Contenu du sommaire : Face à la corruption, quelles stratégies ?

In this article, Renaud Van Ruymbeke looks back on the insidious evil of corruption undermining democracy and the rule of law in all countries of the world. The author takes stock of the forms of corruption given shelter by "non-cooperative countries": money laundering, tax evasion, embezzlement, trafficking of all kinds, etc. And among the strategies implemented to deal with it, he focuses on the independence and specialisation of the judiciary. Nevertheless, faced with the scale of the phenomenon, its proliferation and its consequences, only "collective political will" can effectively tackle the issue.

Drawing upon observations of hearings held in financial trials from recent years, this article demonstrates the specific relationship between elites and the specific rules of law, justifying their circumvention while at the same time defending their legitimacy. The perspective offered by the ethnography of trials allows a detailed examination of the way these actors justify and explain their practices when an external authority intervenes. This kind of relationship to the rules can be observed not only during trials, but spans the breadth of financial criminal justice.

Tax havens remain a leading problem for the balancing of national budgets, and an invaluable boon for the global financial sector. Even a cursory glance at history suffices to show that ever since taxes have existed, people have found ways and places to avoid them. However, defining the term "tax haven" is a difficult exercise, and international financial institutions are unable to agree on the list of non-cooperative States. The difference in their approaches can essentially be explained by political and geostrategic considerations. They intend, on behalf of questionable motives, both to protect those who would prepare these stigmatising lists, and to preserve the vulnerability of the States they seek to include on them.

In their work "Résister à la corruption" [Resisting corruption] (Gallimard, coll. "Tracts", no 36, 2022), Éric Alt and Élise Van Beneden express their concern that despite the legal advances made over the past twenty years, the situation is worsening. In this interview, Éric Alt returns to certain points outlined in the book, such as the role of the National Financial Prosecutor's Office, and civil society initiatives such as international networking among journalists, which have enabled major progress. While the role of whistle-blowers and that of anti-corruption associations are now fully recognised, the prevention component still needs to be reassessed.

After a discussion of the genesis of the approaches taken by various international authorities to the handling of ill-gotten gains in light of the scale of the misappropriation of funds, the article analyses the decisive action taken by Transparency International and other NGOs to obtain justice. In the wake of the sanctions pronounced against certain African Heads of State, questions arise about the restitution of assets to their countries of origin. The author examines the need for a structured and transparent system to ensure the return of seized assets in appropriate conditions.

The economic and financial violations that accompanied the rise of the modern State are again on the rise in Burkina Faso. The efforts to counteract these economic and financial violations are of a dual nature, including both prevention and repression. Resources for the prevention of financial crime include police actions, regulatory instruments, public institutions, and private entities. As for the resources for its repression, the creation of judicial units specialising in the punishment of economic and financial violations and organised crime has boosted the judicial response to the phenomenon. When the national center for the management and recovery of frozen, seized or confiscated assets becomes operational, it too will be a substantial supplement to the system. International criminal cooperation also remains a major challenge, particularly with regard to the increasingly transnational nature of crimes and means of repression.

Economic and political integration efforts in the West African space have resulted in the creation of community organisations constituting a framework for the design of development strategies for States in this sub-region. The community framework thus results in a body of criminal law for economic and business matters that is uniform at the national level and heterogeneous at the sub-regional level. The justice system, as the primary actor in the criminal response to money laundering and the financing of terrorist activities, faces multiple challenges, including how to adapt its structure by implementing the specialisation of its component units, how to improve its practice by advantageously incorporating new techniques for judicial processing and different forms of mutual assistance, including the use of communication gateways, recourse to international aid, and asset identification and management. In this context, the judicial response must be reimagined and adjusted to meet the specific nature of the new financial threats.

It is difficult to define corruption on the basis of a specific set of actions and the intent to defraud. It exists in the context of a relationship that always involves at least three actors (the primary perpetrator, the agent, and the victim), and in democratic societies it has two distinct meanings. First there is the sense of corruption as a misuse of public authority for private ends; then there is corruption in the moral and quasi-biological sense, as a sickness that causes the degeneration and progressive decomposition of an originally-healthy organism. It is therefore both a crime and an illness of the body politic, a contagious disease of politics. If corruption occurs within the triadic relationship between the State, its agents and the public, the question of what acts constitute corruption and what acts are perceived as such depends on the form of the State. If we have become much less intolerant of the various forms of corruption in recent times, this is because the form of our States and even the premises underlying their legitimacy have changed. Since 1990, the form of the State in liberal democracies has been undergoing a process of transformation, from the nation-state to the market-state. In all likelihood, there is just as much corruption in the market-state as in the nation-state, but it presents itself differently. What is now condemned is no longer the breach of State interests, but the scandal of preferential treatment.

On September 2, 1941, Paul Didier became the only judge to refuse to take an oath of loyalty to Marshal Pétain. He was detained, removed from the bench, and imprisoned in Châteaubriant internment camp, and finally placed under house arrest. This courageous act of powerful symbolic importance was not the only committed stand taken by this strong personality over the course of a career spent serving the values of justice. However, contrary to a version of events reconstructed after the war, Judge Didier's public refusal to take the oath on that day was not in fact organised in collaboration with the few judges of the resistance who consented to the oath in order to be able to continue their clandestine struggle.

Restorative dialogue between victims and perpetrators of terrorist acts is certainly no panacea, but may help to restore the ability of human beings to act ethically, and facilitate personal and relational transformation. It is an approach that offers the opportunity to "unmask" and "see" the human beings behind terrorist acts, so that victims do not remain "objectified", the perpetrators "demonised", and civil society "insecure". But is this the right time for France to consider such an approach, one more communicational and less strictly penal?

In criminal matters, the principle of the independence of parties has always provided for the approach of self-representation, with exceptions for certain types of proceedings, or in cases involving vulnerable minors or protected adults. It has also been a "false independence", however, because the law has sometimes reserved the application of adversarial proceedings to persons assisted by an attorney. Under the influence of the European Court of Human Rights, independence has been strengthened, and has become a genuine principle. This strengthening of independence for self-representation would seem to be a healthy development, since it would help guarantee the effectiveness of the right to a fair trial. However, if we consider the notion of vulnerability in the broad sense, since it can also be dependent on the circumstances, it follows that all litigants must be considered vulnerable. Consequently, their independence may actually harm their interests.

In recent years, we have seen growth in the practice of coaching in the public sector, and more particularly in the world of justice. This is a rather unprecedented relationship of mutual aid in the exercise of the profession of judge or prosecutors who are unaccustomed to expressing their emotions and are most often asked to "grit their teeth" in the face of difficulties. Coaching, described as the provision of support guided by specific ethics, is intended to help improve working conditions and prevent psychosocial risks. Drawing on a few selected accounts, this article analyses how it works and the practices currently in place among judges.