World Bank guide to help recover stolen money.
The handbook reveals developing countries lose an estimated $20-40 billion each year through bribery, misappropriation of funds and other corrupt practices. Much of the proceeds of this corruption find "safe havens" in the world's financial centres. These criminal flows are a drain on social services and economic development programmes, contributing to the impoverishment of the world's poorest countries.
Many developing countries have already sought to recover stolen assets. A number of successful high-profile cases with creative international cooperation have demonstrated that asset recovery is possible. However, it is highly complex, involving coordination and collaboration with domestic agencies and ministries in multiple jurisdictions, as well as the capacity to trace and secure assets and pursue various legal options-whether criminal confiscation, non-conviction based confiscation, civil actions, or other alternatives.
This process can be overwhelming for even the most experienced practitioners. It is exceptionally difficult for those working in the context of failed states, widespread corruption, or limited resources. With this in mind, the Stolen Asset Recovery Initiative (SARI) has developed the Asset Recovery Handbook.
The handbook states that immunity from prosecution enables some public officials to avoid prosecution for criminal offenses. In most jurisdictions, immunities incorporated into domestic laws or constitutional provisions are referred to as "national immunities." In addition, there are "international immunities" that apply in all jurisdictions under customary international law and treaties, including functional and personal immunity.
It further states that functional immunity is granted to foreign officials performing acts of state (for example, a head of state or head of government, a senior cabinet member, a foreign minister, and a minister of defence); personal immunity shields some foreign officials (particularly heads of state and diplomatic and consular agents) from arrest and criminal, civil, or administrative proceedings (typically, while in office).
The handbook states that if the asset recovery action concerns a head of state, a member of parliament, a judge, or other high-ranking authority, practitioners must consider the immunities enjoyed by these officials. In particular, practitioners should confirm the extent of the immunity (for example, whether it is national or international, functional or personal; and whether it shields the official from criminal, civil, or administrative liability); the possibility that the immunity can be waived and, if necessary, the opportunity to lodge charges against other individuals implicated in the crimes, including family members, accomplices and those people involved in the laundering of funds.
It also points out that some jurisdictions (countries) have changed immunity laws to allow prosecution, but not actual incarceration of an official. In some cases, a jurisdiction may not recognise the national immunities of another jurisdiction and it may proceed with a prosecution for money laundering or foreign bribery.
Even international immunities have been set aside in cases involving the restraint and seizure of assets held in foreign financial institutions. If the success of criminal proceedings appear to be doubtful, but civil liability can be established, avenues including NCB confiscation and civil proceedings should be explored.
The recovery handbook is a guide for practitioners to assist those grappling with the strategic, organisational, investigative and legal challenges of recovering stolen assets.
A practitioner-led project, the handbook provides common approaches to recovering stolen assets located in foreign jurisdictions, identifies the challenges that practitioners are likely to encounter and introduces good practices. Included are examples of tools that can be used by practitioners, such as sample intelligence reports, applications for court orders and mutual legal assistance requests.
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|Date:||Jun 30, 2016|
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