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Where can I start a court action?

In this section we outline the main issues to consider as you decide on the best way to seek justice for your losses arising from corruption. There are a number of options: e.g.

  • to ensure that a criminal prosecution is brought against the wrongdoer
  • to bring an administrative or civil claim in the courts of your country, or
  • to consider bringing a claim in the courts of another country.

There are also a number of alternatives to court action, which we discuss in the section on alternative remedies.

  • Some of these are steps that you might want to consider before embarking on court proceedings: for example, the first step is often to make a complaint to the public authority or employer responsible for the wrongdoer.
  • Another important alternative to commencing a court action is to file a complaint with your country’s anti-corruption commission, or other type of public “watchdog”, which may then investigate your concerns.

EXAMPLE:  in September 2000 Nigeria created the Independent Corrupt Practices And Other Related Offences Commission (ICPC), with a mandate to investigate and prosecute corruption, to review anti-fraud procedures of public bodies, and to educate the public on the fight against corruption.  Anyone is entitled to submit a petition to the ICPC in respect of suspected breaches of the Nigerian anti-corruption legislation.  Since the founding of the ICPC, many hundreds of petitions have been lodged, resulting in the initiation of criminal and civil cases by the Commission.

If these alternatives do not work, or are not suitable, it may be necessary for you to decide what form of court process to take. Where corrupt acts have taken place, often the best solution will be to seek to instigate a criminal prosecution of the wrongdoers, by law enforcement and prosecution authorities in your country. As an alternative, or as an additional step, you may wish to consider commencing administrative or civil proceedings.

In other words, there may well be more than one suitable court, tribunal or other body to which you can bring your claim. This is an important decision to make.  As we explain below, the right choice of court will depend upon a number of factors, e.g.

  • what remedies you are seeking
  • what type of procedure will help you achieve your objectives, and
  • whether it may be helpful to consider courts outside your country.

We discuss these factors in some detail in the Going to Court Q&A.  The discussion there is in general terms (and not specifically relating to corruption), but you will nonetheless find it useful. In this section we will assume that you have already read the general discussion in the Going to Court Q&A.  The focus in this section will be on the specific issues that arise in the context of corruption claims.

1

Decide what you want to achieve

If you have suffered loss as a result of corruption, you will probably want to achieve a number of objectives:

  • You may have been forced to pay money as a bribe, and you will want to recover this.
  • It may be that you have been deprived of other property, and you would like to have it returned to you.
  • You may want the wrongdoer to be punished, and to ensure that he or she does not engage in corrupt activities again.
  • You may want to receive assurances from the public authority or company that employed the wrongdoer.
  • Finally, you may want to change the laws in your country that govern this type of situation, or to bring about the introduction of other measures that would make corruption less likely, and easier to remedy, in the future.

In deciding whether to seek justice via a court application, you may wish to consider which of your objectives is the most important. For example:

  • if publicity is the most important to you, you may wish to consider initiating a media campaign (see the section on alternative remedies).
  • on the other hand, if the recovery of the money paid to the wrongdoer is most important, then you may wish to bring a civil action.
  • if punishment of the wrongdoer is most important, then you will want to look at the likelihood of initiating a criminal prosecution.
  • if you have very little money, and you cannot afford to get detailed legal advice, then you may wish to explore options that are lower in cost (for example, a complaint to an administrative authority, or pressing the public prosecutor in your country to begin a criminal prosecution.

There’s a useful discussion of these factors in the section on Going to Court: Q&A.

2

Making a formal complaint

Your first step is likely to be a formal complaint, either to the public authority or employer of the wrongdoer, or to another administrative body which may have responsibility in your country for monitoring and offering redress in case of corrupt acts by public officials.

The reasons why this is likely to be your first step are as follows.

  • If the public authority or an employer of the wrongdoer is not aware of the corrupt acts, you may be able to secure prompt justice with minimal cost by making them aware of the problem and by pressing them to investigate and to take appropriate remedial action.
  • If you do have to commence court litigation, you may well wish to bring the action against both the individual wrongdoer and the public authority or company for which he or she works. You are likely to be able to do this because in most countries, an employer is regarded as being responsible for most of the actions of its employees in the course of their work, and this may include corrupt demands or activities.
  • It may well be beneficial for you to bring an action against not only the individual but also the public authority or the company, because you are more likely to persuade a company or authority to settle the action and give you compensation.
  • The court process may well be a more effective deterrent against future corrupt conduct if the employer is made aware of the wrongdoing and has a chance to take remedial action against the employee.
  • Finally, many countries require that before you take a court action, you need to give the people or companies against who you propose to commence proceedings advance notice of the concerns about their conduct and the basis on which the claims are being brought, so that they have a chance to offer remedial action and thereby forestall the commencement of court litigation. Since this would mean that you would obtain a remedy without needing to complete the litigation process, this may well also be in your interests.
3

A prosecution in your country's criminal courts

In many countries, the most effective way to secure justice when corruption occurs is to ensure that the law enforcement authorities pursue a criminal prosecution against the wrongdoers.

This has a number of advantages for you, if you can make it happen.

  • It should not cost you anything.
  • The gathering of evidence, and the legal analysis, would be done by the law enforcement authorities, and not by you, saving you a lot of time and effort.
  • The law enforcement authorities or prosecutor would handle the dialogue with the wrongdoer. This may mean that you may be less likely to be criticised or even victimised by those responsible for the corrupt acts.

However, it may be hard for you to remain anonymous, particularly if the prosecution will rely upon evidence from you in relation to what the wrongdoer did. Note that there may be legislation protecting whistleblowers in your country, or court procedures enabling you to give evidence without appearing in court. If such protections exist in your country, they may help to protect you from pressure or reprisals.

