This Anti-Corruption Helpdesk brief was produced in response to a query from one of Transparency International’s national chapters. The Anti-Corruption Helpdesk is operated by Transparency International and funded by the European Union.
Query
Please provide an overview of recent debates and country experiences with reparation for social damage in corruption cases.
Purpose
To inform discussions on incorporating reparations for social damage in corruption cases in Colombia’s legal framework.
Content
- Recent debates on reparations for social damage in corruption cases
- Country experiences in instituting reparations for social damage in corruption cases
- References
Summary
The concept of "social damage" is an emerging concept in the anti-corruption movement, which seeks to identify, quantify, and repair the impact and consequences of corruption on ordinary citizens. It applies to individuals as members of a community, and/or identifiable groups affecting specific rights, rather than any individual in particular.
The United Nations Convention against Corruption (UNCAC) provides a useful starting point for the development of national legal frameworks for reparations in the context of damage caused by corruption. At the practical level, mechanisms which may be employed to seek reparations for social damages include: explicit reparation mechanisms for collective damage; class actions or other public interest litigation mechanisms; civil law mechanisms; criminal procedures; and the use of constitutional and administrative law. At the same time, there are increasing attempts to use recovered assets for repairing social damage from corruption through a number of budgetary channels including enhanced country systems, autonomous funds and management by third parties.
Country experiences demonstrate how such mechanisms have been used successfully to date. One example that stands out is that of Costa Rica where the government formally presented the legal concept of social damage to the 4th Conference of State Parties (CoSP) to the UNCAC in 2011. The Costa Rican legal framework offers numerous opportunities to pursue social damages for corruption thanks to the constitutional right of citizens to enjoy an environment free of corruption, coupled with the attorney general’s power to launch civil action in cases of damage to collective or diffuse interests and the recognition of organisations as victims in such cases.
Despite these successes, numerous challenges remain, not least with regard to identifying the victims and establishing legal standing of complainants, calculating the scale of the damages to be repaired and using monetary sanctions from foreign bribery cases to finance reparations for social damages.
Authors
Andy McDevitt, Transparency International, [email protected]Reviewers
Adam Foldes, Transparency International, [email protected]Date
23/06/2016
