is increasing. Some of them apply it by issuing value-based seizing and confiscation orders instead of property-based orders. Practitioners emphasized that these equivalent-value measures can be very helpful in asset recovery cases because proceeds and instrumentalities of crime are frequently commingled with legitimate assets. Establishing a link between specific property and the criminal offense has proven to be one of the most challenging aspects in asset recovery (see Barrier 13). Policy Recommendations Jurisdictions should introduce legislation to allow for substitute or equivalentvalue asset restraint and confi scation. At a minimum, provisions allowing such measures for commingled property should be put in place, in conformity with UNCAC.
Barrier 15: Lack of a Non-Conviction Based Confiscation Mechanism Practitioners told the study team that the requirement for conviction before stolen assets can be confiscated can impede asset recovery efforts, particularly in corruption cases. While confiscation without a conviction (non-conviction based, or NCB, confiscation) should never be a substitute for criminal prosecution, in many instances, NCB confiscation may be the only way to recover the proceeds of corruption and to exact some measure of justice. Jurisdictions that do not have the ability to confiscate without a conviction are challenged because they lack one of the important tools available to recover stolen assets. NCB confiscation is valuable because the influence of corrupt officials and other practical realities may prevent criminal investigations entirely or delay them until after the official has died or absconded to a jurisdiction that will shelter the official from prosecution. Alternatively, the corrupt official may have immunity from prosecution in certain jurisdictions. Because an NCB confiscation regime is not dependent on a criminal conviction, it can proceed regardless of death, flight, or any immunity the corrupt official might enjoy (see Barrier 17). An increasing number of jurisdictions have adopted legislation permitting confiscation without a conviction,66 and the practice is encouraged in multilateral treaties and by international standard setters.67 NCB confiscation most often takes place in one of two ways. The first is confiscation within the context of criminal proceedings but without the need for a conviction or 66. For a list of jurisdictions and relevant legislation, see Greenberg, Samuel, Grant and Gray, Stolen Asset Recovery: A Good Practices Guide for NCB Asset Forfeiture. Note that several countries (notably in the Caribbean) added NCB forfeiture measures following publication of this book. 67. UNCAC, Article 54(1)(c) requires countries to consider such confiscation without a conviction in cases of death, flight, or absence or in other appropriate cases. Recommendation 3 of the FATF 40+9 recommendations requires countries to consider allowing confiscation without a conviction. FATF has also introduced best practices on NCB confiscation, including recognition of foreign NCB confiscation orders: FATF, Best Practices Paper on Confiscation (R. 3 and 38), adopted by the FATF plenary in February 2010.
66
Book 1.indb 66
I
Barriers to Asset Recovery
5/11/11 4:20:50 PM