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THE OWNERSHIP OF CONFISCATED PROCEEDS OF CORRUPTION UNDER THE UN CONVENTION AGAINST CORRUPTION
Published online by Cambridge University Press: 23 April 2018
Abstract
Article 51 of the United Nations Convention against Corruption sets forth the return of assets diverted through corruption as a fundamental principle of the Convention. This raises the question of whether the State where the stolen assets are located is entitled to refuse their repatriation or subject it to certain conditions. This article analyses the Convention and the policy considerations behind it and argues that such a State has a wider discretion over the return of stolen assets than is often thought. Furthermore, the article argues that the rule of law may be better served if States take vigorous action to confiscate the proceeds of corruption regardless of whether they are ultimately repatriated.
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- Copyright © British Institute of International and Comparative Law 2018
References
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4 BOTA Foundation, ‘The BOTA Foundation: Final Summative Report’ (12 February 2015). The establishment of BOTA Foundation results from the prosecution of an American businessman James Giffen for alleged bribery in Kazakhstan under the Foreign Corrupt Practices Act 1977. See US v Giffen, 473 F3d 30 (2nd Cir 8 December 2006); JA Oduor et al., Left out of the Bargain: Settlements in Foreign Bribery Cases and Implications for Asset Recovery (Stolen Asset Recovery Initiative 2014) 125–8; Cooley, A and Heathershaw, J, Dictators without Borders: Power and Money in Central Asia (Yale University Press 2017) 75–6Google Scholar. After Switzerland froze the US$84 million that Giffen had allegedly paid as a bribe into a Kazakh official's Swiss bank account, the money was used to establish the BOTA Foundation. See US v Approximately $84 Million on Deposit in Account No T-94025 in the Name of the Treasury of the Ministry of Finance of the Republic of Kazakhstan, Case No 2:07-cv-03559 (SDNY 3 May 2007) Verified Complaint.
5 The UNCAC speaks interchangeably of assets and property, eg art 51 refers to the ‘return of assets’ while art 53(a) speaks of ‘title to or ownership of property acquired through the commission of an offence’. The present article uses these terms interchangeably. It also occasionally speaks of ‘money’ or ‘funds’ in recognition of the fact that the return of illiquid forms of wealth, such as real estate, is normally effected by selling it and repatriating the proceeds. The terms ‘return’ and ‘repatriation’ are also used interchangeably.
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8 I Nechepurenko, ‘Uzbekistan Reveals That Ex-Leader's Daughter Is in Custody’ New York Times (28 July 2017). See also the Executive Order 13818: Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption, 82 Federal Register 60839 (26 December 2017) adopted on the basis of the Global Magnitsky Human Rights Accountability Act, Public Law 114-328, Subtitle F, 130 Stat 2000 (2016).
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16 Art 57(3) UNCAC.
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19 ibid.
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28 2225 UNTS 209.
29 FATF, International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation: The FATF Recommendations (October 2002, updated June 2017). See also Chaikin and Sharman (n 15) 18.
30 See also art 12(1) UNCTOC (couched in almost identical language) and Recommendation 4 of the FATF Recommendations (n 29). In the EU, the law on confiscation has been harmonized by Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union.
31 FCPA 15 USC section 78dd-1(b) ff. On the history of the FCPA, see M Koehler, ‘The Story of the Foreign Corrupt Practices Act’ (2012) 73 OhioStLJ 929.
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34 US v Castle, 925 F2d 831 (5th Cir 1991).
35 Examples include the confiscation by the US of the bribes paid by James Giffen in Kazakhstan (n 4) and the ongoing civil proceedings arising out of VimpelCom's and TeliaSonera's bribery in Uzbekistan (n 6).
36 Alldridge (n 24) 2.
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42 R v Ibori [2013] EWCA Crim 815, [2014] 1 Cr App Rep (S) 73.
43 House of Commons, Public Accounts Committee, ‘Written Evidence from the Crown Prosecution Service, Home Office and the National Crime Agency’ (27 January 2014).
44 Report of the Conference of the States Parties to the United Nations Convention against Corruption on its seventh session, held in Vienna from 6 to 10 November 2017 UN Doc CAC/COSP/2017/14 (23 November 2017) 4–5.
