Equivalent value-based measures and their potential

In the global fight against corruption and financial crime, one oft-overlooked legal tool is the use of equivalent value-based (EVB) measures. Unlike asset recovery processes which focus on linking a specified asset to a crime, EVB measures enable authorities to restrain or confiscate any assets of equal value owned by the perpetrator regardless of any link to the criminal act. This is a crucial distinction. In many cases, by the time authorities begin their investigations and start building a case for the link between ill-gotten gains and the crime, the original assets have been laundered, spent, or otherwise concealed, leading to a dead end. EVB measures have the potential to break through this impasse by focusing on value rather than the specific asset.

For example, in a case from Brazil, authorities used EVB measures to recover assets from a criminal organization involved in large-scale tax fraud and money laundering. When the original illicit proceeds had been dissipated or hidden, Brazilian law allowed prosecutors to seize other assets belonging to the defendants—such as real estate, vehicles, and bank balances—up to the value of the criminal gains.[1]

For a comprehensive exploration of the legal, practical, and policy dimensions of EVB measures, and more case examples, see the Stolen Asset Recovery Initiative’s recent publication, From Loss to Gain: Unlocking the Potential of Equivalent Value-Based Measures in Asset Recovery. This report provides in-depth analysis, real-world examples, and actionable recommendations for practitioners and policymakers seeking to strengthen asset recovery frameworks. 

International legal framework and domestic implementation

The international legal framework for EVB measures is robust. The United Nations Convention against Corruption (UNCAC) but also other major treaties, such as the United Nations Convention against Transnational Organized Crime (UNTOC), the Council of Europe’s Warsaw Convention, and several regional agreements provide for both proceeds based and value based confiscation. EVB measures are not just a best practice – they are an international expectation.

Despite this, the practical application of EVB measures varies significantly from country to country. Some jurisdictions treat EVB measures as a subsidiary tool, only to be used when the direct proceeds of crime are unavailable. Others allow for their use as a primary tool, enabling authorities to pursue equivalent value from the outset of an investigation. This split has real-world consequences: where EVB measures are only a fallback, criminals may still find ways to frustrate asset recovery efforts. Where they are a primary tool, authorities have much greater latitude to ensure that illicit wealth is not retained.

Challenges and opportunities

The implementation of EVB measures is not without its challenges. One of the most persistent issue is the lack of consistent terminology. Different countries use different terms for EVB measures, which can lead to confusion and complicate international cooperation. This is particularly problematic when authorities seek mutual legal assistance, as misunderstandings can delay or derail asset recovery efforts.[2] Another challenge lies in the availability and use of provisional measures. Freezing or seizing assets of equivalent value before a final confiscation order is essential to prevent criminals from dissipating their wealth. However, not all countries have domestic legislation that provides for such provisional actions, and even where they exist, they may not always be routinely applied. This lack of application could stem from judicial reluctance, gaps in capacity and awareness, or an absence of streamlined procedures.

Calculating the value to be confiscated also presents difficulties. Authorities must determine the “benefit” derived from the crime which can be complex, especially in cases involving sophisticated financial transactions. There is also debate over whether to pursue the “gross gain” (the total benefit without deductions) or the “net gain” (after deducting legitimate expenses). Most countries lean toward the gross gain approach, but practices are far from uniform.

Although these challenges exist, EVB measures have significant potential for success if supported by focused and coordinated efforts. Countries must fully incorporate international treaty provisions into domestic law, have the option to use EVB measures as a primary tool, ensure the availability of provisional measures, and invest in training, awareness raising, and data collection. As this existing asset recovery tool gains wider notice and adoption, EVB measures will become an even more formidable weapon in the global effort to ensure that crime truly does not pay.