Criminalization of illegal enrichment

• Autor: Davor Derenčinović

Derenčinović, Criminalization of illegal enrichment

1

Criminalization of illegal enrichment*

By Davor Derenčinović

According to the public opinion’s group of definitions, some behaviour or act

should be considered as corruption as the public opinion considers it as corruptive.

Corruption also can be defined as a process in which at least two persons, through

an illegal exchange conducted with purpose of getting certain personal benefits, do

something contrary to public interest and, by breaching moral and legal norms, threa-

ten the fundamentals of democratic society and the rule of law. In any case, corrup-

tion is the generic term set for criminal offences such as bribe giving, bribe accepting,

trading in influence and so on.

The undisputed fact about corruption is that it can be found everywhere. There

is no field of social life immune to this global phenomenon. Using the criminological

terminology, the risk zone of corruption is very broad; in other words, it is much more

likely to become a victim of corruption than of any other crime.

Public polls recently carried out in Croatia, clearly indicate that citizens perceive

corruption as a widespread phenomenon. While the perception of corruption sug-

gests that the extent of it has become alarming, statistical figures offer opposite con-

clusions. Namely, that corruption criminal offences are not among those prevailing in

criminal statistics. For instance, in the period between 2005 and 2007, the total num-

ber of reported corruption criminal offences in Croatia was slightly above 500. In the

same period, 211 persons were indicted and 191 convicted. The vast majority of

them were convicted for the most typical so-called hard-core corruption offences:

96% of these were in fact constituted by bribe giving and bribe accepting.

How to explain the misbalance between official statistics and public perception

on corruption? Corruption offences, particularly bribery giving and bribery accepting,

are, by the definition, ”secret” offences. The dark number of these offences, i.e. the

number of offences committed but not recorded in official statistics for various rea-

sons, is considerable given the fact that neither of two sides has an genuine interest

in disclosing an illegal exchange.

One of the measures intended to overcome difficulties pertaining to the “secret”

nature of corruption criminal offences is the criminalization of illegal enrichment.

Unlike hard-core bribery offences (in which the substance of a crime is an illicit quid

pro quo exchange), illegal enrichment means the accumulation of wealth in the

hands of public officials who cannot reasonably explain or justify the background or

origin of these funds. When illegal enrichment is involved, the burden of proof is not

on the prosecutors but on the defendants who must prove that they didn’t make their

wealth by abusing their official duties or taking part in any bribery offence or in some

other illicit conduct. Criminal offences of illegal enrichment make it easier for the

prosecution because there is no need for them to prove neither the so-called quid pro

quo test nor the corruptive intent.

* Published in “Freedom from Fear”, july 2009. Recommended bibliography.