1. Asset Recovery in the United Nations Convention against Corruption
OSCE – UNODC
Workshop on Strengthening International Legal Cooperation among Member States of the OSCE to Combat Transnational Organized Crime
7-9 April 2008
Brigitte Strobel-Shaw, UNODC

2. Cases of Grand Corruption
Mobuto, Zaire
US $ 5 billon
More Than the Foreign Debt
87% of the Annual Government Budget
Duvaliers, Haiti
US $ 500 million
Nigerian kleptocrats
US $ 100 billion
3-4 times the Foreign Debt
Brigitte Strobel-Shaw, UNODC

3. The United Nations Convention against Corruption
Criminalization
Prevention
International
Cooperation
Asset
Recovery
Brigitte Strobel-Shaw, UNODC

4. UNCAC – Status of Ratification
Adoption: General Assembly Resolution 58/4 of 31 October 2003
Entry into force: 14 December 2005
Signatories: 140, Parties: 111
Brigitte Strobel-Shaw, UNODC

5. Brigitte Strobel-Shaw, UNODC
Chapter V, Asset Recovery (art ) “The return of assets is a fundamental principle of this Convention… Parties shall afford one another the widest measure of cooperation and assistance in this regard” (art. 51)
Brigitte Strobel-Shaw, UNODC

6. Asset Recovery: Chapter V of the UNCAC
Chapter V on Asset Recovery is a major breakthrough and is closely linked to the other chapters of the Convention:
Prevention: Chapter II contain provisions on prevention of the diversion of funds, in particular of corruption (art. 8) and money-laundering (art. 14)
Criminalization: Chapter III establishes the criminal offences to which chapter V is applicable
International Cooperation: Chapter IV complements Chapter V with innovative provisions on international cooperation, particularly on mutual legal assistance (art. 46)
Brigitte Strobel-Shaw, UNODC

7. Typical steps of an asset recovery case as reflected in the UNCAC: (1)
Tracing / identifying / locating: art. 52, 55 (2, 3), 56, 58
Seizure / Freezing: art. 54, 2 / 55, 2, Confiscation: art. 54, 1 / 55,1
Return / Recovery: art. 57
Brigitte Strobel-Shaw, UNODC

8. Brigitte Strobel-Shaw, UNODC
Prevention and detection of transfer of proceeds of corruption (art. 52)
States Parties must require their financial institutions to:
Verify the identity of customers
Determine the identity of beneficial owners of high-level accounts
Apply enhanced scrutiny to accounts maintained by prominent public officials
Report suspicious transactions to competent authorities
Prevent the establishment of banks with no physical presence – “shell banks”
Brigitte Strobel-Shaw, UNODC

9. Special cooperation and Financial Intelligence Units (art.56-58)
States Parties
shall endeavour
Forward information on proceeds of corruption to another Party without request – when believed that this may trigger investigation and prosecution by receiving Party
States Parties
shall cooperate to
prevent and combat
transfer of proceeds
of corruption and promote
recovery and shall consider
Establishing Financial Intelligence Units for receiving, analyzing and disseminating to competent authorities reports of suspicious transactions
Brigitte Strobel-Shaw, UNODC

10. Global implementation of article 52
Brigitte Strobel-Shaw, UNODC

11. Typical steps of an asset recovery case as reflected in the UNCAC: (2)
Tracing / identifying / locating: art. 52, 55 (2, 3), 56, 58
Seizure / Freezing: art. 54, 2 / 55, 2 Confiscation: art. 54, 1 / 55,1
Return / Recovery: art. 57
Brigitte Strobel-Shaw, UNODC

12. Art. 54 para 1: Confiscation Models
CONVICTION BASED
To give effect to a foreign confiscation order, 54 (1a) (mandatory)
To order confiscation of foreign property, 54 (1b) (mandatory)
The confiscation follows a criminal conviction against the person.
NON CONVICTION BASED (= IN REM, = CIVIL FORFEITURE)
Consider: Confiscation without criminal conviction (1c) (non mandatory).
The action is against the property, not against a person.
Brigitte Strobel-Shaw, UNODC

13. Criminal Confiscation
The model used in the 1988 Drug Convention
The Convention does not make any difference between value-based (no need for evidence that the property is tainted = proceeds or instrumentalities), and object-based (tainted property) criminal confiscation regimes.
Mostly done through a civil process (civil standard of proof applied after conviction). In common law systems, the confiscation order is a money judgment against the accused for the mount of the benefit of the crime.
Brigitte Strobel-Shaw, UNODC

14. Brigitte Strobel-Shaw, UNODC
Criminal Confiscation: Overview over implementation of Art. 54 subpara (1a) and (1b)
Brigitte Strobel-Shaw, UNODC

15. Non-conviction-based confiscation: Art. 54 subpara (1c)
Civil action against the property. The non-conviction based confiscation follows a tainted property scheme: It has to be proven that the property is tainted (proceeds / instrumentalities)
Advantages:
When no conviction is possible (perpetrator absconded, political opposition, weakened judicial system in the requested country)
Civil standard of proof is applied from the beginning (confiscation may be possible although the perpetrator has to be acquitted by criminal standards)
No need for dual criminality
No issues of retroactivity
Examples: the US, Ireland, the UK, Italy, Australia, Slovenia, Ontario (Canada), South Africa
Brigitte Strobel-Shaw, UNODC