45 Guidelines for Efficient Recovery of Stolen Assets <https://guidelines.assetrecovery.org/guidelines>.
46 For a first-hand overview, see M Perdriel-Vaissière, ‘France's Biens Mal Acquis Affair: Lessons from a Decade of Legal Struggle’ (Open Society Foundations: Legal Remedies for Grand Corruption, May 2017). See also Daniel, T and Maton, J, ‘Is the UNCAC an Effective Deterrent to Grand Corruption?’ in Horder, J and Alldridge, P (eds), Modern Bribery Law: Comparative Perspectives (Cambridge University Press 2013) 323–6Google Scholar.
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48 ibid, paras 88–96.
49 ibid, paras 47–50.
50 ‘Equatorial Guinea: President's Son Convicted of Laundering Millions’ Human Rights Watch (29 October 2017).
51 S Pouget and K Hurwitz, ‘French Court Convicts Equatorial Guinean Vice President Teodorin Obiang for Laundering Grand Corruption Proceeds’ Global Anticorruption Blog (30 October 2017) <https://globalanticorruptionblog.com/2017/10/30/french-court-convicts-equatorial-guinean-vice-president-teodorin-obiang-for-laundering-grand-corruption-proceeds/>.
52 ibid; ‘Equatorial Guinea: President's Son Convicted of Laundering Millions’ (n 50).
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56 K Scannell, ‘Corruption: Moving Money out of Purgatory’ Financial Times (5 July 2016).
57 Ad Hoc Committee for the Negotiation of a Convention against Corruption, ‘Interpretative Notes for the Official Records (Travaux Préparatoires) of the Negotiation of the United Nations Convention against Corruption’ UN Doc A/58/422/Add.1 (7 October 2003) para 69.
58 Oduor et al. (n 4) 73.
59 ibid 97–9.
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64 The numbering changed in the course of the negotiations as some of the articles were deleted.
65 UNODC, Travaux Préparatoires of the Negotiations for the Elaboration of the United Nations Convention against Corruption (2010) 499–501, A/AC.261/IPM/4.
66 Report of the Ad Hoc Committee for the Negotiation of a Convention against Corruption on its Sixth Session, Held in Vienna from 21 July to 8 August 2003 UN Doc A/AC.261/22 (22 August 2003) 6.
67 ibid 500–1, A/AC.261/IPM/13.
68 ibid 501–2, A/AC.261/IPM/19.
69 ibid 505, fn 10.
70 ibid 506–7, A/AC.261/11.
71 ibid 507.
72 ibid 512–13, A/AC.261/L.229.
73 ibid 508, fn 12.
74 ibid 508, fn 17.
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84 Art 2.
85 Arts 8–9.
86 Sharman (n 21) 109; Neue Zürcher Zeitung, ‘Nationalrat schwächt «Lex Ben Ali» ab’ (10 June 2015).
87 The original text is available at <https://www.admin.ch/opc/de/classified-compilation/20131214/index.html>.
88 Arts XV and XIV and arts 16, 18 and 19 respectively.
89 Art 3(1).
90 FATF, Best Practices on Confiscation (Recommendations 4 and 38) and a Framework for Ongoing Work on Asset Recovery (October 2012) para 5; Report of the 7th Conference of the UNCAC States Parties (n 44) 5.
91 Art 2 of the Draft Model Bilateral Agreement on Disposal of Confiscated Proceeds of Crime (Proposal submitted by the US, 26–28 January 2005) <http://www.unodc.org/pdf/crime/ieg_crime_2005-01-26_draft_model_agr_01.pdf>.
92 ECOSOC Resolution 2005/14: Model bilateral Agreement on the Sharing of Confiscated Proceeds of Crime or Property Covered by the United Nations Convention against Transnational Organized Crime and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988 (22 July 2005).
93 Global Affairs Canada, Agreement between the Government of Canada and the Government of the People's Republic of China Regarding Sharing and Return of Forfeited Assets <http://www.treaty-accord.gc.ca/details.aspx?id=105505>.
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96 US Department of State, ‘Treaties in Force’ (1 January 2017) <https://www.state.gov/documents/organization/273494.pdf> 82.
