Andrew Dornbierer
Head, Policy and Research ICAR
Andrew Dornbierer is Head of Policy and Research at the Basel Institute’s International Centre for Asset Recovery (ICAR). He was promoted to the position in March 2025, having previously served as Senior Specialist, Asset Recovery.
Since joining the Basel Institute in 2012, Andrew has worked extensively on financial investigation strategies, illicit enrichment-focused case strategies, and international cooperation in corruption and money laundering investigations.
He is a recognised international expert on illicit enrichment (unexplained wealth) legislation and the author of the 2021 book *Illicit Enrichment: A Guide to Laws Targeting Unexplained Wealth*, published in open-access format in English, French and Spanish.
Andrew is also a Certified Fraud Examiner, having completed the Association of Certified Fraud Examiners exams in 2023.
Andrew was admitted as a lawyer of the Supreme Court of Western Australia in 2012 and has lived and worked both in Switzerland and in Tanzania, where he provided hands-on mentoring to practitioners at the country’s primary anti-corruption agency.
Publications
Back in action: How the UK is reviving unexplained wealth orders (The Academy Bulletin)
In an article published in the Fall 2025 issue of the Bulletin of the International Academy of Financial Crime Litigators, Andrew Dornbierer explores the revival of unexplained wealth orders (UWOs) in the United Kingdom.
Introduced in 2017 as a tool to combat the abuse of UK’s markets to launder criminal proceeds, the UWO mechanism suffered a severe setback in 2020. After only a handful of attempts to use it, a decision by the High Court effectively left it sprawled on the canvas.
In the last year or so, however, the mechanism has slowly started to prove itself. Most recently, the UK’s Serious Fraud Office – in its first use of the UK’s UWO mechanism – secured GBP 1.1 million from the sale of a property belonging to the ex-wife of a convicted fraudster.
This article offers a short history of UWOs in the UK. It examines how, after a turbulent start and subsequent amendments to the mechanism, UWOs are now back to being used by UK authorities to tackle illicit financial flows. If applied responsibly, proportionately and in harmony with established legal rights, unexplained wealth orders promise to be a powerful tool in the UK’s fight to recover criminal assets.
This is the fifth issue of The Academy’s Bulletin. It has been established to transmit the work of Academy Fellows, draw attention to matters of importance to the legal community and provide high-level analysis of cutting-edge issues in global financial crime investigations and litigation. The Basel Institute on Governance acts as Secretariat to the Academy.
Working Paper 59: Using corrupt proceeds to fight corruption: Rethinking how Switzerland uses illicit profits from foreign bribery
Only a handful of states have been actively pursuing the enforcement of foreign bribery. Switzerland is one of them and its efforts to crack down on this offence is commendable.
Between 2011 and 2024, Switzerland issued 14 final judicial orders at a federal level against Swiss-linked companies that engaged in foreign bribery. In these proceedings, the companies were ordered to hand over approximately CHF 730 million (combined) in illicit profits that they had obtained through their foreign bribery schemes, and an additional CHF 30 million in fines.
This paper contends that Switzerland could further leverage this success to reinforce its status as a world anti-corruption leader. It examines how Switzerland could repurpose the illicit profits obtained from companies in foreign bribery cases to benefit the countries and people most affected by these corrupt acts and to enhance global anti-corruption efforts.
It outlines arguments as to why Switzerland should consider legislative action to enable the sharing of these profits in this way and the potential methodology for doing so.
About this Working Paper
This paper is published as part of the Basel Institute on Governance Working Paper series, ISSN: 2624-9650. You may share or republish it under a Creative Commons BY-NC-ND 4.0 International Licence.
This is a publication of the International Centre for Asset Recovery (ICAR) at the Basel Institute on Governance. ICAR receives core funding from the Governments of Jersey, Liechtenstein, Norway, Switzerland and the UK.
The contents are the sole responsibility of the author and do not necessarily reflect the official position of the Basel Institute on Governance, its donors and partners, or the University of Basel.
Suggested citation: Dornbierer, Andrew. 2025. ‘Using corrupt proceeds to fight corruption: Rethinking how Switzerland uses illicit profits from foreign bribery.’ Working Paper 59, Basel Institute on Governance. Available at: baselgovernance.org/publications/wp-59.
Policy Brief 15: Rethinking how Switzerland uses illicit profits from foreign bribery settlements
Only a handful of states have been actively pursuing the enforcement of foreign bribery. Switzerland is one of them and its efforts to crack down on this offence is commendable.
Between 2011 and 2024, Switzerland issued 14 final judicial orders at a federal level against Swiss-linked companies that engaged in foreign bribery. In these proceedings, the companies were ordered to hand over approximately CHF 730 million (combined) in illicit profits that they had obtained through their foreign bribery schemes, and an additional CHF 30 million in fines.
This Policy Brief contends that Switzerland could further leverage this success to reinforce its status as a world anti-corruption leader. It examines how Switzerland could repurpose the illicit profits obtained from companies in foreign bribery cases to benefit the countries and people most affected by these corrupt acts and to enhance global anti-corruption efforts.
It outlines arguments as to why Switzerland should consider legislative action to enable the sharing of these profits in this way and the potential methodology for doing so.
About this Policy Brief
This publication is part of the Basel Institute on Governance Policy Brief series, ISSN 2624-9669. You may freely share or republish it under a Creative Commons BY-NC-ND 4.0 licence.
Suggested citation: Dornbierer, Andrew. 2025. ‘Rethinking how Switzerland uses illicit profits from foreign bribery settlements.’ Policy Brief 15, Basel Institute on Governance. Available at: baselgovernance.org/publications/pb-15.
This Policy Brief is based on the executive summary of the Working Paper 59: ‘Using corrupt proceeds to fight corruption: Rethinking how Switzerland uses illicit profits from foreign bribery.’ Available at: baselgovernance.org/publications/wp-59.
This is a publication of the International Centre for Asset Recovery (ICAR) at the Basel Institute on Governance. ICAR receives core funding from the Governments of Jersey, Liechtenstein, Norway, Switzerland and the UK.
Policy Brief 14: Cibler la fortune inexpliquée : Implications de la Directive de l’UE de 2024 relative au recouvrement d'avoirs
La Directive de l’Union européenne de 2024 relative au recouvrement et à la confiscation d’avoirs oblige les États membres, entre autres, à adopter des mesures législatives pour permettre la confiscation de la « fortune inexpliquée ».
Cette Note de politique examine l’article 16 de la Directive qui énonce cette obligation, ainsi que les pouvoirs et restrictions que les États membres devront inclure dans les mesures relatives à la « fortune inexpliquée » pour garantir la conformité à la Directive.
