Non-conviction based forfeiture/confiscation
News & Blog
14 Dec 2022
BlogRecovering criminal assets without a criminal conviction – lessons from 10 countries
Asset Recovery
3 Aug 2022
NewsZambia hosts first ICAR training programme on non-conviction based forfeiture
Asset Recovery
8 Jul 2022
NewsLisbon Conference 2022: Lusophone countries come together to expand the asset recovery toolbox
Asset Recovery
24 Jun 2022
NewsNational Convention of Prosecutors in Peru celebrates three years of applying its non-conviction based forfeiture law
Asset Recovery, Public Finance Management
14 Jun 2022
NewsAsset forfeiture laws in Latin America: agreeing a human rights focus and more
Asset Recovery
Publications
[Forthcoming] Working Paper 42: Confiscating assets frozen under sanctions without undermining the rule of law
This paper will be released on 21 February 2023.
Written in the light of Russia’s war of aggression in Ukraine, the Working Paper explores whether it is justifiable to confiscate assets frozen under financial sanctions in order to redirect them to the victims of state aggression.
The paper first explores the concept of sanctions and financial sanctions (asset freezes) and what they mean in practice.
Using the example of Canada, which has introduced a legislative mechanism for this purpose, the paper analyses whether states should be able to confiscate sanctioned assets purely on the basis that they have been sanctioned.
It then looks at more established measures that states could adopt and apply to target sanctioned assets, including:
- Traditional conviction based confiscation measures, including ‘extended confiscation’ mechanisms
- Non-conviction based confiscation (forfeiture) measures
- Unexplained wealth laws
The paper recommends ways to maximise the effectiveness of these alternative avenues for recovering assets, which are much less controversial and can arguably be applied without infringing on legal rights.
Opting for mechanisms that abide by established legal rights will not only significantly increase the chance of recovering assets without subsequent legal challenges. It will also ensure that the very reason for targeting the assets in the first place – namely to seek justice and compensation for acts of aggression – is not undermined through the erosion of the rule of law.
About this Paper
This Working Paper was prepared by the Basel Institute on Governance.
It is part of the Basel Institute on Governance Working Paper Series, ISSN: 2624-9650. You may share or republish the Working Paper under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License (CC BY-NC-ND 4.0).
Suggested citation: Dornbierer, Andrew. 2023. ‘Confiscating assets frozen under sanctions without undermining the rule of law.’ Working Paper 42, Basel Institute on Governance. Available at: baselgovernance.org/publications/wp-42.
Acknowledgements
The Basel Institute would like to thank Isys Lam and the law firms of Bonifassi Avocats (France), Hengeler Mueller (Germany), Bennett Jones (Canada) and Rogério Alves & Associados (Portugal) for their support in providing research for this paper.
The Basel Institute would also like to thank Stefan Lenz, Stefan Cassella, Maria Nizzero, Nicola Bonucci and Oscar Solórzano for their support in reviewing the content of the paper and recommending amendments.
Non-conviction based forfeiture as a tool for asset recovery: Recommendations of the Lisbon Conference, 5 –7 July 2022
This short report summarises key recommendations from the Lisbon Conference on non-conviction based forfeiture (NCBF) as a tool for asset recovery, which took place in Lisbon, Portugal on 5–7 July 2022. The conference gathered high-level representatives from Angola, Cape Verde, Mozambique and Timor-Leste, together with international experts.
The recommendations include:
- Harmonisation of legislation and its proper implementation
- Integrated approach and coordination between institutions
- Speed and autonomy
- International judicial cooperation
- Multidisciplinary approach – creating new mechanisms
- Investment in training
The aim is to guide judicial authorities and law enforcement in applying effective, integrated and coordinated approaches to asset recovery.
The conference took place in the context of the “Supporting stakeholders in adopting non-conviction based forfeiture as a tool for asset recovery” programme, an initiative of the International Centre for Asset Recovery (ICAR) of the Basel Institute on Governance. Funded by the Bureau of International Narcotics and Law Enforcement Affairs (INL) of the US Department of State, the programe explores the potential for innovation in asset recovery through non-conviction based forfeiture (NBCF) mechanisms.
Note: This document is a translation of the original Portuguese post-conference recommendations.
Targeting Profit: Non-Conviction Based Forfeiture in Environmental Crime
Environmental criminals and their corrupt facilitators get rich by destroying our planet and its natural resources. This publication for the Targeting Natural Resource Corruption (TNRC) project explains how and why to confiscate their illicit assets – with or without a criminal conviction.
The introductory overview of asset recovery tools to tackle environmental crime was a collaboration between the Basel Institute’s Green Corruption programme and International Centre for Asset Recovery. It is part of a wider research collaboration between the Basel Institute and the TNRC project consortium.
Takeaways
- Using legal powers to confiscate assets can be an important element of enforcement against environmental crime because it targets the profit motive for environmental crime and disrupts the financing of further criminal activity.
- Confiscating illicit assets does not require an individual to be convicted. Many countries have judicial procedures to confiscate assets derived from criminal activity without the need for a specific criminal conviction.
- This procedure, referred to as non-conviction based forfeiture (NCBF), can be an effective way to target the profits from environmental crimes, where corruption and money laundering are frequently significant components.
- Understanding and applying anti-corruption and anti-money laundering laws in their country is vital for enforcement practitioners to be able to pursue criminals’ assets more effectively. Early coordination with anti-corruption and financial intelligence authorities will assist in this.
- NCBF is no different to the process of criminal investigation and prosecution, in that it depends on the degree to which good governance, strong and accountable institutions, and a well-functioning justice system are present in a country. Prior to engaging NCBF for environmental corruption cases, risks should be assessed in a similar manner to the risks of existing law enforcement and prosecution practices in a given country.
About the TNRC project
The TNRC project seeks to improve biodiversity conservation outcomes by helping practitioners to address the threats posed by corruption to wildlife, fisheries and forests. TNRC harnesses existing knowledge, generates new evidence, and supports innovative policy and practice for more effective anti-corruption programming on the ground.
A USAID-funded project, TNRC is implemented by a consortium of leading organizations in anti-corruption, natural resource management, and conservation: World Wildlife Fund (WWF), the U4 Anti-Corruption Resource Centre at the Chr. Michelsen Institute, TRAFFIC, and the Terrorism, Transnational Crime and Corruption Center (TraCCC) at George Mason University.
Case Study 4: The Russian arms dealer case
This case study explains how the Peruvian State used its non-conviction based forfeiture law, extinción de dominio, to recover a Swiss bank account containing illicit kickbacks paid for the purchase of war planes.
This case was the first of a series of cases between Peru and Switzerland involving Peru’s extinción de dominio law, which enables the confiscation of illicit assets in cases where a criminal conviction of an individual is not possible or desirable. It has paved the way for other proceedings, some of which are still pending in the tribunals.
The case is relatively small in monetary terms – around USD 700,000 plus interest – but hugely significant in terms of asset recovery efforts and international co-operation. The case study shows how the extinción de dominio law was applied with proportionality and in full respect of the rule of law and fundamental human rights.
Open-access licence and acknowledgements
This publication is part of the Basel Institute on Governance Case Study series. It is licensed for sharing under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License (CC BY-NC-ND 4.0).
Suggested citation: Solórzano, Oscar. 2022. “The Russian arms dealer case.” Case Study 4, Basel Institute on Governance. Available at: baselgovernance.org/case-studies.
