Confiscation and asset recovery
One of the main drivers of criminal activity is the acquisition of profit. It also provides criminals with further resources to continue their illicit activities, in particular within the context of organised criminality, where substantial economic background is essential for the functioning of the criminal network. Ensuring that criminals would not profit of illicit activities is therefore a key issue for the prevention of criminality. It takes away the main motivation for the undertaking of such activities. It is thus fundamental for the disruption of functioning of criminal groups.
An additional aspect of the recovery of proceeds of crime is to ensure that the assets coming from crimes are recovered and reinstalled in the place of origin, therefore ensuring that the victims of crime and the economies from which the assets were taken do not suffer from the economic loss.
Asset recovery initiatives therefore focus on:
- Returning the assets to the victims of the crime;
- In case there are no specific victims (e.g., where the victim is not identifiable or the returning of the assets is not possible for other reasons), such assets should be used to strengthen the system of fight against crime and to assist the victims of criminality through their networks.
For this purpose, asset recovery initiatives are developed in a trans-border manner in order to ensure that countries have adequate frameworks to cooperate and share asset, thus enabling the repatriation of confiscated funds.
A further consideration in this respect is the need to assess the level of proceeds-generating crime, as well as the effectiveness of the systems to combat it. In this context, prioritisation of the application of provisional and confiscation measures, maintenance of statistics thereof and systematic analysis of the information available allows better estimates of levels of criminality, as well as a more targeted formulation of necessary priorities and actions.
The global network has increased its focus on tracing criminal proceeds, with focus on several issues:
- Timely identification of illicit assets (please see in this respect the section on “Financial investigations”);
- Systematic application of provisional measures at early stages of investigations and criminal proceedings;
- Enabling final confiscation of proceeds of crime upon conviction, as well as proposing ways to enable non-conviction based confiscations;
- Effective enforcement of confiscation orders and;
- Ensuring that confiscated assets are used in an adequate manner.
A key element is the consideration of cross-border aspects of the matter. International initiatives have already been on-going for a long time and were introduced in the majority of international agreements envisaging to enhance the combat against crime.
The FATF Recommendations set basic standards which should be observed when putting legislative measures in place for the purposes of confiscation of proceeds of crime, instrumentalities, etc.; the availability of provisional measures; the possibility to cooperate in respect of these issues with foreign jurisdictions, as well as the availability of adequate powers to national authorities, both for the application of the measures at national level, as well as for cooperating in this matter in an international context.
It should be noted that some international instruments go beyond the FATF Standards. For example, the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism CETS No. 198 (Article 3, para. 4) requires its States Parties to adopt measures which would introduce the reversed burden of proof in respect of serious offences, requiring therefore the offender to demonstrate the origin of the alleged proceeds. States Parties are, however, required to implement this provision only to the extent to which it is consistent with the principles of its domestic legal system.
Further actions in relation to confiscation and asset recovery have been developed by the World Bank and UNODC (the StAR Initiative). This issue is designated by the European Union as one of the priorities in the common security policy. Several projects are implemented in this regard.
- StAR Other Report 2013 – Nine Key Principles of Asset Recovery
- FATF Best Practices 2012 – Best Practices on Confiscation (Recommendations 4 and 38) and a Framework for Ongoing Work on Asset Recovery
- FATF Guidance 2012 – Operational Issues Financial Investigations Guidance
- UNODC Guidance 2012 – Manual on International Cooperation for the Purposes of Confiscation of Proceeds of Crime
- Egmont Group Other report 2012 – The Role of FIUs in Fighting Corruption and Recovering Stolen Assets
- StAR Other report 2011 – Barriers to Asset Recovery: An Analysis of the Key Barriers and Recommendations for Action
- StAR Guidance 2011 – Asset Recovery Handbook: A Guide for Practitioners
- StAR Guidance 2009 – Stolen Asset Recovery: Management of Returned Assets: Policy Considerations
- StAR Best Practices 2009 – Stolen Asset Recovery: A Good Practices Guide for Non-Conviction Based Asset Forfeiture