En bref, cela démontre la grande flexibilité accordée par le texte de la Directive aux États membres pour déterminer le champ d’application de leurs propres mesures en matière de fortune inexpliquée. Au minimum, les États seront requis d’introduire des mesures susceptibles d’être utilisées pour cibler la fortune inexpliquée liée au crime organisé.
Cependant, les États membres peuvent toujours décider d’introduire des mesures de plus grande portée ciblant la fortune inexpliquée liée à toutes les activités criminelles, y compris la corruption.
À propos de cette Note de politique
La présente publication fait partie de la série de Notes de politique (Policy Briefs) du Basel Institute on Governance, ISSN 2624-9669. Elle est sous licence Creative Commons Attribution BY-NC-ND 4.0 Licence internationale.
Citation proposée : Dornbierer, Andrew. 2024. « Cibler la fortune inexpliquée : Implications de la Directive de l’UE de 2024 relative au recouvrement d’avoirs. » Note de politique 14, Basel Institute on Governance. Disponible sur: baselgovernance.org/pb-14-fr.
Il s’agit d’une publication de l’International Centre for Asset Recovery (ICAR) au Basel Institute on Governance. ICAR reçoit un financement principal des gouvernements de Jersey, du Liechtenstein, de la Norvège, de la Suisse et du Royaume-Uni.
Policy Brief 14: Targeting unexplained wealth: Implications of the EU’s 2024 Directive on asset recovery
The European Union’s 2024 Directive on Asset Recovery and Confiscation obliges Member States to, among other things, introduce legislative measures to enable the confiscation of “unexplained wealth”.
This policy paper examines this Article and the powers and restrictions that Member States will need to include in such “unexplained wealth” measures to ensure compliance with the Directive.
In brief, the Directive gives legislators in EU Member States flexibility to decide the scope of their own unexplained wealth measures. At a minimum, they must introduce measures that can be used to target unexplained wealth linked to organised crime.
Member States could, however, adopt broader measures target unexplained wealth relating to all criminal activity, including corruption.
About this Policy Brief
This publication is part of the Basel Institute on Governance Policy Brief series, ISSN 2624-9669.
You may freely share or republish it under a Creative Commons BY-NC-ND 4.0 licence. Suggested citation: Dornbierer, Andrew. 2024. ‘Targeting unexplained wealth: Implications of the EU’s 2024 Directive on asset recovery.’ Policy Brief 14, Basel Institute on Governance. Available at: baselgovernance.org/pb-14.
This is a publication of the International Centre for Asset Recovery (ICAR) at the Basel Institute on Governance. ICAR receives core funding from the Governments of Jersey, Liechtenstein, Norway, Switzerland and the UK.
Quick Guide 31: The disposal and sharing of confiscated assets
Asset recovery is a critical tool in the fight against corruption and organised crime. But what happens after assets have been confiscated? How can they be most effectively repurposed, in order to contribute to sustainable and equitable development?
This Quick Guide examines the various approaches that states take along these lines – how they allocate recovered funds towards general government spending, redirect assets towards public interest causes or repatriate assets to their country of origin.
It is drawn from a comparative study of good practices in asset recovery legislation in selected Organization for Security and Co-operation in Europe (OSCE) participating States, published as Working Paper 51 in March 2024 by the Basel Institute on Governance and OSCE.
About this Quick Guide
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. It is part of the Basel Institute on Governance Quick Guide series, ISSN 2673-5229.
Quick Guide 30: Asset recovery legislation
Asset recovery tools are integral to combatting corruption, organised crime, sanctions evasion and other profit-motivated crimes. However, in many states, the range of asset recovery tools available to law enforcement and criminal justice agencies is limited.
This quick guide examines the established good practices in asset recovery legislation as well as less conventional, broader measures. It shows how states can widen their asset recovery toolkit and increase the potential for asset recovery success.
It is drawn from a comparative study of good practices in asset recovery legislation in selected Organization for Security and Co-operation in Europe (OSCE) participating States, published as Working Paper 51 in March 2024 by the Basel Institute on Governance and OSCE.
About this Quick Guide
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. It is part of the Basel Institute on Governance Quick Guide series, ISSN 2673-5229.
Working Paper 51: Good practices in asset recovery legislation in selected OSCE participating States
Asset recovery tools are integral to combating corruption, organised crime, sanctions evasion and other profit-motivated crimes. However, in many participating States of the OSCE, the range of asset recovery tools available to law enforcement and criminal justice agencies is limited.
This Working Paper identifies legislative mechanisms in OSCE participating States that empower the state to confiscate suspected or proven proceeds of crime. The overall objective is to ascertain:
- Established good practices with regard to the design of these legislative mechanisms.
- Any unique approaches that particular countries have taken in this context that could be replicated and tested in other jurisdictions.
It covers:
- Conviction-based asset recovery mechanisms.
- Non-conviction based mechanisms including civil recovery.
- Additional mechanisms such as illicit enrichment laws and other laws that reverse the burden of proof regarding the legitimacy of assets.
- Considerations regarding the adoption of broader asset recovery laws.
- Approaches to the disposal of confiscated assets.
- Common challenges in the implementation of asset recovery mechanisms.
About this report
This comparative study was conducted and drafted by the International Centre for Asset Recovery at the Basel Institute on Governance for the Organization for Security and Co-operation in Europe (OSCE). The paper was commissioned under the extra-budgetary project ‘Strengthening asset recovery efforts in the OSCE region’ implemented by the OSCE Secretariat’s Transnational Threats Department and the Office of the Co-ordinator of OSCE Economic and Environmental Activities.
It is published as part of the Basel Institute on Governance Working Paper series, ISSN: 2624-9650. You may share or republish it under a Creative Commons CC BY-NC-ND 4.0 licence.
Disclaimer
This Working Paper is intended for general informational purposes and does not constitute and/or substitute legal or other professional advice. The contents are the sole responsibility of the author and do not necessarily reflect the views and the official position of the Basel Institute on Governance, the OSCE and its participating States.
Quick Guide 29: Money laundering and sanctions evasion using the art market
The art market is often described as ‘niche’. In reality, it is a significant trade industry: sales of art and antiques by dealers and auction houses reached an estimated USD 65.1 billion in 2021. And like many industries of this size, it attracts people seeking to abuse it to launder proceeds of crime or evade sanctions.
This quick guide briefly explains the unique characteristics of the art market that make it vulnerable to this type of abuse. It also outlines steps that jurisdictions can take to prevent and combat abuse of the sector for illicit purposes.
About this Quick Guide
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License. It is part of the Basel Institute on Governance Quick Guide series, ISSN 2673-5229.
Working Paper 42: From sanctions to confiscation while upholding 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.
