Tag Archives: IRG

What is the key to improving asset recovery? A Summary of our IRG Side Event

17 September 2021 –

How can we move forward on asset recovery? During a side event on the margins of the resumed 12^th session of the Implementation Review Group (IRG) in Vienna, a panel of speakers reflected on the advances made in the field of asset recovery, both nationally and internationally, and presented recent developments on the ground from their respective countries. Over 70 governmental, diplomatic and civil society attendees joined for this session organized by Transparency International (TI) and the UNCAC Coalition, co-sponsored by France and Nigeria, and moderated by Gillian Dell from TI, and Board Member of the UNCAC Coalition.

Gillian Dell, Head of Conventions Unit at Transparency International opened the session with a stark reminder that by conservative estimates, about 400 billion dollars in corruption proceeds have been diverted across borders from developing countries in the last ten years. Only a fraction of that has been recovered and returned, despite recent improvements. The Stolen Asset Recovery Initiative (StAR) and other organizations have identified a range of barriers to overcome, and the commitments in the UNGASS’ political declaration, if implemented by states, could help to address barriers and improve asset recovery outcomes. What are the commitments?:

Member States committed to using available tools for asset recovery and return, including conviction-based and non-conviction-based confiscation, and to strengthening efforts to confiscate and return proceeds of corruption when employing non-trial resolutions or settlements;
Member States also agreed to strive to ensure that the return and disposal of confiscated property is done in a transparent and accountable manner and there is also emphasis on the need to preserve the value and condition of proceeds of crime pending the conclusion of confiscation proceedings, including with a view to returning these assets in the future, in accordance with chapter V of the Convention;
A further commitment from Member States is to consolidate and expand data collection on asset recovery and return through gathering and sharing information on volumes of assets frozen, seized, confiscated and returned in relation to corruption offences, and the number and types of cases, as appropriate;
Finally, the Political Declaration invited the UNCAC Conference of the States Parties (CoSP), after the evaluation of the findings from the second review cycle, to organize a CoSP special session on asset recovery, to consider all options available under the Convention, including exploring possible areas for improvement to the international asset recovery framework.

Panelists addressed these commitments and provided concrete examples and suggestions for making progress on them. In the case of France, Caroline Goussé, legal adviser from the Directorate of Economic Diplomacy within the Ministry of European and Foreign Affairs, shared that France does not make use of non-conviction-based (NCB) confiscations, but does have a non-return mechanism which can be accessed at any stage of criminal proceedings that are a result of UNCAC offenses.

Specifically on returning assets, trial resolutions such as the plea-bargaining procedure of “Comparution sur Reconnaissance Préalable de Culpabilité” (CRPC) have been used to return assets in recent years. Another form of legal settlement accessible to legal persons in French rule is the Judicial Public Interest Agreement known as the “Convention Judiciaire d’Intérêt Public” (CJIP).

In terms of data collection for asset recovery, France has a specialized agency entrusted with managing assets that have been seized or confiscated. The Agency for the Recovery and Management of Seized and Confiscated Assets (AGRASC) issues annual activity reports, detailing what has been returned and how, and it is also working on proposals to increase data sharing on asset recovery.

Sara Brimbeuf, Senior Advocacy Officer at TI France added that the French mechanism of presumption of money laundering, introduced in the French Criminal Courts in 2013, was key in recovering a large sum of assets. It has allowed for the conviction of foreign leaders by France. Following tireless civil society advocacy, a law on asset repatriation was recently enacted. The latter was achieved through inter-ministerial dialogue and dialogues with civil society. TI France intends to monitor the operationalization of the law, ensuring that its principals will be properly translated into the domestic legal framework. To this end, it is developing indicators to assess the transparency, accountability and inclusiveness of the return process.

Emmanuel Nweke, Senior Counsellor at the permanent mission of Nigeria to the United Nations, commented on the country’s “frantic efforts” to return the many assets stashed abroad to Nigeria. In his view, the UNGASS’ political declaration lacked ambition in terms of its provisions on asset recovery: most of these articles were caveated due to conflicting interests from States Parties. Nigeria applies non-conviction-based asset recovery (NCB), which is seen as a crucial tool for the recovery of assets, along with non-trial resolutions. One recommendation was for UNODC to provide non-binding guidelines to lead states through definitions of non-trial-based resolutions.

The delegate also referred to the Advance Fee Fraud Act, which gives wide powers to Nigerian law enforcement agencies to confiscate assets and respond to foreign requests for mutual legal assistance in asset recovery without conviction. Other national acts and legislation supplement these existing tools, such as the guidelines on Asset Tracing, Recovery and Management, released in 2019 by the Attorney General’s Office. Furthermore, several superior court decisions in Nigeria have lent credence to NCB confiscation. He concluded by reiterating that Nigeria is concerned with more than mere national scenarios, and that there is interest in international asset recovery efforts, as well as hopes for asset recovery to make an appearance in the upcoming resolutions adopted at the 9^th CoSP.