16. Brigitte Strobel-Shaw, UNODC
Non-conviction-based confiscation: Overview over implementation of Art. 54 subpara. 1 c)
Global implementation of art. 54 (1 c)
Brigitte Strobel-Shaw, UNODC

17. Alternative: Direct recovery, art. 53
Civil action to establish title to or ownership of property (art. 53, 1)
Compensation or damages (art. 53, 2)
Legitimate ownership of a third party in the decision on confiscation (art. 53, 3)
Brigitte Strobel-Shaw, UNODC

18. Direct Recovery Overview over implementation of art. 53
Brigitte Strobel-Shaw, UNODC

19. Brigitte Strobel-Shaw, UNODC
Complementary provision on international cooperation: Overview over implementation of Art. 55
Brigitte Strobel-Shaw, UNODC

20. Typical steps of an asset recovery case as reflected in the UNCAC: (3)
Tracing / identifying / locating: art. 52, 55 (2, 3), 56, 58
Seizure / Freezing: art. 54, 2 / 55, 2, Confiscation: art. 54, 1 / 55,1
Return / Recovery: art. 57
Brigitte Strobel-Shaw, UNODC

21. The Disposal of Confiscated Property (art.57)
Return to requesting Party
Embezzled public funds or
laundering of embezzled
public funds
Return to requesting Party if it can
reasonably establishes prior ownership
Proceeds of other
offences of corruption
Confiscated property may be
returned to the requesting Party,
prior legitimate owner or
used for compensating victims
Other cases
Return of assets is unconditional, Parties to give special consideration
to agreements for the final disposal of assets
Brigitte Strobel-Shaw, UNODC

22. Brigitte Strobel-Shaw, UNODC
Specifics of art. 57 UNCAC, compared to the UNTOC regime on the sharing of confiscated proceeds of crime
Return of assets is unconditional, the return is not at the discretion of the confiscating State
Convention establishes rules for the return of assets, depending on how closely the assets were linked to the requesting State Party
Asset-sharing not foreseen in the Convention, reasonable expenses can be deducted
Bilateral agreements on the final disposal of confiscated funds are possible, including on voluntary monitoring of the use of returned funds
Brigitte Strobel-Shaw, UNODC

23. Global Implementation of Art. 57
Brigitte Strobel-Shaw, UNODC

24. Global technical assistance needs for the implementation of UNCAC
Brigitte Strobel-Shaw, UNODC

25. Conference of the States Parties
Promote, Facilitate & Review Implementation
Make recommendations
Facilitate Information Exchange
Brigitte Strobel-Shaw, UNODC

26. Conference of the States Parties
COSP 3
2009 Qatar
COSP 2
28/1 – 1/2/2008, Indonesia
10-14/12/2006, Jordan
COSP 1
Entry into Force
14 Dec 2005
Brigitte Strobel-Shaw, UNODC

27. The 1st Session of the Conference of the States Parties
Asset Recovery
Review of Implementation
Amman, Jordan
December 2006
The first session of the CoSP held in Jordan in December 2006, adopted 8 resolutions and 1 decision.
I would like to focus on what emerged as the three key areas at the Conference: which were Review of Implementation, Asset Recovery and Technical Assistance.
Related to these, the Conference also adopted a resolution on how it wants the Secretariat to gather information both on the implementation of the Convention and on technical assistance needs.
Technical Assistance
Information Gathering
Brigitte Strobel-Shaw, UNODC

28. Brigitte Strobel-Shaw, UNODC
Asset recovery: recommendations of the Working Group of the Conference of the States Parties pertaining to asset confiscation and forfeiture 1st session, Vienna, August 2007
Practical tools: Database containing domestic legislation and judicial decisions, practical handbook, expanding the MLA request writer tool
Analysis of legal frameworks, development of different forfeiture models, including for non-conviction-based forfeiture
Establishment of a global network of focal point on asset confiscation and recovery
Brigitte Strobel-Shaw, UNODC

29. Brigitte Strobel-Shaw, UNODC
The Second Session of the CoSP: Indonesia, January 2008 Resolution 2/3 on Asset Recovery
The Conference reiterated that the return of assets is one of the main objectives and also a fundamental principle of the United Nations Convention against Corruption
The Working Group shall continue its work and hold at least two meetings prior to CoSP 3
identify ways and means to translate its recommendations into action
explore the means of building confidence, facilitate the exchange of information and ideas on the expeditious return of assets and encourage cooperation between requesting and requested States
continue its discussions with a view to further developing cumulative knowledge in the area of asset recovery
The Conference requests UNODC and invites, as appropriate, other organizations to continue to support States to strengthen their capacities in all areas relevant to the successful recovery of assets
Brigitte Strobel-Shaw, UNODC

30. Stolen Asset Recovery (StAR) Initiative
Launched in Washington by the
World Bank and UNODC on
17 September 2007 to:
Help countries recover assets
Help countries to build capacity to deter new flows
Pilot countries will receive special assistance to develop legal and investigative capacities (anti-corruption agencies, FIUs, mutual legal assistance)
Engage in global advocacy to lower barriers to asset recovery
Brigitte Strobel-Shaw, UNODC

31. For further information: THANK YOU FOR YOUR ATTENTION
United Nations Office on Drugs and Crime Vienna International Centre PO Box 500, A-1400 Vienna, Austria
Tel:
Fax:
convention_corruption.html
THANK YOU FOR YOUR ATTENTION
Brigitte Strobel-Shaw, UNODC