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
Could you provide examples of regulations criminalising illicit enrichment in fulfilment of Article 20 of the United Nations Convention against Corruption (UNCAC)? Has the criminalisation of illicit enrichment improved the efficacy of judicial bodies in investigating and prosecuting corruption?
CONTENT
1. Benefits and challenges associated with the offence of illicit enrichment
2. International legal precedents
3. Examples of national legal frameworks
CAVEAT
Given the current debate occurring in Portugal the response will focus more extensively on the legal measures that permit a “reversal” of burden.
SUMMARY
Regional and international agreements such as the Inter-American Convention against Corruption (1996) and the UNCAC (2005) encourage state parties to criminalise illicit enrichment as part of efforts to combat corruption, money laundering and organised criminal networks.
Yet, due process concerns and the protection of the rights of the defendant have created challenges in related legislation. The offence of illicit enrichment has been criticised as falling into conflict with human rights law standards for a fair trial. At the same time, international cooperation and mutual legal assistance can make legal enforcement challenging.
As noted in the case of Portugal, there is a concern that adopting legislation on illicit enrichment would violate one’s constitutional rights of presumed innocence until proven guilty. To generate proof, many countries, including Portugal, have established systems that mandate heads of state, ministers and legislators to file income and asset declarations. These systems, which often exist in countries without an illicit enrichment law, aim to flag unjustified, extreme changes in one’s wealth, using them as evidence to file corruption charges.
However, the effectiveness of such norms remains in question. As seen in practice, asset declaration systems rely on government enforcement to ensure compliance by public officials, adequate resources to review the declarations in a timely manner, and institutions (courts and police) to prosecute infractions.
Authors
Craig Fagan, Transparency International, [email protected], with input from TI France, TI UK, TI IrelandReviewers
Marie Chêne, Transparency International; Robin Hodess, PhD, Transparency International; Gillian Dell, Transparency InternationalDate
24/04/2012