News and blog
Holding the corrupt to account: the promise and potential of corruption sanctions
When states fail to hold corrupt actors to account, ordinary citizens pay the price. Corruption sanctions were born from the idea that no one should be above the law, no matter where they are in the world. In a new Working Paper, Dr Anton Moiseienko explores how these tools have evolved and offers recommendations for their more effective and legitimate use. Here we share the foreword to his paper by the Basel Institute's Andrew Dornbierer, Head of Policy and Research, International Centre for Asset Recovery. Foreword Every state has an obligation to investigate and prosecute corruption within their jurisdiction. Unfortunately, many states around the world are not willing to fulfil this responsibility. As a result, the very individuals within these states tasked with serving the public interest are instead given free rein to commit acts that not only serve themselves but also corrode the fabric of the state. And ordinary citizens have no alternative but to endure the ensuing economic and social damage. The development of sanctions tools targeting corruption stemmed from the idea that justice should be universal; that no one in any society around the world should be above the law. They are powerful tools, built on powerful principles. States introducing them understand that unchecked corruption will always suffocate a state’s ability to provide security, fairness and prosperity to its citizens. Comparatively though, corruption sanctions are still an underdeveloped concept and are far from perfect. Only a handful of states have introduced them, and those that have are not often using them to their full potential. They also spark valid concerns surrounding due process. These criticisms shouldn’t be ignored: they offer an insight on how these tools could be further developed and enhanced to ensure that they are more credibly and consistently applied. In his paper, Anton Moiseienko provides an excellent and well-researched overview of how corruption sanctions could be designed and employed to better achieve their potential. He explains how these tools have evolved over the last two decades and how they could be further refined to be more effective and achieve a wider range of impact. Critically, his paper is an indispensable resource for those looking to understand exactly how such sanctions can help states deter, disrupt and debilitate the notoriously corrupt that are unreachable through standard criminal justice tools. Learn more Read Dr Anton Moiseienko’s Working Paper “Corruption sanctions: What governments need to know” for a deeper analysis of the topic and key policy recommendations. Get a brief introduction to corruption sanctions from our related Quick Guide. Register for our public webinar "Corruption sanctions – reaching those beyond the law" on 18 June 2026, marking the launch of Dr Moiseienko's Working Paper.
Aid cuts make asset recovery even more crucial
State parties to the UN Convention Against Corruption are already obligated to identify, confiscate and return proceeds of corruption and money laundering that have entered their financial systems. As this often includes money stolen from states receiving development aid, maximising efforts to fulfil this obligation could offset some of the worst effects of recent aid cuts. Aid cuts are hitting the most vulnerable Countries across the globe have drastically cut their aid budgets in the last few months. The US government’s decision to pause and then terminate almost all of its USAID-funded projects is certainly the most significant illustration of this, but it is not an isolated example. Last month, the UK decided to significantly cut its overseas aid budget to fund an increase in defence spending. Similarly, France is looking to decrease its foreign aid by 37 percent, while Switzerland's international development budget is also being squeezed. Countries including Belgium, Germany, the Netherlands and Sweden have all made comparable announcements. The damage to vulnerable communities caused by global cuts to aid is already presenting itself. In Ethiopia, food assistance has halted for more than a million people. From May, charity groups will be forced to stop treating tens of thousands of malnourished children in the Democratic Republic of the Congo. The predicted long-term effects of these cuts are also alarming. The World Health Organization recently stated that the US funding cuts could cause three million HIV-related deaths alone. This post is not intended to comment on whether the decision to reduce foreign aid is moral or even politically prudent. Instead it argues that countries that cut foreign aid should, at the very least, better fulfil existing international obligations that would help mitigate the negative impacts of these cuts. An increased responsibility to recover stolen assets One such action that countries can take is to maximise their efforts to identify, confiscate and repatriate the proceeds of corruption that have been stolen from aid-dependant countries and placed within their own financial systems. Credible statistics on the total proceeds of corruption are impossible to find. But even the most conservative attempts to gauge the amount of proceeds concealed within global financial centres measure the amount in units of billions, if not significantly more. Considering that: These corrupt proceeds are often sitting in the financial systems of states that are currently cutting aid budgets; A good portion of these proceeds have been stolen from aid-dependant countries; and These proceeds lawfully belong to such aid-dependant countries; Then there is a very strong argument that “financial centre” states now have an exponentially heightened responsibility to identify and return such stolen funds. Every state that has signed the UN Convention Against Corruption has already committed to doing this. Now more than ever, they need to follow through. Returned stolen assets could address critical needs While any returned funds will not make up for the total amount of aid that has been cut, the impact that they could have is potentially enormous. In the last three years, for example, Switzerland has repatriated USD 313 million in illicit proceeds to Uzbekistan via a specifically designed UN fund. These funds are more than twice the total amount of aid Switzerland has granted to Uzbekistan in the last three decades and have already been put towards efforts to reduce maternal and infant mortality and to finance education programmes. Even the return of much smaller amounts of illicit proceeds can have a significant impact addressing urgent needs. In 2022, GBP 3 million in corrupt funds concealed in Jersey were repatriated to Kenya and put towards the country’s emergency response to Covid-19. These are just a couple of cases. There are countless more yet to be identified globally that would involve similar sums. Challenging but achievable Of course, finding, confiscating and returning corrupt proceeds is a difficult task and will take time and effort. It may also require cooperation from agencies in aid-dependant countries in some cases. But this is all achievable. The process has been successfully navigated many times before, often leading to the mutual benefit of both countries involved. On the one hand, countries with financial centres are able to fulfil international commitments to purge their jurisdictions of corrupt proceeds. And on the other hand, aid-dependant countries have funds returned that can then be utilised for their populations. With some support and technical assistance, these countries are even often empowered to navigate these processes again on their own initiative to pursue additional funds that have been stolen and placed in further jurisdictions. At the very least, if states cutting aid redouble their efforts to facilitate the return of such funds, it will allow aid-dependant countries to use them to address some of their most pressing needs in the current difficult environment. While this may not completely cover the immense financial shortfalls these vulnerable countries are currently facing, it would certainly provide some critical funds to communities where every drop in the bucket counts. Related reading Good practices in asset recovery legislation in selected OSCE participating States, Working Paper 51 by Andrew Dornbierer Compensating the victims of foreign bribery: UK legislation, practice and recommended reforms, Working Paper 55 by Sam Hickey Smarter use of confiscated assets would multiply their impact, by Simon Marsh
