Criminalizing illicit enrichment of public officials


MANS will propose to the Montenegrin Parliament to adopt amendments of the Criminal Code, which criminalizes illicit enrichment of public officials, in accordance with the United Nations Convention to Combat Corruption, which was ratified by Montenegro, as well as the recommendations of the European Commission, United States and international experts.

The case of a secret Swiss account of Svetozar Marovic’s  wife re-actualized the issue of criminalizing illicit enrichment of public officials, which recommended and the European Commission in the last Progress Report on Montenegro. During the drafting of the new Act on the fight against corruption, the United States submitted official comments by which are proposed that in the Law is included and the criminalization of illegal enrichment of public officials, but the proposal was rejected without any valid explanation.

The UN Convention on the fight against corruption, which was ratified by Montenegro in 2006, in Article 20 recommends to that States Parties to consider the possibility of “adopting such legislative and other measures as may be necessary to establish as criminal offenses, when committed intentionally, illicit enrichment, actually a significant increase of public goods of the official that he can not reasonably explain in relation to his legal income”. Illicit enrichment is so far criminalized in 44 countries that have ratified this Convention, and concrete cases show that it led to significantly better results in the fight against corruption.

International expert Rupert Vining, who worked for years as State Prosecutor in Great Britain, in 2012 recommended to the Government to criminalizes illicit enrichment through amendments to the Criminal Code because he believed that this would contribute to the fight against corruption in Montenegro and efficient proving of these cases by the Prosecution.

After detailed analysis of the Montenegrin legislation and the relevant constitutional norms, as well as the level of corruption in Montenegro, an expert said that “There is a strong case for the introduction of illicit enrichment”, and concluded that the legal framework allows incorporation of illegal enrichment in domestic legislation, and that decisions on criminalization of illicit enrichment “means for the government primarily a political choice, not a technical legal decision of compatibility”.

In other words, the expert noted that the criminalization of illegal enrichment of public officials depends solely on the political will of authorities to provide concrete results in the fight against corruption.

A number of countries have introduced the illicit enrichment of public officials as offense in the way they connected the criminalization with the statements on income and assets, and the expert suggested that these data are used as the primary source of evidence in criminal investigations and prosecutions. In that way the public officials would be obliged to submit to the prosecution evidence that the assets not officially registered, they acquired in a lawful manner. There is no doubt that the burden of proof on the public officials who conceal information about their wealth would greatly facilitate the work of the prosecution and would allow greater efficiency in processing of these cases.

The case of a secret Swiss account of Svetozar Marovic’s wife, who is not mentioned in his official declarations of income and assets, with the amounts that the family Marovic was not able to save from its official income, is the best argument in favor of criminalization of illicit enrichment. Namely, instead of extensive and detailed investigation which will involve spending large resources of prosecution, criminalization of illicit enrichment would obliged Marovic to prove that the hidden money gained he acquired in a lawful manner, or the funds would be automatically confiscated by the state.

We believe that a large number of senior public officials is illegally enriched in the previous period, and we are sure that there is a public interest that by amending the laws such a practice is criminalized. Our legal team works on a concrete proposal for amendments to the Criminal Code that we will soon send to all caucuses in the Parliament, in order to finally criminalizes illicit enrichment of public officials.

Vanja Calovic
Executive Director

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