Recovery of Assets

1.2.7 Phase 4: Repatriation and recovery of assets

Phase 4 relates to assets which are the product of criminal activity and which are located in foreign jurisdictions. In such cases, the Requesting State (from which the assets were taken) needs to coordinate with the Requested State (in which the assets are located) to ensure their return. The most commonly used method for asset return is through bilateral and multilateral treaties and agreements. Most often, MLA requests are sent to the foreign jurisdiction, using as a legal justification reference to key provisions within the United Nations Convention against Corruption (UNCAC) or the United Nations Convention against Transnational Organised Crime (UNTOC). Bilateral law enforcement cooperation agreements, where they exist between the two States, may also be used, and are encouraged by both the UNTOC and UNCAC.57 Both conventions allow the Requested State to deduct costs related to executing an MLA request only if they are substantial and extraordinary in nature, and only after consultation with the Requesting State,58 although the UNTOC also indicates that the Requested State may deduct “reasonable expenses incurred in investigations, prosecutions or judicial proceedings leading to the return or disposition of confiscated property”.59

The UNCAC allows the Requesting and Requested States to enter into “agreements or mutually acceptable arrangements, on a case-by-case basis, for the final disposal of confiscated property” (e.g., sharing of recovered assets).60 Such ad hoc agreements are encouraged, as a means to incentivise cross-border cooperation. Asset sharing agreements can be used, as in the case of the United States, to encourage joint investigations, often in cases involving drug trafficking and money laundering.61

Nevertheless, cross-border recovery remains among the main delays or inhibitors in the overall asset recovery process. To bring true efficiency to the spirit and intention of the UNTOC and UNCAC in the asset recovery process, all States need to consider a number of practical issues not directly mentioned (or adequately covered) in the conventions. A sampling of these issues would include:

Pre-MLA request informal contact and coordination – this is perhaps by far the issue ignored by many jurisdictions. Many, if not most, MLA requests for seizure, confiscation and repatriation of assets fail, or are significantly delayed, as a result of a lack of cross-border pre-MLA discussions among counterparts about the case and what may be needed in any MLA request;

Knowing who one’s asset recovery counterpart is in a foreign jurisdiction – many countries do not make full use (or even know) of

Asset Recovery Interagency Network (ARIN) contact focal points in foreign jurisdictions – this often results in contacting the wrong person and pursuing legal and operational channels that waste time and result in little success in the seizure, confiscation or return of assets. In some cases, this has also resulted in the transmission of whole case files, rather than summaries, to foreign jurisdictions;