The EU’s anti-corruption directive enters a critical juncture
Given the increasing headwinds against global anti-corruption efforts blowing out of the United States in recent weeks, the EU’s commencement of trilogue negotiations regarding its proposed Directive on combating corruption has gone largely unnoticed. With the US recently indicating its retreat from the global fight against corruption however, by freezing enforcement of the Foreign Corrupt Practices Act and dissolving its kleptocracy units amongst other things , the stakes surrounding these negotiations have somewhat risen. Several key issues are due to be discussed in these negotiations that may significantly impact the EU’s ability to tackle corruption for years to come. In the face of these cross-Atlantic headwinds, the finalisation of this Directive is an opportunity for the EU to assert itself as the vanguard in the fight against corruption. Background: What is the proposed Directive? As outlined in the draft itself and an accompanying statement, the EU’s proposed Directive represents a push to “modernise” its existing anti-corruption legal framework. Specifically, it seeks to better equip EU Member States to tackle an “evolution of corruption threats” by: bringing in stronger rules of accountability for the public sector e.g. regarding conflict of interest ; “harmonising” corruption offences and sanctions across the EU; and enhancing investigation and prosecution capabilities. To date, in accordance with EU procedure, the European Commission has put forward their proposed text for the Directive. In response, the European Parliament and European Council have provided amended versions. The three bodies have now entered into negotiations to agree on a final text. Issues that have been largely agreed so far Based on synergies between the three versions, the Directive will likely require Member States to introduce a number of corruption offences in their national laws if they haven’t already done so . These include domestic bribery, both in the public and private sectors, foreign bribery, misappropriation, trading in influence, abuse of functions and obstruction of justice. The proposed Directive will also require Member States to establish a harmonised, proportionate and dissuasive set of sanctions for these offences. The intention is that this will set a base level for anti-corruption offences across the EU to ensure similar anti-corruption standards are applied in all Member States. Ideally, this will also boost the capacity of EU agencies to investigate and prosecute cross-border cases. Notably, the proposed Directive will require Member States to introduce criminal liability for legal persons i.e. companies for all the offences set out in the Directive. This liability will also apply to situations where a lack of supervision by a person holding a leadership position in an entity resulted in the commission of an offence. The Directive will also obligate Member States to impose a minimum level of sanctions on legal persons in this context that would include fines based on the legal person’s worldwide turnover. Such liability laws have proven successful in countries that actively target foreign bribery e.g. the United Kingdom and Switzerland and would significantly reinforce EU efforts to target similar offending. Moreover, with respect to ensuring accountability, it is likely that Member States will be required to ensure that the immunity of public officials can be lifted through a clear, impartial and transparent legal process. Additional issues to be negotiated While the bulk of the Directive has largely taken shape, the European Parliament has proposed the inclusion of several provisions that will undoubtedly be debated during negotiations. In our view, these provisions could significantly strengthen the EU’s overall ability to counter corruption and warrant serious consideration. For example, the Parliament has proposed that the Directive also addresses the risks that illicit political financing poses to democracies. It has recommended including transparency obligations regarding political party funding as well as a new criminal provision addressing illicit political financing. These changes would help reinforce the integrity of electoral processes throughout the EU. The Parliament has also recommended introducing an obligation that Member States establish effective and transparent processes for non-trial resolutions that can be used to resolve corruption cases involving legal persons. Such non-trial resolutions have proven critical to resolving complex foreign bribery cases worldwide. The United Kingdom has had a significant amount of success using mechanisms in this way. Ironically, so too has the United States. The development of these tools amongst EU Member States would undoubtedly better equip them to tackle similarly complex cases. Additionally, the Parliament has recommended several key amendments aimed at enhancing the rights of victims and affected communities. The amendments introduce the notions of “public concerned” and “victim” and afford both groups a number of procedural rights, including the right of victims to claim compensation. Victims are often forgotten in the resolution of corruption cases. These new amendments, if included, would represent an important step towards enhancing their ability to be heard and potentially seek reparations. They would also strengthen civil society participation in anti-corruption efforts. Why does this matter? The adoption of this Directive is an opportunity for the EU and its Member States to implement a harmonised, comprehensive and enforceable anti-corruption framework that will bolster efforts to target corruption both in domestic and cross-border cases. It also represents an opportunity to tackle issues that have hampered these efforts in the past, and to bring in new, practical avenues to achieve better results. New rules for the lifting of immunities may finally address some of the challenges authorities face when investigating public officials. The inclusion of liability for legal persons will ensure a wider range of corrupt activities can be targeted and sanctioned in a dissuasive manner. And the enhancement of non-trial resolution frameworks will present a transparent and efficient alternative to trial proceedings. Finally, the Directive provides a window to achieving a higher level of justice in corruption cases. Recognising that corruption is not a victimless crime and allowing victims and civil society to participate in proceedings is a key acknowledgment of their role in the fight against corruption. Furthermore, establishing rights for victims will close the gap on their standing in corruption cases and pave the way for effective compensation. The global anti-corruption fight is entering an undoubtedly uncertain era. The outcome of the negotiations on these key issues is a defining moment and will reveal how willing the EU is to take the lead to navigate these tumultuous times.