David Ugolor, Executive Director of the Africa Network for Development and Justice (ANEEJ) and board member of the UNCAC Coalition, elaborated further on Nigeria’s comprehensive asset recovery architecture, mentioning the Abacha loot – a case in which tranches of funds were transferred back to the Nigerian people. Civil society, concerned about transparency with respect to the return of funds, monitored the disbursement of the second tranche of money. Nigeria has moved beyond the UNGASS declaration’s commitments to establish legislation that actively supports asset recovery. Nevertheless, issues with data-sharing, collaboration among national bodies and the weak technical capacity of law enforcement agencies have posed challenges.

Jackson Oldfield, founder of the Civil Forum on Asset Recovery (CiFAR) promoted a greater commitment to the timely sharing of information and data on asset recovery processes, including civil society and the general public. The lack of access to what is often considered sensitive information, and sharing it on an aggregate level have been persistent obstacles. Moreover, states should ensure that non-trial proceedings have transparency and accountability built into them. Best practice guidelines are another tool which can highlight examples of progress, with the lessons contained therein standing to benefit all stakeholders.

In conclusion, overcoming existing challenges in the asset recovery landscape is an issue that can be explored through plenary IRG sessions, where countries should share best practices and common challenges, if any consolidated effort is to be made in the coming years, before the UNCAC review cycle covering asset recovery draws to a close.

The NGO briefing on the margins of the 12th UNCAC IRG

17 September 2021 –

The yearly NGO briefing took place last week on the margins of the 12th resumed session of the UNCAC Implementation Review Group (IRG). The briefing was held in a hybrid manner, allowing for in-person and remote participation. 60 Participants from 35 CSOs, as well as representatives of (only) 9 States Parties, attended the briefing.

During the briefing, UNODC presented its thematic reports on the implementation of Chapter II and Chapter V of the UNCAC, including identified challenges and good practices, as well as an overview of the status of the country reviews – to this end, the pace of the second cycle review continues to be way behind schedule, with only 31 out of 188 country reports concluded (including Somalia that recently signed the Convention). The UNCAC secretariat raised serious concerns about the current pace, as it will not allow for the completion of the second cycle by the already extended deadline of June 2024. This will result in further delays in moving forward towards the next phase of the review, which should focus on follow-up actions to the first two cycles of the UNCAC Implementation Review Mechanism (IRM).

The “Marrakesh compromise”: a 10-year temporary solution, and counting

Civil society is not permitted to participate in the official IRG plenary sessions, as well as in the meetings of the other CoSP subsidiary bodies, due to persistent opposition from a small but influential group of countries. This is problematic and inconsistent with international human rights standards, Goal 16 of the Sustainable Development Goals, and with transparency and participation standards within the Convention itself. The NGO briefing is, therefore, a mere “compromise” achieved at the 4th CoSP in 2011 to keep civil society updated about the status of the country reviews and UNCAC implementation, giving room for CSOs to provide updates on their work to support the implementation of the UNCAC, as well as to allow space for discussion between the different stakeholders.

In her statement, Gillian Dell, representing Transparency International, recalled that the “Marrakesh compromise” is now 10 years old and was intended as a temporary trust-building exercise, not a permanent feature. Ms. Dell welcomed the G7 UNGASS statement committing to promoting the inclusion of civil society as observers in UNCAC subsidiary bodies and urged other UNCAC States parties to join this initiative.

Country reviews in times of COVID-19

Naturally, delays in the review process have been exacerbated by Covid-19. Many countries have postponed the country visit in the context of their review, while only very few States Parties decided to replace the in-person country visit with a virtual or a hybrid one. Mathias Huter, Managing Director of the UNCAC Coalition called on States Parties to increase the transparency of the review process and for the meaningful inclusion of civil society also in virtual country visits. He stressed that it is difficult to identify the stage of country reviews since many States Parties choose not to publish the contact details of the review focal point and do not publish updated information on the schedule of country visits.

Moreover, only 17 full country reports and 5 self-assessment checklists were voluntarily published under the second cycle. In response, the UNCAC secretariat mentioned that it made efforts to regularly update the information published on the UNODC country profile pages pertaining to the country reviews, to the extent that the country under review permits them to share such information. The UNCAC secretariat is open to any proposals that will help to improve information-sharing on country reviews, in line with the Terms of Reference of the review mechanism.

