If the corrupt conduct you want to challenge is recognized as a criminal offence in your country, the legal action you could take is to initiate a criminal case. Criminal cases are investigations and prosecutions, usually undertaken by police or public prosecutors, to find out if a crime has been committed.
In Reporting to the Police or a Prosecutor, we discussed the process of reporting corrupt activity to law enforcement authorities. This complementary section goes into more information on the criminal justice process and criminal laws that relate to corruption. This section is designed to:
1. Help you better understand and engage with criminal prosecutions that are taken on your behalf by law enforcement bodies; or
2. Give you ideas and tips on how to build a criminal case to combat corruption if you want to start a private prosecution.
Any individual or organisation can report suspicion of corruption to law enforcement authorities, such as the police or the public prosecutors, to investigate and gather evidence about corruption offences. If you want to know how to report corruption to a police or a prosecutor see Reporting to the Police or a Prosecutor.
In some countries, there is the possibility to start a private prosecution. A private prosecution is a criminal prosecution started by any individual or company instead of public authority.
Private prosecutions can be helpful if you think that you have enough evidence that a crime has been committed but law enforcement are unwilling or unable to take the case forward. To conduct a private prosecution you can look for private law firms or an NGO to help you with this process.
For more information on private prosecutions, see Who Can Take Legal Action? In the A4J Going to Court: Q&A.
Although based on English law, the paper provides a useful introduction into how private prosecutions could be used to combat corruption. You will need to check how different the legal position is in your country.
Even though criminal justice systems are different, there are similarities. For example:
In most countries, what constitutes a criminal offence can be found in law statutes, sometimes called a criminal or penal code. These are rules made by legislative bodies which describe what activities are crimes in your country.
These laws describe three main things:
In most countries, there is no criminal offense called corruption. Instead, there are different types of corruption offences.
The following crimes are recognised as corruption offences in the UN Convention Against Corruption. These often are reflected in crimes in national law. It is important for you to know what these crimes are and what are their main characteristics.
Bribery means offering, promising, giving, accepting or soliciting of an undue advantage to an official so that the official acts or refrains from acting in her official duties. Inducements can take the form of gifts, loans, fees, rewards or other advantages (taxes, services, donations, favours and others).
Article 15 of the UN Convention Against Corruption provides a common legal definition of bribery of public officials. This is reflected in the national legal systems of many countries. Article 21 provides a definition of bribery in the private sector.
Section 10 of the Code of Conduct Bureau and Tribunal Act of Nigeria: This prohibits all kinds of bribery and gratification of public servants or private entities. Section 23 of the Corrupt Practices and other Related Offenses Act also imposes a duty to report bribery and contains sanctions for those who unreasonably fail to report bribery and corruption.
Embezzlement is the misappropriation of any property, public or private funds or securities, by a public official or a person who directs or works in a private sector entity or the misappropriation of any other thing of value entrusted to the public official or person by virtue of his or her position.
Article 17 of the UN Convention Against Corruption provides a common legal definition of embezzlement of public officials. This is reflected in the national legal systems of many countries. Article 22 provides a definition of embezzlement in the private sector.
US Code: Embezzlement & Theft (ss641-663): The US Code is a compilation of federal statutes that define different crimes and criminal procedures. In the Code, embezzlement is considered a fraudulent appropriation of property by a person to whom such property has been entrusted.
Trading in influence is the act of promising, offering, giving, directly or indirectly, an undue advantage to a public official in order that the person abuses their position of influence or authority to provide an advantage to the instigator or another person. It also covers the act of the public official in soliciting or accepting undue advantage.
Article 18 of the UN Convention Against Corruption provides a common legal definition of trading in influence. This is reflected in the national legal systems of many countries.
Criminal Code of Brazil (article 332): This imposes penalties for those who order or obtain an advantage for influencing an act to be carried out by a public servant in the exercise of his or her duties.
Abuse of functions means the unlawful acts of a public official in the discharge of his or her functions for the purpose of obtaining an undue advantage for himself or herself or for another person or entity.
Article 19 of the UN Convention Against Corruption provides a common legal definition of abuse of functions. This is reflected in the national legal systems of many countries.
Colombian Penal Code (Código Penal Colombiano) (articles 416 and 417): This states that the crime of abuse of functions will be committed when a public servant or any authority abuses his or her position or law knowledge to obtain a private gain. It also creates a crime of omission, where a public servant has knowledge of an alleged unlawful act and he or she does not report it to the official authority.
Illicit enrichment refers to situations where a public official has significantly increased their assets or wealth when he or she cannot reasonably explain how this happened in relation to his or her lawful income.
Article 20 of the UN Convention Against Corruption provides a common legal definition of illicit enrichment. This is reflected in the national legal systems of many countries.
Section 13(1)(e) of the Prevention of Corruption Act, 1988 (India): This states that a crime will be committed where a public servant is or has been in possession of a property or money that he or she cannot satisfactorily account for and that is disproportionate to the income of the public servant.
This refers to the conversion, concealment or transfer of property, with knowledge that the property is the proceeds of crime, for the purpose of concealing or disguising the illicit origin of the property, or helping the person who committed the crime avoid punishment.
Article 23 of the UN Convention Against Corruption provides a common legal definition of laundering of proceeds of crime. This is reflected in the national legal systems of many countries.
Obstruction of justice refers to the use of physical force, threats or intimidation, or the offering of an undue advantage, to interfere with someone’s testimony or the exercise of official duties by a justice or law enforcement official to obstruct, subvert, mislead or impede justice procedures.