Three reasons to target assets linked to corruption – speech at the 2024 Cambridge Symposium on Economic Crime
Leading voices in the field of countering economic crime came together at the 2024 Cambridge International Symposium on Economic Crime to discuss this year’s theme: “suspect assets”. The very first session of the Symposium sought to answer a key question from the outset: Why attack assets in the first place? Among the presenters was the Basel Institute’s Andrew Dornbierer, Senior Specialist in Asset Recovery. He spoke in place of the Institute’s late Managing Director Gretta Fenner, who had been slated to deliver a speech before her untimely passing in April. The following is based on Andrew’s presentation, which focused on the importance of targeting assets in corruption cases. 1\. A matter of justice There are three basic reasons why attacking assets should be a priority for policy makers and law enforcement agencies in the context of corruption. The first, obvious and overarching reason is: because it’s just. It’s just to deprive corrupt actors of all the benefits of their corruption. We live in societies that are based on the fair application of laws to all. Under no circumstances should anyone be permitted to benefit in any way from any illicit activity, especially corruption. Allowing criminals to retain these proceeds – even in cases where they are caught and jailed – means that they are still benefiting from acting outside of the law. This is not just and it undermines the rule of law. Achieving asset recovery makes sure that this does not happen. 2\. Preventing and deterring future corruption The second reason is that if we attack and recover the benefits of corruption, it will prevent and deter future corruption. If you enforce a strong policy of asset recovery and manage to consistently strip criminals of the benefits of their crimes, then you will enhance the risk – or at least the perception of risk – that a future criminal will not be able to financially benefit from their potential future crime. In the corruption context in particular, this will remove the key motivation for committing offences in the first place: personal gain. By making it clear to potential corrupt actors that if they are caught, they won’t just go to jail, but will also lose all the proceeds of their crime, then this will logically force many potential criminals to think twice about engaging in this type of activity. 3\. Repurposing recovered assets for the common good A third key reason for attacking assets is that, if we are successful, the recovered money can be put to good use. Outside the context of corruption, Scotland provides a good example for this: Criminal assets recovered under the Proceeds of Crime Act are repurposed under the Scottish Government programme CashBack for Communities. This programme devotes the money to community initiatives to improve the quality of life of young people, including those at risk of turning to crime as a way of life. Around GBP 130 million in recovered funds have been committed to these causes since 2008. Moving back into the context of corruption, the Basel Institute was involved in a case where corrupt funds worth USD 3.7 million originally from Kenya were successfully recovered and repatriated from Jersey. This money was specifically put towards purchasing essential medical equipment for Kenyans and funding Kenya’s Covid-19 response – a much better destination for these funds than a corrupt individual’s bank account. Generally speaking, the proceeds of corruption offences are assets that belong to the public. Consequently, asset recovery allows these assets to be returned to the public and to be used for the public interest. Asset recovery in corruption cases The three arguments for targeting assets outlined above could of course be applied to most categories of financial crimes. We could argue though that it is more important to achieve asset recovery in the context of corruption. The reason for this is that corruption generally causes a wider level of harm to society compared to other crimes – regardless of whether it is petty corruption, where a police officer asks for a 10-dollar bribe to rip up a speeding ticket, or grand corruption, where a Minister misappropriates millions of dollars. All corruption harms our entire society in some way. It erodes trust in public institutions, it hinders development and it degrades public services. And that is why it is absolutely vital to attack and recover assets in all corruption cases. Learn more Through our International Centre for Asset Recovery ICAR , we help partner countries to build long-term capability to investigate corruption and recover illicit funds. Working with government partner across four continents, ICAR experts provide specialised training, hands-on mentoring on live cases, and guidance on strengthening anti-corruption and asset recovery laws, policies and institutions. We use ICAR’s hands-on experience and geographic reach to advocate for technical improvements to global asset recovery systems, including through important fora like the Cambridge International Symposium on Economic Crime. ICAR benefits from core funding from the governments of Jersey, Liechtenstein, Norway, Switzerland and the UK.
FCPA Blog: How seizing sanctioned assets can strengthen the rule of law
This blog was originally published on the FCPA Blog, which was discontinued in February 2024. Hundreds of billions of dollars of Russian assets sit frozen in bank accounts, buildings, and harbors, thanks to the unprecedented financial sanctions rolled out since the full-scale invasion of Ukraine on February 2022. Understandably, states holding large quantities of Russian assets are under political pressure to permanently seize these and redirect the money to support Ukraine. But political pressure and rule of law are different things, and permanently seizing those assets is not as easy as some make it sound. Hence the debate that is currently raging: should states be able to confiscate those assets purely on the basis that they have been sanctioned? A dangerous path Our recent working paper From Sanctions to Confiscation While Upholding the Rule of Law examines this debate in depth. It considers the justifiability and legality of new legislative mechanisms that allow a state to permanently seize an asset purely because its holder is under sanction. Canada has already included such a mechanism in its Special Economic Measures Act , though it is yet to be tested in court. In brief, our analysis concludes that any mechanisms used to confiscate assets need to be in line with the rule of law. They must respect established legal rights and afford due process. If they do not, states open themselves up to legal challenges and the possibility of having confiscation orders overturned after years of wrangling in higher courts. A better way The good news is that most states already have established pathways to target assets that are frozen under sanctions. In the working paper, we highlight how both criminal and civil non-conviction-based forfeiture mechanisms can be used to target assets where they can be linked to offenses such as sanctions violations, money laundering, or organized crime. The U.S. has long used civil forfeiture mechanisms to confiscate assets where it can be demonstrated to a civil standard of proof that the assets were derived from or used in criminal activity. Such mechanisms do not require a criminal conviction before they can be applied. This makes them a powerful option to target the assets of kleptocrats adept at sidestepping criminal prosecutions. Another option to seize financially sanctioned assets would be unexplained wealth or illicit enrichment legislation. Since such laws reverse the burden of proof onto a person to demonstrate the lawful sources of their assets, states would not need to acquire evidence of criminal activity from potentially uncooperative jurisdictions. Not all countries, however, have non-conviction-based forfeiture or unexplained wealth mechanisms. Where they do, their scope varies widely, and international cooperation is a challenge. Introducing, applying, and cooperating in the context of these laws would go a long way to targeting those frozen assets. Strengthening systems Beyond maximizing the toolkit to target assets frozen under sanctions, states can also make smaller but necessary adjustments to maximize the potential of their laws. These may include broadening the scope of relevant terms such as “property” or “money laundering” or ensuring that non-conviction-based forfeiture mechanisms apply to the widest possible definition of “unlawful conduct.” As the U.S. has done, states may also need to amend laws governing the end use of seized assets to permit them to be redirected to the victims of aggression rather than returned to the aggressor state from which they were stolen. Beyond legislation, states could improve domestic and international coordination by establishing specialist law enforcement task forces such as the U.S. Task Force KleptoCapture and the Russian Elites, Proxies, and Oligarchs Task Force. And as anti-corruption advocates have argued for many years, allocating adequate resources to these efforts so that they can actually be effective is fundamental. Bolstering defenses against kleptocracy Strengthening and applying established asset recovery mechanisms will not only increase the chances of successfully seizing assets in the long run. It will also uphold the rule of law that the Ukrainians are fighting for. Beyond that, concerted efforts to strengthen asset recovery mechanisms and cooperation will aid in the broader fight against corruption and related financial crimes. Corruption is a national security issue and a global security imperative. Stopping corruption is key to stopping kleptocracies from gaining illegitimate power and influence – and, as we have sadly seen, using that to launch illegal wars and to corrupt the rules-based order.
