Christian Aid Statement on Out-of-Court Settlements to the UNCAC Implementation Review Group Briefing for NGOs

Vienna, 30 May 2013, by Eric Gutierrez.

Mr. Chair, Distinguished Delegates,

My name is Eric Gutierrez. I am the Senior Adviser on Accountable Governance at Christian Aid and based in the UK. I would like to thank you for this opportunity to address the Implementation Review Group, this time on the issue of out-of-court settlements.

Our position is that bribery, money-laundering, and other corruption-related offences are serious crimes. Therefore, as a matter of principle, companies and individuals who commit them should be prosecuted and punished.

Recently however, more out-of-court settlements are being agreed between prosecutors and companies. The list of examples is too long to enumerate here. We are worried that such settlements are becoming a soft option for companies and a cheap option for prosecutors. We are worried that settlements are becoming the norm, rather than the exception.

But most importantly, we are worried that companies are getting more adept at “settlement shopping” – pleading guilty to lesser charges in one jurisdiction so as to avoid prosecution on more serious charges in another.

Mr. Chair, we reiterate our long-standing concern that sufficient human and financial resources need to be committed by governments to the investigation and prosecution of corruption-related offences.

However, if ever settlements need to be resorted to by prosecutors, we reiterate the following principles to be observed:

  • Transparency – the reasons for agreeing a settlement, rather than proceeding to prosecution, must be fully transparent;
  • Acceptance of guilt – before a settlement is agreed, the company involved needs to make an acceptance of guilt;
  • Judicial scrutiny – there needs to be judicial oversight over plea discussions to ensure that a settlement is in the best interests of justice;
  • Penalties – settlements can provide companies with a swifter and certain outcome; in return, it should be expected that penalties will be significant. Penalties include fines, restitution to victims, disgorgement and a properly-monitored commitment to reform.
  • Prosecution as the default option – it should be clearly understood and embedded into any settlement agreement that prosecution is the default option;
  • No immunity – individuals should not be granted immunity from prosecution even if a company reaches a settlement over a charge. Companies should never be granted blanket immunity for bribery, money-laundering and other corruption-related offences.

Mr. Chair, we would like to request the IRG to mandate the UNODC to work with States Parties to develop common guidelines in the settlement of corruption cases.