Who guards the guardians in the anticorruption battle? Compelling prosecutors to take action

6 October 2014, by Mohamed Moussa, Global Anticorruption Blog.

This post was originally published on the Global Anticorruption Blog.

Article 30(3) of UNCAC calls upon state parties to ensure that any legal discretion pertinent to the prosecution of corruption is exercised to “to maximize the effectiveness of law enforcement.” Yet there is evidence that prosecutors do not always exercise their discretion in anticorruption cases in a manner that conforms to this principle. Prosecutorial decisions to shelve or terminate a case might instead be influenced by economic considerations — as when a large financial institution is involved, or when prosecution risks losing a valuable foreign investor — and by political considerations — as when the case may influence foreign diplomatic relations or when the case involves senior officials or other parties close to the governing regime.

There is no shortage of such troubling cases in both developed and developing countries. One of the best-known is the BAE Systems/Al-Yamamah case, which involved credible allegations that the British multinational had paid substantial bribes to senior Saudi Arabian officials in connection to a major arms deal. The UK investigation into the bribery allegations was brought to an end on grounds of public interest. The British government, and some of its defenders, emphasized the need to combat terrorism through maintaining relationship with Saudi Arabia with all underlying intelligence cooperation. Nevertheless, cases of this kind impair progress against entrenched corruption. Even if such cases are relatively infrequent, their existence risks depriving both the UNCAC treaty and domestic anticorruption laws of their deterrent effect.

If public prosecutors sometimes fail in their responsibility as anticorruption “guardians” by shelving or dropping investigations, what can be done? Long term solutions might require broader systemic reform, but there are some actions that could be taken, under the rubric of the UNCAC, to pressure or compel prosecutors to fulfill their responsibilities:

  • One way forward could be establishing, through an additional protocol, a department at the UN Office of Drugs and Crime (UNODC) authorized to receive complaints about impermissible considerations influencing prosecutorial decisions in individual cases (including the decision not to pursue credible corruption allegations). Such a body, which would be similar to the UN Human Rights Committee, would have authority to take up a case only after the exhaustion of local remedies. Under this proposal, if credible corruption allegations remain uninvestigated by domestic authorities (or if that investigation is prematurely terminated), the UNODC department could begin to follow the matter more closely, submitting queries of justification to the state involved. Even if the UNODC monitoring body lacked the authority to impose more direct or tangible sanctions, this public questioning might encourage the target state to defend its international image by working on investigating the claim or, at bare minimum, taking more aggressive action in the future.
  • A second response would be to broaden the scope of the remedies required by UNCAC Article 35 to include the right of a private party to appeal a the public prosecutor’s decision not to pursue investigation of credible corruption allegations. This is not a completely novel mechanism: In most civil law systems, executive inaction is deemed an implied decision that can be judicially reviewed. The proposal would expand the scope for such review, so that a public prosecutor’s decision to shelve an investigation, like the decision to dismiss a case, would be treated as a judicially reviewable decision.

The main challenge of the proposed mechanisms is that their adoption requires an additional protocol to UNCAC. Accordingly, they depend, in the same way as any transnational problem, on how genuine is the desire of state parties to make their rhetoric about fighting corruption a reality. Perhaps it is therefore overly optimistic to expect any movement on this from the states’ side. However, one shall bear in mind that all achievements in international law today seemed inconceivable two decades ago. In the 1980s, who could imagine that states would agree to establish an international criminal court, or for that matter that they would agree to criminalize bribes paid by their citizens or firms in foreign countries? Even if expansion of UNCAC seems unrealistic in the short term, it’s important to start thinking now about how to address the serious problem of prosecutors abusing their discretion by failing to pursue anticorruption cases for impermissible economic or political reasons.