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Digest of Asset Recovery Cases

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Digest of Asset Recovery Cases Digest of Asset Recovery Cases UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna DIGEST OF ASSET RECOVERY CASES UNITED NATIONS New York, 2015 © United Nations, August 2015. All rights reserved, worldwide. Information on paths and links to Internet sites contained in the present publication are provided for the convenience of the reader and are correct at the time of issue. The United Nations takes no responsibility for the continued accuracy of that information or for the content of any external website. The designations employed and the presentation of material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concern- ing the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. Requests for permission to reproduce this work are welcomed and should be sent to the Secretariat to the Conference of the States Parties to the United Nations Convention against Corruption. Governments and their institutions may reproduce this work without prior authorization but are requested to mention the source and inform the United Nations of such reproduction. This publication has not been formally edited. Publishing production: English, Publishing and Library Section, United Nations Office at Vienna. ii Acknowledgements This Digest has been developed by the Corruption and Economic Crime Branch of the United Nations Office on Drugs and Crime (UNODC) at the request of the Open-Ended Intergovernmental Working Group on Asset Recovery of the Conference of the States Parties to the United Nations Convention against Corruption. UNODC wishes to thank Michael De Feo for his substantive contribution to the drafting of this Digest. UNODC would like to acknowledge the contributions of the following UNODC staff members for their role in developing and contributing to the Digest: Dorothee Gottwald, Vladimir Kozin, Panagiotis Papadimitriou, Brigitte Strobel-Shaw and Oliver Stolpe. UNODC would also like to thank the following members of the secretariat of the Stolen Asset Recovery Initiative (StAR) for their comments and contributions: Yves Aeschlimann, Elsa Gopala Krishnan, Shervin Majlessi, Ji Won Park, Beata Plonka and Yee Man Yu. The present Digest is the product of a broad participatory process. A group of experts from all geographical regions and representing the various systems of law provided sub- stantive contributions to the first draft. Those international experts* participated at an Expert Group Meeting in Vienna on 2 to 3 April 2012 and also provided subsequent updates: Eugenio Maria Curia, Permanent Mission of Argentina to the International Organizations in Vienna; Luis Fernando Arocena, Anti-Corruption Office, Ministry of Justice and Human Rights (Argentina); Natalia Camba Martins, Office of the Attorney General of the Union, International Department (Brazil); Ana Paula da Cunha, Ministry of Justice (Brazil); Elvis Keaflin Richards, Financial Investigation Unit, Royal Virgin Islands Police Force (British Virgin Islands); Zhang Jian, Department of Treaty and Law, Ministry of Foreign Affairs (China); Mei Fen, Department of Treaty and Law, Ministry of Foreign Affairs (China); Ayman Elgammal, Ministry of Foreign Affairs (Egypt); Charles Moynot, Directorate of Criminal Affairs and Pardons, Ministry of Justice (France); Frederick Raf- fray, Law Officer of the Crown (Guernsey); Muhammad Yusfidli Adhyaksana, Attorney General’s Office (Indonesia); Yitzchak Blum, Department of International Affairs, Office of the State Attorney, Ministry of Justice (Israel); Robert Wallner, Chief Prosecutor (Liech- tenstein); Emmanuel Akomaye, Economic and Financial Crimes Commission (Nigeria); Horatiu Baias, National Anticorruption Directorate (Romania); Alexey Dronov, Permanent Mission of the Russian Federation to the International Organizations in Vienna; Nkululeko Christopher Ndzengu, Asset Forfeiture Unit, National Prosecuting Authority (South Africa); Jack de Kluiver, International Unit, Asset Forfeiture and Money Laundering Sec- tion, Criminal Division, Department of Justice (United States); Teresa Turner-Jones, Department of Justice (United States). UNODC acknowledges with profound gratitude the efforts of all those involved in this process. * The institutions given in the list reflect those of the experts at the time of their participation in the expert group meetings and not necessarily the functions held at the time of publication of this Digest. iii Contents Page Acknowledgements ................................................... iii INTRODUCTION .................................................. 1 I. NOTEWORTHY CASES OF CORRUPTION ....................... 5 A. Typologies of offences established in the Convention .............. 