Compliance Q&A with Nikos Passas

passas029Nikos Passas is a professor of criminal justice at Northeastern University. He is the author of “Legislative  Guide  for  the  Implementation  of  the  United  Nations  Convention against Corruption,” available for download here. Passas is an expert on the United  Nations  Convention against Corruption (UNCAC), about which he spoke at a conference earlier this month at the George Washington University of Law. His remarks focused on the opportunities and challenges posed by UNCAC, adopted in 2003 as the first global legally binding international anti-corruption instrument. This Q&A conducted by CIPE’s Frank Brown engages Passas further on UNCAC’s impact and potential.

Q: You describe UNCAC as an unprecedented achievement and yet we hear little about it in business-focused, anti-corruption circles in the developed world. Why is that and how might it be remedied?

This is a pity because the UNCAC provisions provide a blueprint for good governance in both the public and private sector. The discussions revolve a lot around instruments that are more directly applied to companies, and this is where the national laws and enforcement practices matter a great deal. The OECD Working Group on Bribery has been very active with the private sector and has been publishing relevant papers and guidelines that align with the FCPA, U.K. Bribery Act and similar laws.

Many UNCAC discussions are limited by the absence of authoritative interpretation of the text and the inter-governmental nature of a lot of UNCAC activities. The Legislative Guide and other UN publications are meant to be consensus documents and thus can only go so far. A way to engage business-focused, anti-corruption circles in the developed world is to start producing high-quality issue papers that discuss and review critically the application of different UNCAC provisions, seek out and develop good practices, engage the creative imagination of researchers, scholars, NGOs and the media. This can be done by organizing symposia and workshops advancing our thinking about practical applications and implementation ideas for diverse contexts, and by publishing guidelines and principles that may inspire collective actions with or without government participation. Guidelines and suggestions can also be forwarded and presented to the Conference of States Parties to the UNCAC and its working groups for their consideration, so that broader consensus and evidence-based knowledge can be promoted by governments too.

Q: You talk about UNCAC as an opportunity for cooperation between the Global South and the Global North. What are those opportunities and how are they being realized?

Many international instruments covered matters of lower priority or concern in the developing world, such as anti-money laundering and financial controls. Corruption convictions and asset recovery, however, cannot be achieved without the very legal and institutional infrastructure that had been previously resisted or inadequately implemented. The broader acceptance and consensus on what it takes to fight serious crime provides a basis we ought to leverage toward a more strategic and effective implementation of the UNCAC and related standards.

Q: Ukraine is a country that is attempting to implement many of the best practices outlined in the UNCAC, with support and pressure from the International Monetary Fund. As we watch how Ukraine implements its ambitious anti-corruption reform program, what are the benchmarks for success in the coming years and decades?

Similarly to other countries, key will be to check how well different stakeholders (government, political parties/opposition, civil service, private sector, civil society) are brought in to devise a long-term anti-corruption strategy. Success will depend on the active contribution and buy-in of all social actors and the continuity of the effort even when the government or balance of power changes in the interim. Also important is the execution of short-term projects and programs that are instrumental to the creation of a positive momentum, credibility and the attainment of long-term aims. The management of expectations is vital so that the authorities do not over-promise and under-deliver. The strategy, building on risk and capacity assessments, will dictate priorities and the sequencing of reforms in a pragmatic way. Performance indicators are very useful as a tool to do self-assessments, monitor progress of implementation and change. When the results of the regular analysis of performance indicators are published, this would add to the openness of the government, the inclusion of all stakeholders in the assessment and review of the long-term plan, the capacity to adjust as needed, recognition of anti-corruption leaders and accountability of all actors.

Q: You noted that UNCAC was approved extraordinarily quickly because UNCAC was “led by the developing countries because the global south wanted its money back.” Could you elaborate on this phenomenon and whether it has happened?

The return of assets stolen from countries that suffered under kleptocratic elites and corrupt public officials can make a huge difference to the economic recovery, development, governance and quality of life in these countries. In smaller economies, the potentially recoverable assets can be a game changer. Developing countries rushed thus to ratify the UNCAC and led to a very quick entry into force, as it declared asset recovery a fundamental principle. When the Stolen Asset Recovery initiative (StAR) was launched, it was stated that: “Even a portion of recovered assets could provide much-needed funding for social programs or badly needed infrastructure. Every $100 million recovered could fund full immunizations for 4 million children or provide water connections for some 250,000 households” (UNODC/World Bank 2006, Stolen Asset Recovery (StAR) Initiative: Challenges, Opportunities, and Action Plan).

We do not need to be perfect to make a big difference. However, recovered assets are still below the initial hopes and return to victim countries even lower. There is plenty of room for improvement but StAR and other initiatives continue to deal with the challenges we face, such as the expensive, labor intensive and lengthy process of investigating illicit flows, identifying and tracing illegal assets, strengthening international cooperation, proving claim and making all victims whole. Civil society, donor organizations, research and think-tank institutions all have a role to play to bolster the political will of transit and destination jurisdiction to support and facilitate these efforts. It is critical that we succeed in this, as disappointing the expectation that the asset recovery part will help developing countries may undermine the North-South consensus not only on the UNCAC but other international instruments too.

Q: The notion of ‘illicit enrichment,’ where a prosecutor can take action against someone whose assets are vastly larger than their ostensible income, seems like a powerful – and potentially dangerous – tool for combatting corruption without having to prove actual corrupt acts. Can you discuss instances of prosecutors using illicit enrichment being used in good and bad ways?

Illicit enrichment is 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 under articles of the UNCAC as well as the OAS and African Union conventions. Scores of countries criminalize it ranging from Argentina and Bolivia to Botswana, Egypt, China, Hong Kong, Pakistan and many others. From the accumulating practice, it is clear that it can be enforced in ways that human rights and the rights of the defendant can indeed be protected. Rulings from the European Court of Human Rights suggest that criminal offenses with a presumption by law are not a problem as long as the principles of rationality and proportionality are fully observed. In many countries, there are additional elements included, so that the state must demonstrate some misconduct and link between the excessive wealth and one’s abuse of public office (e.g. Angola, Cyprus, Jordan).

Like all anti-corruption and other criminal law measures, illicit enrichment offenses can be abused in a way that undermines democracy and the credibility of anti-corruption efforts – e.g., if used inconsistently and target political opponents or enemies. This is why it is critical that we ensure and support the integrity, professionalism and independence of prosecutors and the judiciary. How appropriately illicit enrichment and unexplained wealth order provisions are applied generally depends on the rule of law climate and quality of the criminal justice system of the country concerned.