1.2 Legal Avenues for Achieving Asset Recovery The legal actions for pursuing asset recovery are diverse. They include the following mechanisms: • • • •
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domestic criminal prosecution and confiscation, followed by an MLA request to enforce orders in foreign jurisdictions; NCB confiscation, followed by an MLA request or other forms of international cooperation to enforce orders in foreign jurisdictions; private civil actions, including formal insolvency process; criminal prosecution and confiscation or NCB confiscation initiated by a foreign jurisdiction (requires jurisdiction over an offense and cooperation from the jurisdiction harmed by the corruption offenses); and administrative confiscation.
The availability of these avenues, either domestically or in a foreign jurisdiction, will depend on the laws and regulations in the jurisdictions involved in the investigation, as well as international or bilateral conventions and treaties. Box 1.1 outlines the various laws relevant to practitioners pursuing these avenues. In addition, there are other legal, practical, or operational realities that will influence the avenue selected. Some of these strategic considerations, obstacles, and case management issues are discussed in chapter 2. 1.2.1 Criminal Prosecution and Confiscation When authorities seeking to recover stolen assets decide to pursue a criminal case, criminal confiscation is a possible means of redress. Practitioners must gather evidence, trace and secure assets, conduct a prosecution against an individual or legal entity, and obtain a conviction. After obtaining a conviction, confiscation can be ordered by the court. In some jurisdictions, particularly common law jurisdictions, the standard of proof for confiscation will be lower than the standard required for obtaining the conviction. For example, “balance of probabilities” will be needed for confiscation, whereas “beyond a reasonable doubt” will be required for a conviction. Other jurisdictions apply the same standard to both conviction and confiscation. See figure 2.1 in section 2.6.5 for an explanation of the standards of proof. Generally, unless enhanced confiscation provisions apply, confiscation legislation will provide for confiscation of proceeds and instrumentalities that are directly or indirectly traceable to the crime.18
18. The form and operation of “enhanced confiscation provisions” are discussed in more detail in chapter 6. Enhancements include substitute asset provisions that permit confiscation of assets not connected with a crime if the original proceeds have been lost or dissipated, presumptions about the unlawful use or derivation of assets in certain circumstances, presumptions about the extent of unlawful benefits flowing from certain offenses, and the reversal of the onus and burden of proof in certain circumstances.
Overview of the Asset Recovery Process and Avenues
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