97 For an overview of the pronouncements of English courts to that effect, see Alldridge (n 24) 45–8.
98 Ivory (n 77) 221; Chaikin and Sharman (n 15) 18.
99 Sharman (n 21) 196.
100 ibid 194–9; D Batty, ‘Make Profit Motive an Ally in Corruption Fight, Says Offshore Expert’ The Guardian (2 June 2016).
101 Art 57(3)(c) UNCAC.
102 See Koehler, ‘The FCPA Story’ (n 31) 934–5.
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105 Cassin (n 20).
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108 SFO v Rolls Royce Plc QB (17 January 2017). This is the third UK DPA after they were introduced by Schedule 17 to the Crime and Courts Act 2013. The first one was SFO v Standard Bank Plc HC (30 November 2015). The identity of the company involved in the second DPA is currently undisclosed.
109 OECD, Foreign Bribery Report: An Analysis of the Crime of Bribery of Foreign Public Officials (2004) 31.
110 Oduor et al. (n 4) 53–5.
111 E Shirbon, ‘‘‘In It until You Die”: Convicted Nigerian Politician Signals Comeback’ Reuters (31 January 2017).
112 A comparison between corruption-related asset recovery and the liquidator's efforts to recoup the property of a bankrupt company is made in Daniel, T and Maton, J, ‘Civil Proceedings to Recover Corruptly Acquired Assets of Public Officials’ in Pieth, M (ed), Recovering Stolen Assets (Peter Lang 2008) 253Google Scholar.
113 UN High Commissioner for Human Rights, Comprehensive Study on the Negative Impact of the Non-Repatriation of Funds of Illicit Origin to the Countries of Origin on the Enjoyment of Human Rights, in Particular Economic, Social and Cultural Rights UN Doc A/HRC/19/42 (14 December 2011); Working Paper of the Special Rapporteur, Ms Christy Mbonu, E/CN.4/Sub.2/2003/18 (14 May 2003); Preliminary Report of the Special Rapporteur, Ms Christy Mbonu, E/CN.4/Sub.2/2004/23 (7 July 2004); Progress Report of the Special Rapporteur, Ms Christy Mbonu, E/CN.4/Sub.2/2005/18 (22 June 2005); and Second Progress Report of the Special Rapporteur, Ms Christy Mbonu, A/HRC/11/CRP.1 (18 May 2009).
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115 M Stephenson, ‘Standing Doctrine and Anticorruption Litigation: A Survey’ (Open Society Foundations: Legal Remedies for Grand Corruption, January 2016). A paper prepared by the UNODC in October 2017 discussed compensation to victims of corruption in principle but did not examine how victims are or should be defined. See UNODC, Effective Management and Disposal of Seized and Confiscated Assets (October 2017) 38–41.
116 M Vlasic, ‘A President's Legal Legacy: Stolen Asset Recovery and the Rule of Law for All’ Diplomatic Courier (30 January 2013).
117 That being said, a note prepared in 2017 by the Secretariat of the Conference of UNCAC States Parties mentions criminal complaints by NGOs in the context of a discussion of the concept of victims of corruption. See Conference of the States Parties to the United Nations Convention against Corruption, ‘Good Practices in Identifying the Victims of Corruption and Parameters for Their Compensation: Note by the Secretariat’ UN Doc CAC/COSP/2017/11 (31 August 2017) 7.
118 ibid 5.
119 Report of the 7th Conference of the UNCAC States Parties (n 44) 8.
120 R Messick, ‘Civil Society on Returning Stolen Assets to Highly Corrupt Governments’ Global Anticorruption Blog (15 February 2017) <https://globalanticorruptionblog.com/2017/02/15/to-experts-attending-february-14-16-meeting-on-managing-disposing-of-stolen-assets/>. The UNCAC Coalition further made several statements on the subject during the 2017 Conference of UNCAC States Parties. See ‘Recovery of Damages and Compensation for Victims of Corruption: UNCAC Coalition statement to the 7th Conference of States Parties in Vienna’ UN Doc CAC/COSP/2017/NGO/7 (20 October 2017); ‘Towards a Comprehensive, Effective, Transparent and Accountable Implementation of UNCAC Chapter V: UNCAC Coalition statement to the 7th Conference of States Parties in Vienna’ UN Doc CAC/COSP/2017/NGO/2 (20 October 2017).
121 Global Forum on Asset Recovery Communiqué (4–6 December 2017).