17 September 2021 –
How can we move forward on asset recovery? During a side event on the margins of the resumed 12th 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 9th 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.