There is an increase in the international community’s interest in the effectiveness of the current international legal regime for the return of criminal assets.
The return of criminal assets at the international level is governed mainly by framework norms. The United Nations Convention against Transnational Organised Crime (UNTOC) provides the possibility of concluding agreements on the transfer of all or part of the proceeds from crime to the participating states based on the request of another state - party on an ad hoc basis. Although the United Nations Convention against Corruption (UNCAC) although contains clearer prescriptions, does not create a comprehensive international legal system for the return of criminal assets due to its limited scope.
Moreover, the UNCAC provides the requested state with the ability to dispose of property and proceeds from crime, confiscated as a result of international cooperation, in accordance with its domestic legislation, with the exception of income derived from theft or laundering of stolen public funds.
As a result, the West seeks to retain the right to make arbitrary decisions, refusing to return assets to “corrupt” and “undemocratic” regimes. As a result, the share of assets returned from the estimated amount of criminal proceeds remains extremely low.
A review by the Financial Action Task Force (FATF) of national anti-money laundering regimes in 75 jurisdictions showed that only 4% of them achieved a high level of efficiency in assets recovery, 18% achieved a significant level.
The United Nations Office on Drugs and Crime notes that many countries have little experience in providing mutual legal assistance, particularly in the area of assets recovery, and only a small number of countries have practical experience in returning significant amounts of assets.
Substantial difficulties remain in the consideration of requests for mutual legal assistance, which leads to the refusal of the competent foreign authorities to satisfy applications for the seizure of money and property of criminals, the difficulty of investigative actions, the expiration of the deadlines for prosecution.
The Russian Federation pays a great attention to this problem and consistently supports the strengthening of the international legal regime for the return of criminal assets, eliminating existing legal uncertainties and differences, and developing concrete measures to dispose of seized, confiscated and returned assets based on the principles of law and justice. At the suggestion of the Russian side within the framework of the BRICS Anti-Corruption Working Group a substantive discussion is being held on the development of an universal international legal instrument for the return of criminal assets. In our vision, it should develop the provisions of the UNTOC and the UNCAC, and also take into account the best practices of bilateral and multilateral cooperation in this sphere.
At the same time, its action should extend to a wide range of crimes aimed at making profit, and the scope of application should include the identification, freezing, seizure, confiscation, return and disposal of the proceeds derived from committing such acts.
The development of unified provisional measures and confiscation requisitions by the participating states at the national level is considered to be an essential component for the effective functioning of such a tool. This will avoid refusing to return confiscated assets on the basis of the absence of bilateral agreements, for example, on the provision of mutual legal assistance in criminal cases and ultimately guarantee the fair repatriation of criminal assets.
The observed increase in the international community’s interest in the effectiveness of the current international legal regime for the return of criminal assets creates conditions for expanding a number of potential supporters of the Russian initiative.
Thus, in view of the launch of the second cycle of the review of the implementation of the UNCAC, including the provisions of chapter V “Assets Recovery Measures”, there is a lively discussion on this issue at the UN Vienna site. At a high-level meeting in May 2019 in New York on “International Cooperation to Combat Illicit Financial Flows and Strengthen Good Practices on Asset Returns” many countries insisted on defining the international framework for this process. Increasing the effectiveness of the efforts of states to arrest, confiscate and recover criminal assets from abroad has also been identified as one of the directions of the FATF system work for the coming year.
The intensification of our efforts to find like-minded states acquires special significance in the light of the special session of the UN General Assembly against corruption planned for the first half of 2021.
*The Embassy of the Russian Federation in the Republic of Botswana