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The Work of the Commonwealth in facilitating the repatriation of Assets Veronic Wright Legal Adviser Legal and Constitutional Affairs Division Commonwealth.

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Presentation on theme: "The Work of the Commonwealth in facilitating the repatriation of Assets Veronic Wright Legal Adviser Legal and Constitutional Affairs Division Commonwealth."— Presentation transcript:

1 The Work of the Commonwealth in facilitating the repatriation of Assets Veronic Wright Legal Adviser Legal and Constitutional Affairs Division Commonwealth Secretariat Marlborough House London, SW1Y 5HX Tel: (44)

2 Mandate CHOGM 2003 in Abuja Nigeria: We recognize that corruption erodes economic development and corporate governance. We welcome the successful conclusion of the United Nations Convention against Corruption and urge the early signature, ratification and implementation of the Convention by member states. We pledge maximum cooperation and assistance amongst our governments to recover assets of illicit origin and repatriate them to their countries of origin. To this end, we request the Secretary General to establish a Commonwealth Working Group to help advance effective action in this area.We recognize that corruption erodes economic development and corporate governance. We welcome the successful conclusion of the United Nations Convention against Corruption and urge the early signature, ratification and implementation of the Convention by member states. We pledge maximum cooperation and assistance amongst our governments to recover assets of illicit origin and repatriate them to their countries of origin. To this end, we request the Secretary General to establish a Commonwealth Working Group to help advance effective action in this area.

3 The Working Group Group consist of government representatives, experts in the field and representatives of UNODC, IMF, World Bank, TI and IBA. Already 2 meetings have been held and 3 rd to start on 30 th March. Since the Work of Group is still ongoing, I cannot discuss recommendations, but will flag the issues raised and highlight some of the discussions.

4 1.Preventative Measures Measures as part of a holistic anti-corruption regime: –Relevant Issues include: Assets declarations Consideration of adopting the offence of illicit enrichment (the attendant constitutional problems for some countries) Immunities of Heads of State and governments (both foreign and domestic) : –need to curtail in cases of grand corruption? –Should Corruption be ranked amongst crimes such as genocide and crimes against humanity, such that immunities cannot hold?

5 MEASURES (cont.) Preventing the Movement of Funds Need for robust anti-money laundering regimes Politically Exposed Persons (PEPs): –Definition –the role of the Commonwealth to assist in identification –Enhanced scrutiny by FIUs when dealing with PEPs Cash smuggling and the use of customs delcrations, administrative seizure powers etc

6 Serving heads of State By far the most challenging question considered by the group. Issues: –What can one country do when assets are found in its territory/jurisdiction? –To whom should the suspected transaction report be made? –Who/where does it repatriate the assets to? –What about their immunities? –How can robust anti-money laundering regime be effectively applied against the banks or other holder of the assets

7 Mechanism for Asset Confiscation Two types of confiscation considered:- –(1)Criminal Asset confiscation – following a conviction –(2)Civil Asset confiscation – non- conviction based forfeiture regime where the action is in rem brought against the illegal assets. The pros and cons of either regimes and the constitutional issues surrounding the latter.

8 TRACING AND TRACKING ASSETS ISSUES: –Training and experience for investigators –Investigative tools/powers including monitoring powers, interception of communications etc. –Mutual assistance in tracing and tracking and attendant problems of MACM, including delay, lack of understanding of each others legal requirements etc.

9 MUTUAL ASSISTANCE Issues in MA for repatriation: –Availability of MA for civil asset forfeiture –Question of delay in cross-border restraint/confiscation- danger of assets being moved in the interim –Confidentiality of requests –Damages against requested countries where restraint/confiscation wrongly ordered –Dual criminality in cross-border restraint

10 Mutual Assistance (cont) The Commonwealth Scheme on Mutual Assistance in Criminal Matters (the Harare Scheme) –An effective tool for MA amongst Commonwealth countries without need for treaty or other arrangement –Possible ways of enhancing the effectiveness of the Scheme as a tool to assist in asset repatriation

11 RESTRAINT OF ASSETS Delay Timing of the order Damages Management of assets following restraint Access to assets

12 RETURN OF ASSETS Article 57 of UNCAC Delay Requirement for Treaty or Memorandum Conditions on future use of assets once returned Technical assistance in repatriation, including the revision of the Harare Scheme to facilitate return of assets


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