JICL

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VOLUME
4:2
DECEMBER 2017
132-389
  • ENFORCING CRIMINAL LAW THROUGH CIVIL PROCESSES: HOW DOES HUMAN RIGHTS LAW TREAT “CIVIL FOR CRIMINAL PROCESSES”?

    Simon NM Young
Abstract

The distinction between civil and criminal procedures has blurred with the advent and growth of hybrid procedures. Governments in common law jurisdictions have created civil processes and penalties to further criminal law aims. This article describes them as “civil for criminal processes”. Some controversial examples include civil forfeiture, anti-social behaviour orders and measures targeting money laundering and insider dealing. They serve as an alternative to traditional criminal proceedings. Foregoing the sanction of imprisonment and stigmatising effect of a criminal conviction, these civil processes provide governments with evidential and procedural advantages and greater opportunities for case settlement. But human rights law has treated civil for criminal processes inconsistently, deeming some as criminal proceedings and therefore entitled to high levels of procedural protection and others not. This article explores different approaches developed by the European Court of Human Rights and the Supreme Court of Canada. It argues in favour of the Canadian approach, defining the “criminal” sphere more narrowly, and calls for the concomitant, principled development of adequate procedural protections in civil for criminal processes.

Keywords
criminal charge; civil proceedings; human rights; hybrid proceedings; civil penalties; European Convention on Human Rights; Canadian Charter of Rights and Freedoms
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Introduction

The national and international regimes that attempt to deter and control overseas commercial bribery have failed to prevent foreign officials from demanding and receiving massive bribes from foreign investors and other business persons. The legislatures of the major capital exporting countries must address this failure by amending their foreign anti-bribery laws. Likewise, the governments of these countries need to negotiate much needed changes that deal with demand-side bribery in their international investment agreements (IIAs).

The alarming spike in foreign commercial bribery necessitates such changes. The serious flaws in national laws that attempt to prevent foreign commercial bribery only by punishing investors and others doing business across borders hinder efforts to combat bribery as a worldwide phenomenon.

Host country foreign anti-bribery laws, by ignoring the demand side of corruption which domestic bribery laws invariably criminalise, result in enforcement actions that are unbalanced and are also neither rational nor effective in combating foreign commercial bribery. First, these laws present their foreign investors with a Hobson’s choice. In effect, enforcers of such laws tell their nationals: “either pay the sum demanded by the foreign official and invest in the host country thereby exposing yourself to an expensive and harassing local investigation with possibly heavy criminal penalties at home or resist paying the bribe and forego a business opportunity to increase your shareholder value and contribute to the development of the host country”.

Second, the data contained in the Corruption Perceptions Indices (CPS),1 released by Transparency International, the best-know anti-corruption civil society group, show that these foreign bribery laws have little impact on countries that are described as “highly corrupt”. Corruption appears to be rife and corrupt payments even by companies, from countries which are regarded as the least corrupt and punish overseas bribery, continue to be made. In other words, the main objective of anti-foreign corrupt practices legislation and international treaties that condemn bribery in the strongest terms, which is to eradicate or at least drastically reduce foreign commercial bribery, remains unrealised. Third, national foreign anti-bribery laws contain no meaningful deterrent against host country kleptocrats. These kleptocrats continue to flourish, living a life free of accountability or retribution, and continue to inflict political violence on host country populations. Fourth, where honest investors refuse to pay bribes, their less scrupulous competitors replace them, and the results are often overpriced products/services, sub-standard performance and an oligopolistic economy.2 Finally, in a typical highly corrupt but resource-rich host country, the population, despite being the real owners of the abundant natural riches in their homeland, live in squalid poverty; democracy and human rights are undermined if not destroyed; and their masters plunder the national heritage from the true owners.