5 B. Bribery of national and foreign public officials and of officials of public international organizations .................................... 6 C. Embezzlement, misappropriation and other diversion of property ...... 7 D. Trading in influence and abuse of function ...................... 9 E. Illicit enrichment .......................................... 9 F. Corruption offences in the private sector ........................ 10 G. Laundering and concealment of proceeds of crime ................ 11 H. Obstruction of justice. 12 I. Liability of legal persons ..................................... 12 J. Summary ................................................ 13 II. FORMS AND DEVICES OF CONCEALMENT OF PROCEEDS OF ACTS OF CORRUPTION ...................................... 15 A. Significance of preventive measures and financial intelligence units ... 15 B. Concealment techniques used to hide corruption proceeds .......... 20 C. Summary ................................................ 23 III. INITIATION OF ASSET RECOVERY CASES ...................... 25 A. Overcoming the obstacles remaining after a corrupt regime .......... 25 B. Domestic anti-corruption efforts ............................... 28 C. The role of the partie civile in asset recovery cases ................. 33 D. The role of the media ...................................... 35 E. Efforts to combat money-laundering ........................... 35 F. Summary ................................................ 37 IV. INTERNATIONAL COOPERATION IN IDENTIFYING, FREEZING OR SEIZING AND TRACING PROCEEDS OF CRIME ............. 39 A. Identification of the proceeds of crime ......................... 39 B. Tracing the proceeds of crime ................................. 40 v Page C. Freezing or seizing the proceeds of crime ........................ 42 D. The role of regional and international practitioners’ networks ........ 53 E. The role of private legal counsel and other asset recovery service providers ............................................ 54 F. Summary ................................................ 56 V. TOOLS AND MECHANISMS FOR RECOVERY AND CONFISCATION OF STOLEN ASSETS .......................................... 57 A. Direct recovery by a civil action .............................. 57 B. Direct recovery by an order for compensation or damages .......... 63 C. Recognizing other States parties’ claims as legitimate owner ......... 66 D. Recovery by execution of a foreign confiscation order .............. 67 E. Recovery by confiscation for money-laundering or other domestic offences ...................................... 69 F. Recovery by non-conviction based confiscation ................... 71 G. Other mechanisms for asset recovery ........................... 72 H. International cooperation procedures for purposes of confiscation .... 76 I. Summary ................................................ 76 VI. RETURN AND DISPOSAL OF ASSETS ........................... 79 A. Progression from discretionary sharing to mandatory return ......... 79 B. Provisions at the bilateral and regional levels ..................... 84 C. Potential areas of controversy in the return and disposal of assets .... 86 D. Agreements on return and disposal of assets ..................... 92 E. Summary ................................................ 95 VII. CONCLUSIONS .............................................. 97 GLOSSARY ........................................................ 99 vi INTRODUCTION 1. This Digest of Asset Recovery Cases provides an analytical study requested by the Open-Ended Intergovernmental Working Group on Asset Recovery1 of the Conference of the States Parties to the United Nations Convention against Corruption. In the context of the Convention, asset recovery means the identification, freeze, seizure and confiscation of illegally derived assets and, where authorized by law, the return of confiscated property to the prior legitimate owner of a confiscated asset or to those victimized by corruption, which in some instances might be a State party. The Digest intends to supplement the various valuable resources available through the United Nations Office on Drugs and Crime (UNODC) Tools and Resources for Anti-Corruption Knowledge (TRACK).2 It provides factual examples of how the mechanisms for asset recovery and international cooperation have been applied and how well they have functioned in actual situations over past decades.3 Methodology 2. The Digest draws on desk research of the case descriptions and other information provided by Member States. Other sources are the publications of the UNODC/World Bank Stolen Asset Recovery (StAR) Initiative, cases in the StAR Initiative’s Stolen Asset Recovery Watch Database and Corruption
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