Follow-up on commitments & recommendations

Another question raised by Ms. Dell related to the recently adopted UNGASS political declaration and the extent to which the commitments made therein could serve as a basis for improving UNCAC implementation and addressing other gaps. The UNCAC secretariat highlighted that the IRM itself will not look into the UNGASS commitments. However, the secretariat stressed that the political declaration has touched upon some elements which were not originally in the Convention, including going further than the UNCAC in some areas, and that it hopes that the implementation of the political declaration will be picked up by the CoSP, leading governments to draw on it for work in areas where gaps have been identified.

Another key issue raised by Mr. Huter during the briefing concerned country actions to follow up on review recommendations since so far, in the context of the second cycle review, only one country has voluntarily published information on its follow-up actions on its country profile page. He suggested drafting a follow-up template which might facilitate the sharing of such information by the States Parties; an idea which was received positively by the UNCAC secretariat.

Mr. Huter also underlined the legalistic nature of the reviews and the fact that they do not sufficiently look into the actual enforcement and impact of anti-corruption provisions, as also mentioned in the FACTI panel report. Replying to these concerns, the secretariat mentioned that States Parties do share, to some extent, follow-up information on their actions. However, much of this information is shared during IRG sessions which are not open to civil society. In order ” to dig deeper” and to measure impact and enforcement in the context of the review mechanism, the next follow-up phase of the IRM should be discussed and shaped accordingly, the secretariat stressed.

With regards to the provision of technical assistance, UNODC shared that it supports States Parties in Covid-19 recovery, strengthening public procurement transparency and whistleblower protection. Corruption risk management processes with national health authorities have been conducted as a form of crisis response. UNODC further shared that regulation of its partnerships, including with civil society, was recently simplified, allowing for more engagement with CSOs that could become involved in supporting efforts to provide effective technical assistance to countries.

Is the NGO briefing a truly constructive dialogue?

CoSP Resolution 4/6 mentions that the objective of the NGO briefing is to “promote constructive dialogue with NGOs.” Although having the option to attend in-person or virtually, very few States Parties participated in the last few NGO briefings. Besides Transparency International and the UNCAC Coalition, CSOs such as the Global Initiative against Transnational Organized Crime (GI-TOC) and the Alliance of NGOs on Crime Prevention and Criminal Justice delivered statements and raised questions during the briefing.

Unfortunately, none of the States parties chose to address these questions or to deliver statements of their own. The Coalition raises concerns regarding this trend of minimal state party participation during the NGO briefing, coming back to the question: how should this “constructive dialogue” actually look, and where are the States Parties in this regard?

The UNCAC Coalition made the following written submissions to the resumed 12th session of the IRG as well as co-hosted these side events and wishes to reiterate its invitation to States Parties to make use of its network and expertise to advance forward-looking commitments at the upcoming 9th UNCAC CoSP.

How to Advance the UNGASS Commitments on Corruption Prevention? A Summary of Our IRG Side Event

15 September 2021 –

What should countries do to implement the transparency and anti-corruption commitments they made in the UNGASS Political Declaration? At a side event organized by the UNCAC Coalition on the margins of the resumed 12th session of the Implementation Review Group (IRG) in Vienna, a panel of four civil society experts discussed what needs to be done to advance public procurement and beneficial ownership transparency, access to information, whistleblower protection, and the role of journalists in the fight against corruption. Moderated by Helen Darbishire from Access Info Europe, the session was attended by more than 50 delegates, governmental experts, and civil society representatives.

Kristen Robinson (Open Contracting Partnership) on Public Procurement

In the UNGASS Political Declaration (PD), States Parties recognized the need for greater transparency throughout the whole public procurement cycle and the important monitoring role that civil society and the media can play in this regard. The PD also recognized the need for structured, open contracting data and the right of the public to access it. As countries around the world mobilize vast amounts of public money to set up Covid-19 recovery funds, it is crucial that States Parties implement and operationalize the commitments they made during the UNGASS. At the same time, the current guidance from UNODC on public procurement (from 2010) should be updated to reflect the good practice examples that have emerged in this area in recent years.

Louise Russell-Prywata (Open Ownership) on Beneficial Ownership

The affirmation in the UNGASS PD that beneficial ownership information (BOI) should be “adequate, accurate, reliable and timely” is a welcome step in the right direction and States Parties should move to implement this provision in practice. “Adequate” requires States Parties to ensure that BOI contains sufficient detail to identify the ultimate owners of assets. “Timely” is about obliging companies to submit their complete BO data swiftly, whilst “accurate” entails taking steps to verify the data and to apply proportionate sanctions if companies fail to comply with their obligations. This can be done most efficiently if BOI is collected and shared in a structured format, following the beneficial ownership data standard. Evidence from countries that already have beneficial ownership registries in place shows that implementing the PD’s provision on beneficial ownership is both achievable and impactful as an anti-corruption tool. Moreover, States Parties considering resolutions during the upcoming 9th CoSP should build on the interlinkages that the PD makes between issues such as BOI and Public Procurement.

