Report of the Commonwealth Working Group on Asset Repatriation

AuthorCommonwealth Secretariat
Pages327-396

Page 327

Executive summary
Terms of reference
  1. In pursuance of the mandate in the Aso Rock Declaration the Commonwealth Secretary-General constituted a Working Group on the recovery and repatriation of assets of illicit origin focusing on maximising co-operation and assistance between governments. The Working Group, comprised of experts from eleven Commonwealth governments as well as other independent experts and observers, met on four occasions. They considered and discussed, inter alia:

* the major problems in asset tracking, recovery, and repatriation and best practice in overcoming those problems;

* the key impediments to effective international co-operation in this area and effective ways in which those impediments can be addressed;

* the laws, administrative structures and other mechanisms necessary, in both "victim" and "receiving" states to prevent the movement of assets, and to allow for effective international co-operation in tracing and confiscating the assets;

* taking into account the provisions of the United Nations Convention Against Corruption (UNCAC), in particular Article 57, the laws, administrative structures and other mechanisms necessary to provide for the return of confiscated assets;

* possible amendments to the Commonwealth Scheme for Mutual Assistance in Criminal Matters (the Harare Scheme) to provide for more effective co-operation in this area.

Issues addressed
  1. In approaching its mandate, the Group examined the issues in a chronological manner, much as a case would develop in practice.

Misappropriation of Assets
  1. Measures for co-operation and repatriation cannot be viewed in isolation from the need for all states to put in place a comprehensive regime to combat corruption, with particular emphasis on the establishment of a broad range of preventive measures. The Group recommended that countries be guided by instruments such as the Framework for Commonwealth Principles on Promoting Good Governance and Combating Corruption and Chapter II of the UNCAC in establishing these essential preventive measures. It is also essential to have a comprehensive regime of criminal offence provisions to govern activities that may lead to the misappropriation of funds.

Immunities
  1. It is a fundamental principle that all persons are equal before the law. However in some Commonwealth countries Heads of State and Government and other officials enjoy immunities from criminal prosecution, which can preclude effective prosecution and pursuit of illicit assets in corruption cases. The Group considered that Commonwealth governments should strive for a position where there are no immunities.

Preventing the Movement of Funds
  1. To prevent the movement and concealment of funds, countries need to fully implement the international standards and measures designed to prevent money laundering. This requires not only legislative action but also the adoption of relevant structures and administrative procedures. Particular emphasis is needed on enhanced scrutiny with respect to both foreign and domesticPage 328 politically exposed persons (PEPs). Effective measures should also be adopted to prevent cash smuggling and allow for cash seizures.

Serving Heads of State
  1. Delicate political and practical questions were discussed concerning actions against serving Heads of State where assets believed to be obtained through corruption are located in another state. To the greatest extent possible, existing legislation and procedures for the reporting of suspicious transactions and the sharing of that information should be utilised in such situations. It may also be feasible in some situations for the country in possession of the funds to take domestic measures with reference to those assets. On a broader level the Group recommended that Heads of Government give consideration to an ad hoc Commonwealth peer review mechanism for such situations.

Mechanisms for Asset Confiscation
  1. An effective system for the restraint and confiscation of proceeds of crime is fundamental to allow for the repatriation of assets. There are three different types of confiscation procedure which can be used: conviction based, non-conviction based and ordinary civil litigation. The Report recommends that Commonwealth countries that have not already done so should promptly put in place strong and comprehensive legislation for both conviction and non-conviction based asset confiscation and establish and properly fund agencies dealing with asset confiscation and management.

Tracing and Tracking of Assets
  1. Legislation is of little value unless it can be effectively enforced. In this respect there is a need for training, dedicated resources and co-ordinated efforts to enhance the strength of the relevant investigative agencies. The need for adequate investigative tools and powers was discussed and some effective strategies arising from this discussion are outlined in the Report.

Mutual Legal Assistance - General
  1. There are a myriad of...

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