Working Paper sheds fresh light on the sanctions and confiscation debate
As the war in Ukraine intensifies, calls are growing for states to confiscate Russian assets frozen under sanctions and redirect them to provide support to Ukraine. Our latest Working Paper argues that states can and should do this by enhancing the effectiveness and scope of established asset recovery measures – not by introducing new untested mechanisms that risk inviting future legal challenges, defeating the purpose of sanctions and violating the rule of law. Go straight to Working Paper 42: From sanctions to confiscation while upholding the rule of law or read the key takeaways: Executive summary In light of recent world events, political leaders around the world have questioned whether it is justifiable to confiscate assets frozen under financial sanctions in order to redirect them to the victims of state aggression. Some states have even sought to introduce legislative mechanisms to make it possible to confiscate an asset frozen under sanctions, purely on the basis that the asset has been made subject to a sanction. One state – Canada – has already done so. The intention behind these mechanisms is clear: assets frozen under sanctions could be confiscated and repurposed to provide assistance and compensation to the victims of the sanctioned target. In the context of the Ukraine war, for example, proponents argue that these measures will allow states to permanently confiscate Russian-linked assets under sanction and redirect them to provide support to Ukraine. The debate Should states be able to confiscate sanctioned assets\ purely on the basis that they have been sanctioned? The justifiability and legality of mechanisms such as Canada’s is currently the subject of debate. Two key issues include whether the confiscation of assets in such circumstances: is acceptable in the context of established legal rights and norms; defeats the primary purpose of sanctions as a tool of coercion. Issues of property and due process rights With regards to the first point, the lack of adequate judicial oversight included in such mechanisms, and the fact that these mechanisms aim to permanently deprive sanctioned targets of their assets, raises serious questions surrounding property and due process rights. If such a mechanism was introduced in Europe for example, it is likely to be challenged on the grounds that it violates Protocol 1 Article 1 as well as Article 6 of the European Convention on Human Rights. If such mechanisms were also applied to state-linked assets such as sanctioned assets belonging to central banks then this would also raise concerns regarding a possible infringement of domestic and international laws relating to state immunity. Undermining the purpose of sanctions With regards to the second point, permitting the confiscation of sanctioned assets arguably annuls the coercive purpose of sanctions regimes to act as a tool to persuade targets to cease their adverse behaviour. If states are permitted to confiscate sanctioned assets and make it impossible for a target to retrieve their frozen assets then this effectively removes any incentive for the target to change their behaviour. In such cases, rather than operating as tools of coercion, sanctions would instead primarily operate to punish a target and provide compensation to the victims for the harm that has been caused. Of course, some have argued that there is a greater need for these latter objectives, particularly in the context of the war in Ukraine where financial assistance is required urgently. Others however argue that despite the urgency this situation presents, the long-term objective of sanctions should remain coercion, particularly if sanctioning states wish to compel the aggressing state, Russia, to contribute to post-war reconstruction efforts in the future. Other options through which to confiscate assets under sanction There are, in addition, several established avenues for seeking war reparations that should also be explored. Such established measures that states could adopt and apply to target sanctioned assets include: Traditional conviction-based confiscation measures, including ‘extended confiscation’ mechanisms Non-conviction based confiscation NCB measures Unexplained wealth laws These measures could be used to target: Assets that are involved in sanctions violations Sanctioned assets that are also the proceeds of crimes unrelated to the sanctions regime, such as corruption or organised crime offences Unexplained wealth Maximising effectiveness of established asset recovery mechanisms While these avenues may be limited, and can only result in the permanent confiscation of a portion of sanctioned assets, states could take various steps to maximise their effectiveness. For example legislative amendments could be considered to broaden the scope of relevant terms like ‘money laundering’ and to specifically permit confiscated assets to be redirected to the victims of state aggression. Domestic and international coordination could be improved by creating dedicated law enforcement bodies for example, or through participating in international coordination initiatives. Importantly, these avenues target established criminal activity and/or include defined judicial processes through which a targeted person can challenge any attempts to confiscate their property. Therefore they can be applied without unacceptably infringing on legal rights. Moreover, if states take measures to enhance the effectiveness and scope of established asset recovery measures, additional benefits can be derived for the broader fight against financial crime and kleptocracy. The bottom line: maintaining the rule of law 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. \ The term ‘sanctioned assets’ is used as a shorthand to refer to assets of a sanctioned person or country. Learn more Download the Working Paper. Watch or read the main takeaways from a December 2022 panel discussion on asset recovery developments since the start of the war in Ukraine.
Targeting unexplained wealth in British Columbia and beyond – new analysis
“Money laundering is a significant problem requiring strong and decisive action,” concluded Honourable Austin F. Cullen in the final report of his widely discussed Commission of Inquiry into Money Laundering in British Columbia in June 2022 . Despite the billions of dollars of illicit funds estimated to be laundered in British Columbia alone each year, the Commission’s final report found that the “value of assets seized through the asset forfeiture system in British Columbia is shockingly low.” The “failure to vigorously pursue these assets”, the report says, is “a missed opportunity to disrupt and deter the activities of organized crime groups and others involved in serious criminality.” The Report outlines 101 recommendations to reduce the amount of illicit funds flowing into British Columbia, and to more effectively seize those that do. The 101st of these outlines that the Province should: …proceed with its plan to develop an unexplained wealth order regime in British Columbia. The Commission recommends the UK’s controversial unexplained wealth order UWO as a model. If implemented, this mechanism would empower the British Columbian Civil Forfeiture Office to seek court orders that obligate a person to provide information on how they legally acquired assets suspected of being connected to criminal activity. If the person fails to comply with the order, a presumption would be made in a separate civil recovery action that the assets are criminal proceeds – potentially subjecting them to forfeiture – despite the fact that no one has been convicted of a crime. What would a UWO mean for British Columbia? As part of a collaboration between the Basel Institute on Governance and the Vancouver Anti-Corruption Institute, we have developed a Working Paper that analyses the feasibility of Recommendation 101. How would a UK-style UWO support efforts to investigate financial crimes and recover illicit proceeds in British Columbia – or indeed in the rest of Canada? Would this mechanism be too powerful, or not powerful enough? What models from other countries could also be emulated? And what constitutional and charter factors should legislators consider to ensure the UWO has the best chance of success? Our Working Paper explores these issues, and brings in examples from the UK and other jurisdictions that have implemented some form of unexplained wealth mechanism to date. In brief, we are doubtful that a carbon copy of the original UK UWO would result in the identification and recovery of substantial amounts of illicit funds in British Columbia, particularly given the limited success of the UK’s mechanism so far. To bolster the chances of success however, lawmakers could adapt certain elements of this model to the British Columbian context, and also consider adopting elements from other legislative models present in Australian and Ireland. … and beyond? Additionally, due to the fact that money can be laundered with ease across both provincial and international borders, we believe policy makers should couple any British Columbian initiatives to counter money laundering with wider-reaching initiatives, particularly those recommended by the Commission. Enhancing dialogue between Canada’s provinces would, for example, help to develop more consistent and coordinated approaches to both UWOs and civil forfeiture mechanisms more generally. At the federal level, it would be useful to explore the feasibility of introducing illicit wealth provisions in the criminal law, to bring the country into line with international anti-corruption treaties, or to include UWO provisions into existing legislation such as the Special Economic Measures Act or the Magnitsky Act. The findings of the Commission are clear. British Columbia – and Canada – need tools and powers to help uphold the rule of law and prevent the detrimental impacts of organised crime and money laundering on citizens. As stated in the report, “…there can be few things more destructive to a community’s sense of well-being than a governing regime that fails to resist those whose opportunities are unfairly gained at the expense of others.” It is therefore essential that government take decisive action to counter this, including through the introduction of new and stronger mechanisms to target proceeds of crime. More Download the Working Paper. The collaboration was facilitated by the International Academy of Financial Crime Litigators, an independent, non-partisan global centre that shapes and advances financial crime litigation practices for the future. The Academy’s co-founder Lincoln Caylor, Partner at Canadian law firm Bennett Jones, has written the foreword. Andrew Dornbierer’s open-access book Illicit Enrichment: A Guide to Laws Targeting Unexplained Wealth , was published in open-access format in 2021 by the Basel Institute on Governance and is available in English, French and Spanish. See illicitenrichment.baselgovernance.org or order the paperback via Amazon at cost price.
