Confiscated asset returns and the United Nations Convention against Corruption
Since the entry into force of the United Nations Convention against Corruption (UNCAC), more States parties have successfully been confiscating proceeds of crime located within their borders. With this success comes the growing challenge of returning these confiscated assets to the countries of origin.
A new publication by the United Nations Office of Drugs and Crime (UNODC), titled Confiscated asset returns and the United Nations Convention against Corruption: A Net for All Fish, analyses the asset return process and highlights how the UNCAC, analyses the asset return process and highlights how the UNCAC addresses the complexities involved and how the legal systems of a diverse group of countries have adapted to them.
The UNCAC introduced asset return requirements which are set forth in article 57. These requirements represent a major innovation for corruption cases with cross-border elements. They also outline, for the first time, an international asset recovery and return scheme.
The new publication shows that article 57 is a multifaceted provision which sets forth a series of asset return obligations of varying degrees for States parties vis-à-vis particular assets once they have been recovered by the host State through confiscation. The paper breaks these varying return obligations into four categories, each delineated by the different asset characteristics, different predicate offence prerequisites, and different processes through which a confiscation has occurred.
To support practitioners faced with asset return cases, the paper also illustrates how actual asset returns are carried out. Patterns are identified by examining how diverse national legal systems interact with the UNCAC to authorize and facilitate cross-border returns to other countries. This can be achieved through use of article 57 itself as affirmative, and sometimes sole, legal authority for such returns, or through domestic laws that give effect to the UNCAC’s varying obligations to achieve asset returns. Understanding these patterns can be useful when analysing the laws of other countries from which asset returns may be sought in future cases.
The publication then applies its combined analysis of article 57, domestic law, and other treaties and agreements to a presentation of sixteen illustrative case examples – involving nine host States and thirteen countries of origin – in which assets have either been returned or return proceedings are ongoing. These case studies showcase the broad range of effectiveness of the UNCAC’s cross-border regime for asset recovery and return and demonstrate that the Convention is indeed “A Net for All Fish”.
Finally, the publication outlines an array of strategic and tactical planning approaches, along with complementary research tools that practitioners in any country may find useful when planning, promoting, and pursuing confiscated asset returns in corruption cases. The planning approaches are presented as a series of detailed questions that a host State, a confiscating State (if not the host) or a State of origin of the assets might wish to take into account when considering initiation of a potential asset return. The suggested research tools are tried and true avenues for answering many of the planning questions in a particular case. They include open online sources and closed sources, both online and in-person, to which requested and requesting UNCAC State party officials are likely to have access to due to their country’s participation in an intergovernmental asset recovery network or a relevant multilateral organization. The publication also includes the texts of five actual asset return agreements as examples.
Overall, the publication aims to advance understanding of the rights, obligations and powers established through collective adoption of the UNCAC’s asset return provisions and to demonstrate the progress made and the potential for future advances in this critical area of the Convention.
 The publication will be available shortly on UNODC’s website in English, with plans to subsequently translate into French and Spanish. It will also be available on the StAR website under ‘External Resources’.