Recovering stolen assets

Abstract

"The United Nations Convention against Corruption (UNCAC) provides the first global framework to address the issue of asset recovery in both developed and developing countries. Chapter V of UNCAC, which covers the recovery of stolen assets, declares that states should take measures in accordance with their national laws to initiate cases to recover ‘property’ that has been acquired through corruption (Article 53(a)).1 Property is broadly defined and includes a range of assets such as money held in bank accounts, stocks and bonds, houses, cars, and ownership of companies and properties.2 Work on asset recovery thus far has focussed on pursuing large-scale cases of political and grand corruption to get back these monies, investments and property. The Stolen Asset Recovery Initiative (StAR), launched by the World Bank and UN Office on Drugs and Crime (UNODC) in 2007, has been one of the leaders in these efforts to stop and recover the ‘thefts of public assets’ by corrupt public officials.3 As the UNCAC Working Group on Asset Recovery noted, however, the scope of asset recovery is not necessarily limited to grand corruption and can also include smaller cases.4 Any asset could be recovered as long as it were derived from one of the corruption offences included in the convention. Yet UNCAC has not completely resolved the issue regarding which assets are the result of corrupt acts. For example, countries that have ratified the convention are not required to pass laws to criminalise some offences included in UNCAC. This loophole opens the door for legal manoeuvring and for countries to refuse to return assets when national laws and international agreements do not match up. It has been particularly an issue of concern for waging cases against public officials who are suspected of corruption based upon a sizable increase in their wealth relative to their income (i.e. illicit enrichment).5 Many developing countries use illicit enrichment as a proxy for charging individuals with receiving bribes or other undue advantages. Pursuing such cases in Europe or the United States is usually impossible, however, as it would require reversing the burden of proof to begin an investigation, an action prohibited under their legal systems.6 As a result, illicit enrichment cases are rarely successful in getting stolen assets back when they are held abroad."