The UK’s Unexplained Wealth Order: certainly much improved, but going after dirty money remains difficult
The United Kingdom’s Economic Crime Transparency and Enforcement Act received Royal Assent on 15 March 2022. This long-promised legislation was brought forward in the context of the war in Ukraine and expedited through Parliament, signalling the UK government’s declared intent to boost the powers of law enforcement agencies to target domestically located proceeds of crime that may have a connection to Putin and his inner circle. Aside from amendments made to the UK sanctions regime which are intended to enable the UK to impose sanctions against oligarchs already designated by other States and improving powers of sanctions enforcement, the Act has broader application against dirty money in the United Kingdom. It introduces a Register of Overseas Entities in relation to property and amends the Unexplained Wealth Order investigatory powers under the Proceeds of Crime Act 2002. This note focuses on the amendments to the unexplained wealth order regime. As the UK government explains in this fact sheet, An unexplained wealth order UWO is an investigatory order placed on a respondent whose assets appear disproportionate to their income to explain the origins of their wealth. An Unexplained Wealth Order UWO requires a person who is a Politically Exposed Person PEP or reasonably suspected of involvement in, or of being connected to a person involved in, serious crime to explain the origin of assets minimum combined value of £50,000 that appear to be disproportionate to their known lawfully obtained income. ...A UWO is not by itself a power to recover assets. However, any response from a UWO can be used in subsequent civil recovery proceedings. A little-used power Despite the great expectations which accompanied the introduction of UWOs in 2018, they appear to have been little used. Of the five agencies with the power to apply for UWOs, only the National Crime Agency NCA has utilised this investigatory power, so far in only four cases. And even in these cases, the exercise of the powers has met with patchy success, with one UWO application being successfully challenged – leading to a reported costs order against the NCA of GBP 1.5 million. Key amendments The amendments to the Act are intended to improve the effectiveness of the UWO regime as follows: “Responsible officers” The amendments introduce “responsible officers” as a new category of people who can receive a UWO. This new provision can apply where the respondent to an UWO is not an individual, but instead for example a company. In these cases, the UWO can include the name of an individual – the “responsible officer” – who must provide the necessary information. It is anticipated that “responsible officers” will be directors, partners or managers of companies. The intended aim of this provision is to enable enforcement authorities to obtain information in cases involving complex corporate structures that have been used to hide the owner of certain assets. Broader scope of application They broaden the situations in which a UWO can be sought to include cases where there are reasonable grounds for suspecting “that the property has been obtained through unlawful conduct.” Before this amendment, the Court had to be be satisfied that “there are reasonable grounds for suspecting that the known sources of the respondent's lawfully obtained income would have been insufficient for the purposes of enabling the respondent to obtain the property.” This has proven difficult when property was held in complex corporate structures, as enforcement authorities struggled to establish evidence of income of the owners of the property. The amendment helps with this as it is intended to allow an application for a UWO to be made when it can be shown that the property was bought with dirty money. Extended review period Where property is subject to an interim freezing order, the law is amended to enable law enforcement agencies to apply for an extension by up to 126 days of the period of time available to review material provided under a UWO and determine whether or not to seek further asset recovery action. Protection against legal costs The amendments also aim to protect the agencies from incurring substantial legal costs in cases relating to UWOs, providing they have acted reasonably. Will they work? While the reforms will no doubt remove some of the hesitancies that have prevented enforcement authorities from seeking UWOs in the past – particularly by removing the risk of the state facing hefty legal bills in the event of failure – the jury on whether the amendments go far enough is still out. Even the UK Government’s factsheet on the proposed reforms was non-committal as to the extent to which these laws will actually encourage law enforcement agencies to actively seek more UWOs. How the UK law differs from other unexplained wealth order mechanisms When the UWO’s were first introduced in the UK, there was a widespread misconception that the order itself would enable the confiscation of assets. However, this was never the case as the UK’s UWO is an investigatory power. It does not, of itself, provide a mechanism for the actual recovery of assets. Assets can only be recovered when evidence obtained under an UWO is used to support a separate civil recovery procedure under the Proceeds of Crime Act, where the Court has to determine whether specific property has been derived from unlawful criminal conduct. The UK’s unexplained wealth mechanism differs therefore from similarly named unexplained wealth-focused mechanisms that exist around the world. These typically act as a power to identify potentially unexplainable assets and also allow for their confiscation or for a civil payment order to be made for their value against the relevant person without the need to demonstrate that the assets are derived from criminal activity. As such, while the recent amendments clearly improve the UK’s mechanism, they do not change the fact that the recovery of stolen assets still depends on a separate legal procedure and a requirement that courts be satisfied that the property in question is, more likely than not, derived from crime. While this is not wrong in itself, it is also not wrong to suggest that on top of the latest amendments, the UK could also consider additional unexplained wealth-focused mechanisms, for example like those that exist in several other common law jurisdictions and that simply require the court to be satisfied that certain assets do not have a lawful explanation before potentially confiscating them. Such tools could give the UK enforcement authorities yet another avenue to go after the dirty money that has been plaguing the London financial centre for too long. Learn more Find more information on these types of mechanisms in Illicit Enrichment: A Guide to Laws Targeting Unexplained Wealth, an open-access book published in 2021 by the Basel Institute through its International Centre for Asset Recovery ICAR , with research support from the NYU School of Law. Written by Senior Asset Recovery Specialist Andrew Dornbierer, the book provides a comprehensive guide to illicit enrichment laws and their application to target unexplained wealth and recover proceeds of corruption and other crimes. It covers both criminal and civil-based laws from around the world, and is accompanied by a database of illicit enrichment/unexplained wealth legislation in 103 jurisdictions and guidance for investigators and prosecutors on conducting source and application analysis to prove such cases in court. Illicit Enrichment has recently been made available in Spanish. A French translation of the introduction and part 1 are already available here; a full version will be released in mid-2022.
