject to constitutional provisions and the fundamental principles of national legal systems, the criminalization of illicit enrichment (art. 20).

The inclusion of optional criminalization provisions was deemed necessary because of the fact that there may be criminal offences which some countries may have already established in their domestic law, or may find their establishment useful in fighting corruption, but other countries would be unable to do the same, often because of constitutional impediments. Further details about the Convention against Corruption are given in Module 14.

Establishing illicit enrichment as a criminal offence: human rights implications?

Often, the only tangible evidence that a crime has taken place is the money that changes hands between the corrupt official and his or her partner in crime, thus the enrichment of the corrupt official becomes the most visible manifestation of corruption. Many States have established the offence of illicit enrichment to strengthen their ability to fight corruption of public officials and recover assets. Based on the idea that unexplained wealth of a public official may, in fact, be visible proceeds of corruption, illicit enrichment was identified as a non-mandatory crime in article 20 of the Convention against Corruption and defined as a "significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income."

Human rights and constitutional arguments often arise in discussions surrounding the criminalization of illicit enrichment. One critical issue subject to ongoing debate relates to the perceived reversal of the burden of proof. Article 20 maintains that the significant increase in the assets that amounts to the crime of illicit enrichment is one that the public official cannot reasonably explain. This perceived reversal of the burden of proof in a criminal case is regarded by some as a potential violation of fundamental human rights that protect the defendant, in particular the presumption of innocence - which requires the State to prove the guilt of an accused and relieves the accused of any burden to prove his or her innocence - and the related rights to silence and protection against self-incrimination.

However, it should be noted that there is no presumption of guilt in such cases and that the burden of proof remains on the prosecution, as it has to demonstrate that the enrichment is beyond one's lawful income. It may thus be viewed as a rebuttable presumption (i.e. an assumption of fact accepted by the court until disproved by evidence). Once such a case is made, the defendant can then offer a reasonable or credible explanation.

Organized criminal groups use all forms of corruption to infiltrate political, economic and social levels all over the world. Through corruption criminal groups generate poverty, as corruption determines the misuse of public resources by diverting them from sectors of vital importance such as health, education and development. Therefore, corruption prevention and investigations in all sectors are necessary to reduce the ability of organized criminal groups to survive and profit, and for a society to achieve sustainable development.

 

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