Although corruption has always been present in our tiny country, it seems that nowadays we are struggling with this scourge more than ever. It is well nigh impossible to work out a rough estimate of actual bribes paid, not including embezzlement of public funds or theft of public assets.

Fighting corruption mainly involves the use of criminal law. In contrast, the use of civil law remedies tends to be overlooked. This, however, does not mean that their importance should be underestimated. In fact, civil law remedies can prove quite successful in the fight against corruption since the injured party can recover compensation or avoid obligations under a contract, while the defendant may be obliged to pay damages and disgorge his or her profits.

Civil rights NGO Repubblika has called for the creation of a system through which people and businesses who have incurred direct damage caused by corruption, most of which is a serious breach of human rights, could seek compensation. This is not a far-fetched idea. Indeed, it is something that should have been in place in our country ages ago.

This latest call adds a new dimension to the fight against corruption and spurs the debate over a topic that has not been systematically studied. It intends to justify the choice of civil law remedies as a credible and effective option for dealing with corruption, especially when criminal law avenues are not available and well adapted to the circumstances of a given case.

As a general rule, civil law remedies for persons who have suffered loss as a result of corrupt acts should include compensation for damages, restitution and contractual nullity or voidability. A wide array of parties who have a specific legal interest in a case of corruption could be entitled to bring an action before the civil courts.

The mantra "corruption is not a victimless crime" is frequently used by anti-corruption NGOs, government officials and even judges. Yet victims of corruption are rarely represented in court proceedings, rarely consulted about corruption investigations, and rarely compensated. In practice, enforcement action against corruption is effectively a victim-free zone.

There is no doubt that there is a real difficulty in defining and identifying the real victims of corruption. Victims must prove direct harm in order to have legal standing, but this is often difficult, if not impossible, to prove. Corruption often damages multiple communities or causes more generalised harm, such as loss of integrity to social institutions or the re-orientation of public budgets towards projects that benefit corrupt officials rather than the public at large. This generalised harm is hard to prove and even harder to quantify.

What makes the situation even worse is that most of the people who are faced with inadequate services and corrupt officials are also denied access to justice and other public services. Corruption within criminal justice institutions mandated to enforce and safeguard the rule of law is particularly alarming and destructive to society. It is a troubling fact that it is precisely those institutions that are perceived as corrupt.

Still, corruption is anything but a victimless crime. Citizens are injured or killed when corruptly constructed buildings collapse on them. Others are denied the right to education, life-saving medical treatment, disability social benefits and the fair resolution of their disputes thanks to bribery, embezzlement and conflicts of interest.

Applicants for driver's licences, building permits and other routine documents have been victims of corrupt acts. At a higher level, bribes are paid to win public contracts, to purchase political influence, to side-step safety inspections, to bypass bureaucratic red tape and to ensure that criminal activities are protected from interference by police and other criminal justice officials.

The drafters of the United Nations Convention Against Corruption, adopted in 2003, were not blind to the tremendous damage corruption does to identifiable persons or groups of persons. That is why they included a specific provision making it absolutely clear that all parties must grant victims of corruption an opportunity to seek compensation for any injuries sustained. In no uncertain terms, Article 35 requires state parties to open their courts to any individual or entity injured "as a result of an act of corruption."

Malta signed the Convention on May 12, 2005, and ratified it on April 11, 2008. However, it has yet to take Article 35 seriously. To date, not a single person injured by corruption has been compensated for any loss or other related damages.

Corruption causes enormous harm. It damages trust in public institutions and governance, causes significant losses to the public purse, and distorts public spending priorities. Yet the detailed harm caused by specific corrupt acts is rarely elaborated in court trials or put to juries in corruption cases. Those who are harmed most by the corruption rarely, if ever, receive any compensation or direct benefit from successful enforcement actions.

Finding ways to ensure victims of corruption are represented in enforcement proceedings and compensated is crucial for several reasons. It puts corruption on a par with the most serious crimes, where victims have significant rights in relation to representation and access to information. It ensures that the real damage that corruption does is recognised while bringing home the human impact of corruption to those responsible for it, including corrupt officials and politicians who have engaged in bribery.

Furthermore, it helps establish financial penalties that are commensurate with the crime and that are based on the harm caused while giving people who have suffered from corruption a stake in the enforcement process.

Finding innovative ways to give voice to victims of corruption is crucial to ensuring that the full harm of corruption is recognised. This includes giving recognition to victims of corruption and encouraging prosecutors to commit to identifying the full harm caused by an act of corruption and the potential victims harmed. But this will only happen if NGOs keep on chipping away at the issue and continually putting it on the agenda each time a case comes to court.

 

Dr. Mark Said is an advocate