Getting rich quick...Should it be a crime?

“We don’t think that all politicians are corrupt. We believe that a democracy has to be based on different (political) parties, but we’ve come to a juncture where the good pennies need to be separated from the bad”, Eduardo Dâmaso used this metaphor, speaking to the little more than 15 people who had come to hear him speak in the CCDR Algarve auditorium.

José Leiria, president of the regional council of the “Ordem dos Advogados” was the first to use the “c” word. “Corruption is a crime that involves victims – in general, the tax payer! It’s the ordinary citizen, with his values in ecology, justice and democracy that is affected by these forms of abuse. Hiding the fact that there’s huge corruption existent in Portugal is like burying one’s head in the sand – not wanting to admit to what is going on in our country!”

“The crime of corruption is difficult to prove – not just because everything takes place in private places – but because there’s a conspiracy between the parties involved. Whereas, in other crimes, there’s usually someone who complains about something, very often this doesn’t happen in these kind of crimes – which makes the whole process a lot more diffficult” as it goes through the courts.

For José Leiria, the «Correio da Manhã» petition presents a serious problem, as it inverts the onus of proof.

“Any individual is presumed innocent until proven to the contrary,” he explained. “But what this petition is doing, is saying the opposite. It’s saying that given determined evidence and certain indicators, a person should be considered guilty – and will have to prove legal provenance” of his worth/ assets”.

Thus, “it will threaten people’s private lives”. For example, take the case of someone receiving a bank transfer from someone with whom they’re enjoying an amorous relationship. Does that mean that having a lover becomes a crime?

“When we oblige someone to reveal the source of their income, we’re asking them to reveal facts about their private life – which is neither just, nor legitimate”.

But, when it comes to politicians, Leiria admitted that the situation changes. “Why? Because of the state that the country is in, and the lack of transparency that exists within the politican classes”, although he still considers whoever levels blame should also level proof (or at least the Public Ministry should do so).

And, what about those that level blame. What do they say? António Ventinhas, solicitor and member of the board of the Public Ministry’s syndicate of magistrates, answers.

“In a market economy, individual enrichment is desirable and encouraged. If businesses and citizens are rich, so too will be the State”. But at the same time, in such a system “a form of enrichment that operates outside the law, should be suppressed”. “No-one other than criminals” will accept it. Or will they?

Ventinhas recalled that Portugal signed the UN Merida Convention (against corruption) in Mexico, on 9th December 2003. In Article 20 of the convention it says that each state “will consider legal measures to counter illicit enrichment through crime, when committed intentionally”. In practice however, in 2009, when the issue came up for debate in parliament in Lisbon the “criminalisation of corruption was vetoed overwhelming by votes from the Socialist Party and CDS-PP”.

And is there a need for more laws? The solicitor cited a number of well-respected political figures who have defended this idea: João Cravinho, the former President of the Republic, Jorge Sampaio, Freitas do Amaral, António Reis, António Pires de Lima, Cândida Almeida and Maria José Morgado.

Ventinhas considers that this kind of crime should extend to “all those that exercise public duties” and, who in so doing, “have a special relationship with power”.

He played down Leiria’s point about the “inversion of the onus of proof”, as he explained it is always up to the Public Ministry to investigate – just as the petition’s texts mentions: any “manifest disproportion” between that which the suspect of illicit enrichment has earnt, and that which he already possessed.

“The way the crime is constructed has to be properly investigated. The Public Ministry would have to prove that it wasn’t possible for someone earning €2.000 (a month) to suddenly appear with a yacht, and several million euros in the bank! It would have to look at all the other possibilities: whether that person had come into an inheritance, won the lottery – and then it would make its decision on the source of the final assets”.

The problem is that today there are so many ways of hiding activities. “There’s always an offshore account where money can be hidden – or a Swiss bank account in the same of a nephew. Proving that x-money belongs to y-person is never simple. In economic-financial crimes, the laundering of capital is extremely easy. There are special channels for it – specialised services, online consultancies that have their own departments for just that kind of thing”.

“But then there are cases that are obvious. Cases of mayors that have been accused of corruption, for suspicious property dealings. There’s been investigations into their assets, and they were very high… but it was impossible to prove that they resulted from bribes by business connections – to build developments in “no go” areas according to the municipal plans (PDMs), and what-have-you. It was impossible to make the necessary connections, and so, the mayors were not prosecuted”.

With a crime of illicit enrichment, “using proof as the “manifest disproportion of initial and final earnings”, it would be possible to make prosecutions” in cases such as these, Ventinhas stessed.

Finally, João Vidal from the University of the Algarve, talked of his “concern and extreme worry” over the «Correio da Manhã» proposal, in the way it has been presented.

“Politicians are important people in our society. They hold the destiny of the nation in their hands, and should therefore be subject to great scrutiny – but for them to be subjected to that scrutiny on the basis that they are criminals, is a huge step”.

And what is “a manifest disproportion of earnings, in the end anyway? This is really meddling into people’s private lives. We’d be opening a Pandora’s Box, the results of which would be completely unpredictable”…

The discussion touched on other topics. One interesting point is that the petition only calls for the jailing of the corrupt. What about those that corrupted them, in the first place? Do they get off scott free?

Perhaps that’s an issue for another petition…