PRACTICAL TIP: the prosecutor will need detailed evidence from you about the wrongful acts. It will be necessary for you to provide a very careful account of exactly what happened, what was said, when the various events took place, and so forth. Since the wrongdoer will probably try to contradict your version of events, it will also be important for you to produce any documents which can help to prove that your recollection is accurate.

Therefore it is important for you to write down a detailed account of exactly what happened as soon as possible, and to include as much detail as you can. Make sure that any diaries, notes, photographs, recordings, bank statements or other supporting evidence are kept safe, as the prosecutor will need to see these in due course. They may well be very important for your case.

4

A compensation claim in your country's civil courts

As explained above, often the most effective form of justice in respect of corruption is to ensure that the state authorities in your country pursue a criminal prosecution. However, ordinarily this will not result in compensation for financial losses that you may have sustained. This is because the focus of the criminal prosecution will be to determine the guilt of the wrongdoer and, if guilt is established, to identify the most appropriate punishment (often imprisonment or a fine).

However, there are two ways for you to claim compensation.  Note that it is easier to do so following a conviction of the wrongdoer, as we explain below.

First, in many countries, criminal justice legislation provides for victims of criminal conduct to receive compensation, either from the wrongdoer, from his or her employer or other entity responsible for the wrongdoer’s conduct, or from a state body which is responsible for compensating victims of crime.

Second, if you can show that corruption has taken place, it may also be possible for you to pursue a claim against the wrongdoer, and perhaps also against those responsible for his or her conduct, in a civil court.  If the wrongdoer has been convicted, it should be straightforward for you to show that corruption took place; the conviction should be evidence of this. Ordinarily the remedies available in respect of a successful civil court case would be limited to financial compensation in respect of the losses that you have suffered, and perhaps the return of the property that you may have lost.

If the state law enforcement authorities are pursuing a criminal prosecution against the wrongdoer(s), it may well be necessary for you to await the outcome of the prosecution before commencing a civil claim. This is likely to delay your receipt of compensation, but it may make your compensation claim easier, because often the criminal conviction of the wrongdoer will serve as proof of his or her guilt.

PRACTICAL TIP: Bear in mind that civil litigation has a number of drawbacks: it is time-consuming, expensive and requires a lot of effort (e.g. to assemble the necessary evidence and progress through the various stages of the court litigation process). We discuss these in more detail in the section on Disadvantages of Litigation.

5

An action in your country's administrative courts

The corruption that you have suffered may not be simply an involuntary payment or other loss of property. It may be that a public authority made a decision that has caused you loss, for example the loss of a business opportunity, or the corrupt award of a permit for mining operations on your land.

In these circumstances, you may wish to consider bringing an action before the administrative courts in your country, to ask for an order that seeks to remedy the consequences of the corrupt decision.

Bear in mind that in many legal systems the law provides that proceedings in an administrative court that seek to challenge decision-making by public officials are subject to more stringent tests on standing (see the coverage in the next section, on court procedure). Sometimes it is also necessary to apply for permission to bring a claim in an administrative court; in other words, there is a preliminary threshold which you must overcome before you are permitted to launch your claim.

Furthermore, financial compensation is rarely available via a challenge in an administrative court.

Finally, administrative courts are accustomed to granting orders which seek to overturn the decision of a public official, if persuaded of the satisfaction of the requisite thresholds for challenging a public decision. However, it is much less likely that you would succeed in an application to compel a public authority to take some positive step. Therefore it is sensible to frame the remedy that you are seeking as we overturning of a public authority decision, rather than an order that the public authority must undertake some action.

6

Courts and tribunals outside your country

Suing a company in its “home” courts

If the corrupt activity that has caused you loss involves a foreign company or entity, or there is some other international involvement in the events which took place, you may wish to consider carefully whether there is a means of bringing your claims before a court in another country.

There are a number of potential benefits of doing this:

  • the range of remedies may be wider
  • there may be less risk of judges being sympathetic to the wrongdoers
  • you may be able to claim greater financial compensation
  • the publicity given to the case may sometimes be greater; and
  • if you are dealing with an overseas company or other entity, you may find that there are a number of ways to take advantage of codes of conduct, ethical requirements and other restrictions on the conduct of that company or entity.

EXAMPLE: in 2009 a US engineering company named KBR pleaded guilty in a US court to charges arising out of the payment of $180m in bribes to Nigerian officials over the course of ten years, in order to win contracts to build and expand a liquefied natural gas terminal.  KBR and its parent company agreed to pay sanctions amounting to $579m.  The bribes (some of which were handed over in a briefcase filled with $100 bills) were paid to officials in Nigeria’s government and in the state-owned Nigerian National Petroleum Corp.

Courts that hear claims based on human rights violations

Even if the corrupt activity which has caused you loss does not involve a foreign company or entity, there may still be away to ensure that your claims are heard by a court outside your country.

In some parts of the world there are regional courts which have jurisdiction over human rights violations. For example, the ECOWAS Court of Justice, set up in 1991 under the auspices of the Economic Community of West African States, hears disputes in reslation to some corruption issues. The African Commission on Human and Peoples Rights (ACHPR) is a quasi-judicial organ of the African union with some responsibility for protecting human rights. There is a similar court in the Americas, the Inter-American Court of Human Rights, based in Costa Rica. Each of these courts is potentially useful, but they have one significant disadvantage from your perspective: they do not have jurisdiction to determine cases brought by individuals.

The only international court with jurisdiction to hear cases brought by individuals is the European Court of Human Rights (ECHR). This court hears challenges based on breaches of the European convention on human rights. Its utility for your purposes is limited by the court’s European remit, the somewhat more lenient nature of the rights protected (by contrast, for example, with the United Nations Charter on Human Rights) and the multi-year backlog of cases before the ECHR.

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