David Banisar (ARTICLE 19) on Whistleblowing and Civic Space

In recent years, a shockingly high number of journalists and whistleblowers have been killed, many of whom were involved in investigating corruption scandals. This reflects the fact that, although many countries established laws on whistleblowing, they often do not provide much protection in practice. Unfortunately, the UNGASS PD – albeit containing some more progressive language on whistleblower protection – does not make any real progress in this area. Therefore, building on good practices from other UN bodies, such as UNEP’s establishment of a warning system for threats against Environmental Defenders, UNODC could create its own mechanism on corruption-related whistleblowing. Furthermore, UNODC should issue guidance on the protection of journalists and civic space under Art. 13 of the UNCAC and assess how well its 2015 guidance on whistleblowing has been implemented.

Mathias Huter (UNCAC Coalition) on Transparency in the UNCAC Review Mechanism

In the UNGASS PD, States Parties recognized the important contribution that civil society and the media can make to the fight against corruption. The PD also emphasized that the UNCAC review process is an important source to identify good practices, as well as technical assistance challenges around the world. However, as many of the review’s outcome documents are not accessible to the general public, the process is not transparent and fails to be an engine for reform in many countries. Unfortunately, the PD only refers to States Parties voluntarily publishing their full country report, which so far only 17 countries have done for the second review cycle. Therefore, the UNCAC Coalition encourages all States Parties to join the 28 countries that have already done so and sign the Coalition’s Transparency Pledge, committing to voluntarily publishing all outcome documents of the UNCAC review and including civil society in the process. The UNCAC Coalition will continue to support CSOs around the world in drafting parallel reports on UNCAC implementation in their countries.

Ways forward

In the ensuing open discussion, the panelists shared good practice examples and existing guidance materials with civil society representatives and States Parties delegations. In her concluding remarks, Helen Darbishire reiterated the importance of transparency by emphasizing that civil society often has solutions to the technical problems that States Parties are facing, but can only contribute if it has access to the necessary information. The session ended with Mathias Huter inviting States Parties that are working on resolutions for the upcoming 9th CoSP to reach out to the UNCAC Coalition for technical input, including good practice examples.

NGO Briefing during the UNCAC IRG Session on 7 September 2021

26 July 2021 –

On 7 September, 13:15-15:00 Vienna Time, the yearly NGO Briefing will take place on the margins of the resumed 12th session of the UNCAC Implementation Review Group (the UNCAC IRG).

During the briefing, the UNCAC secretariat will discuss:

the work of the UNCAC IRG;
the performance of the UNCAC review mechanism,
and the latest UNODC reports on the implementation of UNCAC chapter II (Preventive measures) and chapter V (Asset recovery).

NGOs are encouraged to provide updates, individually or collectively, on their activities and contributions to the implementation of the UNCAC. Find the agenda of the upcoming NGO briefing here.

The briefing will be open to:

relevant NGOs with consultative status with the Economic and Social Council (NGOs with ECOSOC status).
Other relevant NGOs, which have been admitted to participate as observers in the 8th session of the UNCAC CoSP that took place in Abu Dhabi in 2019.

How to confirm your attendance

UNODC has sent out invitations to the above-mentioned categories of NGOs that are eligible to attend the briefing. Please check your inboxes for such an invitation in case you fall under one of these categories.

Qualified organisations need to send the following confirmation to UNODC :

An official letter indicating the representatives of the organization’s delegation who wish to participate in the briefing
- It should include the following information:
  (a) Name(s);
  (b) Title(s);
  (c) Contact details including individual email addresses, which will be used to grant and verify virtual access to the briefing and, for those participating in person, for contact tracing purposes if needed;
  (d) A clear indication of whether the participant(s) will attend in person or online.
  
  The official letter should be sent no later than 27 August 2021 (no additional registrations will be accepted after that date) to the secretariat of the Conference of the Parties, United Nations Office on Drugs and Crime, P.O. Box 500, 1400 Vienna, Austria, fax: +43 1 26060 5848 or an advance scanned copy to the following email address: unodc-ngounit@un.org.
  
  Please note that only scanned copies of official letters will be accepted by email. Participants are advised to regularly consult the website of the resumed twelfth session of the Implementation Review Group for updated information regarding the registration process. The secretariat will continue to monitor the situation related to the COVID-19 pandemic and will provide timely updates with respect to any necessary changes.

The briefing is scheduled to be held in person at the Vienna International Centre, with the possibility of remote participation via Microsoft Teams. One participant of each organisation will be allowed to participate in person; up to three participants per organisation online.

The deadline for the submission of confirmations of attendance as well as of written comments for invited NGOs will be 27 August 2021.

In case you have any questions, please reach out to yonatan.yakir@uncaccoalition.org.