• explore all legal avenues—including criminal and NCB confiscation, civil actions, a request that a foreign authority initiate proceedings—to determine the most favorable time limitation49; and • consider continuing the investigation because criminal investigations of an offense for which the statute of limitations has expired may lead to the discovery of another offense that is not statute barred. 2.6.4 Legislative Provisions on Asset Return In choosing between foreign and domestic criminal proceedings or other avenues, it is important to consider how this decision will influence the amount of assets to be recovered. Embezzled or laundered public funds recovered pursuant to the United Nations Convention against Corruption must be returned to the requesting jurisdiction.50 In addition, some jurisdictions will return assets where confiscation was the result of the direct enforcement of a foreign order and there is a treaty in place. Assets may also be returned directly to the legitimate owner or jurisdiction harmed by corruption offenses through a court order for damages or compensation. However, if the assets were confiscated outside these parameters—perhaps through a domestic money laundering case conducted by foreign authorities—the amount of return will depend on the sharing agreement in place or the prerogative of the requested jurisdiction.51 Furthermore, foreign proceedings may be limited to money laundering offenses, and that may be a barrier to confiscating the proceeds from predicate or related offenses, particularly in jurisdictions that only confiscate assets linked to the offenses that form the basis of the confiscation (see section 6.2.2 of chapter 6). 2.6.5 Standards of Proof Practitioners must also consider whether the evidence is sufficient to meet the standards of proof required for tracing, provisional measures, confiscation, civil actions, or conviction—both domestically and, where applicable, in foreign jurisdictions. Although the applicable standard will vary among jurisdictions, it is generally true that the more intrusive the investigative technique or measure, the higher the evidentiary standard of proof. 49. In the United States, the statute of limitations for NCB confiscation—unlike the statute of limitations for criminal prosecutions—begins to run from the discovery of the offense giving rise to the confiscation action; it can be suspended if the property is located beyond U.S. borders (Title 19, United States Code, sec. 1621). 50. UNCAC art. 57(3) requires return of assets to the requesting state party in case of embezzlement or laundering of public funds when executed in accordance with the convention. 51. This was one of the factors that influenced Peru’s decision in the Montesinos case to conduct a domestic case to pursue assets in Switzerland. Although it was possible to have Switzerland prosecute parts of the case in Switzerland under drug legislation, asset sharing laws at that time would have allowed only a portion of the funds to be returned to Peru. Following strategy discussions with Switzerland, Peru decided to conduct domestic cases and use MLA and legislative waivers to recover a larger portion of the funds. For additional details, see section 1.3.1 of chapter 1.
32
I
Asset Recovery Handbook