Article 25 of the UN Convention Against Corruption provides a common legal definition of obstruction of justice. This is reflected in the national legal systems of many countries.
Canadian Criminal Code (s139): This provides criminal punishment where one attempts or uses corrupt means to persuade someone from giving evidence or influence a juror in court proceedings.
Check your country’s Criminal or Penal Code to see if any of the above or similar crimes are included. Criminal laws are generally applied on a national (or federal) level and on a local level.
In addition to the corruption offences in the UN Convention, there are a number of other crimes that are often committed alongside or are related to corruption. A couple of examples are listed below:
The act of dishonesty of taking something that belongs to someone else and keeping it.
Example: Penal Code of Malaysia, Act 574
This act imposes penalties to whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking.
Fraud involves intentionally deceiving someone in order to gain an unfair or illegal advantage (financial, political or otherwise).
Example: Criminal Code of Kosovo (Article 323)
The Criminal Code defines fraud as a false representation of facts with the intent to obtain an unlawful benefit from public funds or institutions.
Practical Tip: Alleging corruption-related offences in corruption cases.
Not every case of theft or fraud will involve corruption. However, where corruption is suspected, offences of theft or fraud will often be committed as part of the suspected corruption offences. If a criminal case is being brought regarding corrupt activity, it can be wise to also allege theft or fraud if there is evidence the crimes have been committed.
It can be more difficult to prove corruption offences as you often have to prove some form of abuse of power or influence. If you fail to prove this in court, it may still be possible to secure a conviction for another crime related to corruption where you don’t have to prove an abuse of power or influence.
There is a wide range of people and entities against whom you may be able to pursue claims arising from corrupt activities.
The individual wrongdoer is the person that committed the corrupt act, whether in the public or the private sector. This could include any individual in a company or public body that has:
It will often be the case that employees of a business or individual public officials are directly responsible for committing a crime (e.g. the person that paid or received a bribe).
In this case, a public official who worked in the Customs and Excise Department was investigated by an anti-corruption agency and convicted for having a disproportionate amount of assets when compared to his disclosed salary (see illicit enrichment above). He was sentenced to 2 years in prison and was suspended from his position.
The accused appealed the decision and applied to the court to have the suspension of his employment lifted. The court refused the request, highlighting the seriousness of the impact of corruption on human rights and the constitution.
People high up in a business or public body could be responsible for committing a corruption offence. This could involve directors, executives, ministers or managers:
When directors, managers, senior public officials or executives commit crimes, it’s often by ordering an employee to commit a crime, knowingly profiting from, assisting or planning a crime. Also, in some countries, the failure to set up corruption prevention measures in an organisation amounts to a criminal offence.
The guide provides an in-depth review of anti-corruption legislation in OECD countries, outlining several countries where it’s a criminal offence not to set up corruption prevention measures in an organisation.
Wrongdoers can be one individual or more. There may be a number of people involved in a corrupt act, and you may be able to take action against all of them.
In some countries, it is possible to hold a company or organisation directly accountable under criminal law. This is called “corporate criminal liability”. This is when an organisation is criminally responsible for the actions of its senior employees actions related to their job.
Article 26 of the UN Convention Against Corruption creates an obligation for the 187 countries that are party to the convention to ensure there is some possibility for corporate liability in their national laws. However, this does not have to be criminal liability.
The Clifford Chance Guide outlines which OECD countries provide for corporate criminal liability.
To establish corporate criminal liability, the actions have to be committed by senior employers who are the “directing mind” or “alter ego” of the corporation. These are employers who make central decisions on behalf of the corporation, such as directors who set the policy and strategy of the corporation.
Example: The Siemens Corruption Scandal
Between 1996 and 2007 employees at Siemens, Europe’s largest engineering company, arranged for the company to pay bribes to win contracts from Iraq’s government in the United Nations oil-for-food program.
Corrupt payments were also made to ensure that the company won bids for commuter rail projects in Venezuela, mobile-phone networks in Bangladesh, power plants in Israel and traffic-control systems in Russia, among many other instances of corruption in various countries.
In 2008 Siemens pleaded guilty to the violation of international anti-corruption laws, and agreed to pay civil and criminal penalties amounting to $1.6bn.
However, in some countries, corporate criminal liability can be established for the failure of a corporation to take reasonable steps to prevent corruption taking place within the corporation. This will often depend on whether the corporation has adequate procedures in place to prevent corruption.
Example: Section 7 of the Bribery Act (UK)
In the UK, a commercial organisation will be guilty of bribery if a person associated with the organisation bribes another person. However, the commercial organisation will have a defence if they had adequate procedures in place to prevent bribery.
This will often be very difficult in practice. If you want to establish corporate criminal liability, you will need legal support.
In criminal cases, the person alleging a crime has been committed has the burden of proof. This means they have to have evidence to prove that the person they are accusing committed the crime.
Generally, it will have to be proven that:
Also, these will need to be proven to a criminal standard of proof. This is the level of certainty with which you need to prove the offence happened.
For general tips on how to gather evidence, see How Can I Prove Corruption?
If there is a successful prosecution, the court will impose a criminal sanction (or multiple) on the person or company responsible for the corrupt activity. Criminal sanctions can include:
It may also be possible to get compensation if you are the victim:
Focus Point: Compensation in Criminal Cases
In some countries, victims of criminal conduct can apply to get compensation for harm caused by the criminal conduct.
A court may order the wrongdoer or the related company/organisation to pay you directly. Or compensation could be given by a state body which is responsible for compensating victims of crime.