20 February 2024 –

State-of-the-art transparency and accountability measures as well as the inclusion of representatives of civil society and victims of corruption in asset recovery and return procedures are crucial to help ensure that assets are used to advance human rights and the fulfillment of the Sustainable Development Goals.

Representatives of TI France, CiFAR (the two organizations chairing the UNCAC Coalition’s Working Group on Asset Recovery) and the UNCAC Coalition stressed this message in their interventions in an expert meeting organized by the United Nations Office of the High Commissioner for Human Rights (OHCHR) on the obstacles to repatriation of funds of illicit origin to the countries of origin and their impact on the enjoyment of human rights on 13 February 2024.

• Recording of the panel discussion on UN Web TV

Mathias Huter, Managing Director of the UNCAC Coalition, stressed that most countries do not publish asset recovery strategies or policy guidance documents, regular statistics on their asset recovery activities, or proactively release documents and information relevant to specific asset returns processes, and that representatives of victims of corruption are usually not involved and consulted in asset returns. 

• Transcript of the intervention

Mathias provided several good practices, such as the release of an asset recovery strategy and policy guidance documents by Switzerland, the United Kingdom’s asset recovery statistical bulletin, and Ireland being one of the countries that, while not proactively publishing an asset return agreement with Nigeria, at least releasing it upon request. He also highlighted the impact of the civil society monitoring of cash disbursements to poor Nigerian families in the return of the Abacha loot, led by the NGO ANEEJ. The ongoing return of stolen assets from Switzerland to Uzbekistan through the United Nations Uzbekistan Vision 2023 Multiparty Trust Fund is one of the few examples where civil society has a formal role through a Civil Society Advisory Council. 

Directed toward States, he underlined that future asset return mechanisms should feature strong transparency and accountability frameworks, including policies and mechanisms to:

• protect any persons who report concerns and possible wrongdoing in the use of the returned funds,
• disclose and manage any real or perceived conflicts of interest of the entities and people involved,
• automatically disclose in detail who benefits – including details on the implementing organizations, contracts, contracting data, as well as information on beneficial owners of contractors and sub-contractors – and details on how the funds are used, as well as
• establish a strong access to information policy to allow members of the public to request information that is not published by default online.

Sara Brimbeuf, a Senior Advocacy Officer focused on Illicit Financial Flows at Transparency International France, underlined that the recovery and return of proceeds of corruption can be a symbol of justice: When destination countries confiscate assets unlawfully acquired by corrupt officials and return them to the people in origin countries, they send a clear message that crime does not pay and that they are no longer a safe haven for corrupt funds. When the origin countries’ people benefit from returned funds explicitly labelled as confiscated stolen assets and proceeds of crime, it serves as a powerful symbol of justice.

No country has adopted a comprehensive, consistent and systematic asset recovery policy enshrining the principles of transparency, accountability and inclusiveness. On the contrary, international asset recovery experiences and practices remain disparate and inconsistent, with significant discrepancies from one recovery process to another, even in recent cases.

Furthermore, Sara detailed how French civil society organizations, through many years of litigation and advocacy, had managed to obtain legal standing in the Biens Mal Acquis (“ill-gotten gains”) cases. The term is now used to describe cases where individuals in top government roles from countries including Equatorial Guinea, Syria, Gabon, Congo, and Lebanon,  or close associates or family members of theirs, have amassed assets on French territory with illicit funds. 

Criminal complaints by French anti-corruption CSOs led to the historic conviction of Equatorial Guinea’s Vice-President in 2017, and since 2021, case law has also enabled anti-corruption associations to be granted the status of civil party, thus allowing them to launch criminal proceedings relating to crimes of corruption.

The “Biens Mal Acquis” cases created momentum toward the adoption of a responsible asset repatriation framework. However, victims based in foreign countries rarely, not to say never, have access to remedies in France.

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Lucia Cizmaziova, Research and Policy Manager with the Civil Forum for Asset Recovery (CiFAR), presented different forms of indirect asset returns, where funds are returned to the country of origin through a third party entity, and stressed the importance of transparency, accountability, and stakeholder inclusion in these processes, including in cases where a multilateral organization such as the UN or the World Bank take on a trustee role. She highlighted that the use of such third-party arrangements is especially useful in situations with concerns over the potential misuse of funds, when the misappropriated funds relate to individuals who still hold power or considerable influence in the jurisdiction the funds are being returned to, where concerns exist related to governance and human rights violations that may be furthered or exacerbated by the use of the returned funds, or where there is otherwise a need to ensure that funds are returned as closely as possible to those who have suffered as a consequence of the misappropriation.

Lucia provided examples of what it would mean to apply high levels of transparency and inclusivity in these returns: 

• publishing as much information as possible publicly, including information on return agreements and on the structure and administration of these return mechanisms;
• establishing a process for sharing information with independent civil society organizations as the representative of the public on a regular basis;
• open calls for tenders and participation in the return mechanisms;
• publishing information about why certain organizations were chosen to disburse funds and how the return process was implemented;
• conflict of interest rules for persons involved and rules excluding those involved in corruption cases related to the return from participation
• inclusion of independent civil society organizations, victims, and victims’ rights groups to provide strategic guidance into the operations of the return, ideally as part of a decision-making governing body and also monitoring of the use of returned funds; 
• proactive engagement of civil society organizations that represent women and other marginalized groups, and 
• to include both anti-corruption civil society and civil society focused on work related to the return’s objectives (once decided).

Furthermore, she emphasized that illicit outflows can have a devastating impact on the progress toward the SDGs in low-income countries. However, illicit finance does not know borders and negatively impacts institutions worldwide. For a real and sustainable impact, there needs to be action on both ends, by countries of destination and also countries of origin. 

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