The Use of Amnesties for Corruption Offences
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U4 Helpdesk Answer 2019:16 The use of amnesties for corruption offences Author(s): Marie Chene, [email protected] Reviewer(s): Roberto Martinez B. Kukutschka, [email protected] Date: 7 June 2019 The use of amnesties – whether for human rights abuses or corruption – is a politically controversial measure that is often perceived as fueling impunity and undermining the rule of law. Amnesties are predominantly used for human right abuses in post-conflict contexts to foster stability and ensure a non-violent political transition. Although there have been recent examples in countries such as Tunisia, Moldova and Romania, using amnesties for economic crimes and corruption is exceptional, politically sensitive and usually met with massive resistance. U4 Anti-Corruption Helpdesk A free service for staff from U4 partner agencies Query What experiences of using amnesties for corruption exist? What have been the outcomes and conditions of success of such initiatives? Contents Main points 1. Potential risks and benefits of using amnesties — The use of amnesties is a politically for corruption controversial measure, which is 2. Forms of amnesties primarily considered for human rights 3. Experiences of using amnesties for corruption abuses in the sensitive context of 4. Conditions of success for granting amnesties political transition or regime change. 5. References — The use of amnesties for economic Potential risks and benefits of using amnesties for corruption crimes, such as corruption is exceptional, politically sensitive and Amnesties refer to general absolutions of certain usually met with massive resistance in categories of crime granted to groups of people or most countries. individual offenders or to a decision whereby the state chooses not to prosecute crimes related to — There have been recent controversial certain periods or groups of persons (Roth-Arrazia examples of countries granting 2014). As such, amnesties are a legal mechanism amnesties for corruption in Tunisia, adopted by the legislature or the government that exempt certain categories of offences and/or Moldova, Romania, Nigeria among offenders from prosecution and provide some form others. of immunity (UNODC 2004). However, contrary to immunities, which can also protect a person from — A number of conditions and safeguards criminal or civil liability for crimes that may not need to be considered when using have occurred yet, amnesties exclusively relate to amnesties to balance accountability past offences (Katz 2017). with stability and peaceful political The literature primarily discusses the use of issues related to human rights abuses. Some amnesties within the framework of transitional authors argue that transitional justice should justice in connection with human right abuses at handle economic rights in the same way it the sensitive time of political transition or regime approaches human rights as corruption and human change. rights violations are mutually reinforcing forms of abuse (Carranza 2008). Focusing exclusively on While there are few studies looking at the use of human right violations and not violations of amnesties for economic crimes, some lessons can economic and social rights such as corruption be drawn from the experience of using them on would result in leaving accountability for economic U4 Anti-Corruption Helpdesk The use of amnesties for corruption offences 2 rights to ineffective domestic institutions or Helpdesk answer on the Use of Amnesties in nascent anti-corruption mechanisms (Carranza Tackling Corruption that was published in January 2008). 2006 (U4 2006). The use of amnesty – whether in the case of The rationale for using amnesties for economic crimes or human right abuses – is a corruption offences politically controversial measure that challenges the principles of criminal responsibility and Dealing with past offences should help achieve accountability. By cancelling the effect of a judicial accountability for past crimes and prevent future decision and its consequences and/or stopping new crimes. In the context of anti-corruption, judicial investigations, amnesties may also leniency measures such as amnesties for corrupt undermine the deterrent effect of sanctioning and practices may be considered – and are often weaken the rule of law (Ardigo 2017). In its article perceived by the public – as measures that are not 30, the United Nations Convention against consistent with the goal of deterrence, Corruption calls states parties to impose sanctions accountability and criminal responsibility (UNODC that “take into account the gravity of the offence”, 2004). There is also the fear that they may foster a including taking all necessary measures to ensure culture of impunity. Some scholars argue, however, law enforcement and deterrence in relation to that amnesties can play an important anti- corruption offences and making provision for the corruption role and contribute to the removal of corrupt officials from positions or transformation of the political culture of a offices where such offences are likely to be particular society (David 2010). In certain cases, repeated. In recent years, however, there has been the recourse to amnesty laws for economic crimes a growing interest in granting amnesties under may also be justified, either for pragmatic reasons certain conditions, although rarely for economic or by the specific political circumstances of a given crimes. A recent study of amnesties adopted since country. 1990 indicates that over 75% of them are related to conflict and that 49% of the peace agreements Promoting future anti-corruption reforms and overcoming political resistance to change adopted in the same period provided for some form of amnesty (Mallinder 2018). The first rationale is to resort to amnesties during times of political transition. In such a critical period, As a highly sensitive political decision, amnesties new governments may also primarily need to target are usually granted on a case by case basis resources to implementing new anti-corruption (UNODC 2004). Granting them in cases of reforms to prevent future acts of corruption rather corruption, however, has been exceptional and also than on enforcing past standards and regulations. In mainly envisaged for contexts of political addition, endemic corruption combined with high transitions when the new governments are willing public expectations placed on the new government to have a fresh start and make a clean break from may result in the costly process of prosecuting an the past (UNODC 2004). Such an approach entails overwhelming number of cases, paralysing a series of risks and challenges that should be taken overstretched judicial systems. This can also into account when assessing the relevance and potentially lead to the removal of large numbers of potential of using amnesties for corruption civil servants from the public sector and undermine offences. This answer elaborates on a previous U4 the provision of public services. U4 Anti-Corruption Helpdesk The use of amnesties for corruption offences 3 Amnesties can then be considered a realistic form authorities. As a result, some forms of amnesty, of transitional justice that prevents overburdening immunity or mitigation measures may be granted the court system and allows limited resources to be in certain situations for economic crimes, where focused on the most serious violations (Tahir offenders cooperate with the prosecuting Institute of Middle East Policy 2018). In such authorities. Article 37 of the UNCAC specifically contexts, there is also some recognition that civil allows state parties to consider mitigating servants may have been forced into corruption by punishment or granting immunity from low wages and economic hardships. When large prosecution to individuals who “provide substantial numbers of low-level officials are involved in cooperation in the investigation or prosecution of corruption, a general amnesty followed by re- an offence”. Granting some form of immunity or training may therefore be preferable to the leniency provides incentives for persons who prosecution costs and need to replace a large participate in crime to cooperate in the number of public officials (UNODC 2004). investigation/prosecution process and may lead to more information on the forms, nature and extent One of the most compelling arguments for granting of corrupt practices and identify weaknesses in amnesties is the need to achieve peace, stability, current laws and procedures. Immunity provisions reconciliation and democratic governance in are usually left to the discretion of the prosecutors countries emerging from conflicts (Han no date). and provide a certain degree of flexibility. Most studies of amnesties find that they have a positive effect on peace when used as part of Promoting accountability through the voluntary negotiated peace processes (Mallinder 2018). disclosure of offence In times of political transition, the need for Immunity from prosecution may be granted in influential officials to overcome the resistance to exchange for self-reporting or confessing the change may be directly affected by anti-corruption offence. Such measures, similar to “effective reforms and can also justify the use of amnesties to regret”, which applies when offenders report the gain support for reform. In such cases, amnesty crime shortly after its commission, seek to promote may be granted to senior officials as part of the accountability through truth telling. This approach negotiation process associated