While the UNCAC provisions clearly go beyond the requirements of UNTOC, many jurisdictions allow only for the sharing of confiscated assets, rather than their return, and require an asset-sharing agreement or a government decision to do so, meanwhile retaining certain portions of the amounts confiscated for themselves. Only a very limited number of jurisdictions have the legal authority to return 100 percent of stolen assets in cases relating to UNCAC offenses and directly based on domestic law. Only sovereign jurisdictions may negotiate bilateral asset-sharing agreements. Given the large number of offshore jurisdictions that qualify as crown dependencies or overseas territories, such as the Channel Islands, this requirement severely limits the number of jurisdictions with which assets may be shared and thus constitutes a significant barrier. Another pitfall is that case-by-case sharing agreements tend to be negotiated only after assets have been confiscated. At that point, the requested jurisdiction has possession of or owns the confiscated assets, including in those cases where the confiscation took place at the request of another jurisdiction and on the basis of a foreign confiscation order. Originating jurisdictions may find themselves in a weak negotiating position even after having provided all of the evidence necessary to obtain the confiscation order. Negotiating asset-sharing agreements can be a lengthy process, which may result in considerable delays in the return of assets. In addition, the substantial resources required to negotiate such agreements are often not available to originating jurisdictions. To eliminate this barrier, jurisdictions should enact legislation allowing for the return of confiscated assets in accordance with UNCAC, or directly based on domestic law.
Policy Recommendations a)
For UNCAC offenses, jurisdictions should put in place legislation that allows for the return of all assets confiscated upon foreign request (minus expenses) in accordance with UNCAC Article 57. b) For all other offenses, including those set out in UNTOC, jurisdictions should put in place legislation that allows for direct sharing of assets based on domestic law in the absence of a bilateral asset-sharing agreement. Bilateral sharing agreements setting out how assets are to be disposed of or shared may still be reached on a case-by-case basis.
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Barriers to Asset Recovery
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