Andrew Dornbierer’s quick guide to illicit enrichment (updated)
This quick guide offers a short introduction to illicit enrichment laws, which are emerging as a powerful tool to combat corruption and recover stolen assets. It was updated in June 2021 following the Basel Institute’s publication of an open-access book on Illicit Enrichment: a Guide to Laws Targeting Unexplained Wealth by Andrew Dornbierer. Freely available online along with a database of laws around the world, the book provides clear descriptions and practical guidance on different approaches to targeting unexplainable increases in wealth, how to establish cases in court, and common legal challenges to illicit enrichment laws. What is illicit enrichment in a nutshell? The definition of illicit enrichment can vary enormously from jurisdiction to jurisdiction. At the international level, the United Nations Convention Against Corruption UNCAC defines illicit enrichment as a “significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income”. At a State level, however, the scope of illicit enrichment laws can differ somewhat from the UNCAC article. For instance, some laws cover private individuals as well as public officials. Some definitions take into account excessive standards of living in addition to disproportionate assets. Many States don’t even use the term “illicit enrichment”. Instead they refer to the acquisition of “unexplained wealth” or “unexplained property”, or use other terms such as “unjust enrichment” or “illegal gains”. Based on extensive analysis of international instruments, domestic laws, and jurisprudence from around the world for the book Illicit Enrichment: a Guide to Laws Targeting Unexplained Wealth, illicit enrichment can arguably be defined in a general sense as: "The enjoyment of an amount of wealth that is not justified through reference to lawful income." Why are illicit enrichment laws useful in anti-corruption efforts? In the context of asset recovery mechanisms, illicit enrichment laws are quite unique as they do not require proof of a separate or underlying criminal activity before a judicial sanction can be imposed. Instead, courts only need to be satisfied that illicit enrichment has taken place – i.e. that a person has enjoyed some sort of wealth that has not been justified by their lawful sources of income. These laws can be particularly useful in the context of corruption investigations. In many cases, especially in cash economies and where small amounts of bribes are paid over time, it is almost impossible to prove every individual act of corruption. This means many corrupt officials are rarely prosecuted and get to keep the assets that they have acquired through their corruption. By using illicit enrichment laws, investigators and prosecutors can still pursue corrupt officials in such situations if they are able to at least identify the results of their corrupt acts, such as a disproportionate purchase of expensive property or other high-value assets despite their modest legal income. Is it a crime? While Article 20 of the UNCAC recommends that countries should criminalise illicit enrichment, legislative approaches to the concept vary wildly. Some countries have no laws. Some have illicit enrichment offences targeting public officials, such as in Mexico or Mongolia, while some have offences covering all individuals, such as Rwanda. In other countries, such as Kenya or Mauritius, the illicit enrichment law is not a criminal offence but is in the form of a civil action. This means that the primary aim of an action under the law in these countries is not to prosecute the individual who has illicitly enriched themselves but simply to recover the stolen assets. The level of enforcement also varies. In Hong Kong, for example, there were already successful cases leading to asset recovery back in the 1970s. In Tanzania, the courts are only just starting to adjudicate the first illicit enrichment prosecutions. Why is there some controversy? Some critics argue that illicit enrichment laws violate established legal rights by unfairly reversing the burden of proof and removing a presumption of innocence. Similarly, there are some fears that illicit enrichment laws may violate an individual’s right to silence and privilege against self-incrimination, two well-established legal principles that aim to guarantee fair judicial proceedings. An additional debate revolves around the principle against retroactive application, i.e. that a person should not be sanctioned for an action that was not defined as criminal at the time it was committed However, the vast majority of legal challenges against illicit enrichment laws on these grounds have not been successful, and almost every court that has considered these issues have ruled that illicit enrichment laws do not unacceptably violate legal rights. How is illicit enrichment investigated and prosecuted? As this area of law is comparatively new, standard procedures or best practices are still very much being developed. Suspected cases of illicit enrichment often come about in the context of other ongoing corruption investigations. The initial lead may also come from newspaper articles or other regular intelligence channels. For most cases, a solid approach would include: a thorough financial investigation to determine how much money an individual might have had available over a certain period of time; a comparison between that income and how much money they spent in that time to acquire assets or maintain a certain standard of living. The aim is to gather solid evidence – not guesswork – so that only individuals who have clearly acquired their assets from non-legal sources are subjected to legal proceedings. A key tool for investigators and prosecutors seeking to prove illicit enrichment cases in court is Source and Application of Funds analysis. Annex II of Illicit Enrichment provides step-by-step guidance on how to conduct this analysis. Our free eLearning course on Source and Application analysis also provides a hands-on practical case to work through. Are there any recent case studies? A successful case brought by Kenya’s Ethics and Anti-Corruption Commission against Stanley Mombo Amuti, a former low-ranking public official who could not explain how he purchased around USD 400,000 worth of property in 10 months, has set a precedent in Kenya for further use of this mechanism. Uganda also experienced a recent success in a USD 1.25 million illicit enrichment case involving an accountant in the Office of the Prime Minister. Cases can go right to the top: the former President of El Salvador was recently convicted for illicit enrichment that occurred while he was in power. What work does the Basel Institute do in this area? The Basel Institute’s International Centre for Asset Recovery ICAR works with partner countries to help enhance their capacity to recover stolen assets and combat corruption. As part of this wider effort, in some countries we are working to improve knowledge of illicit enrichment laws and how to use them responsibly and effectively. Why? Because when drafted and enforced fairly, illicit enrichment laws can be an incredible weapon in the fight against corruption. Learn more Illicit Enrichment: A Guide to Laws Targeting Unexplained Wealth by Andrew Dornbierer is freely available on Basel LEARN alongside a database of illicit enrichment laws and step-by-step guidance on conducting Source and Application analysis. Hard copies are available to purchase at cost price via Amazon. See Illicit Enrichment: A Guide to Laws Targeting Unexplained Wealth for the relevant links. Download a PDF of this quick guide. View this quick guide on LEARN in English, Spanish, French and Portuguese.
Illicit Enrichment: A Guide to Laws Targeting Unexplained Wealth – new book published today
A new open-access book published by the Basel Institute on Governance explores the rapid growth of illicit enrichment legislation around the world and its use to target corruption and recover illicitly obtained assets. What does illicit enrichment mean for combating corruption? An increasing number of countries are introducing mechanisms to target people who enjoy an amount of wealth that can't be explained by their lawful income. These mechanisms - known as illicit enrichment laws or unexplained wealth laws - allow investigators and prosecutors to recover assets that have clearly not come from lawful sources without having to prove the specific criminal action that gave rise to these proceeds. As such, they are particularly useful to target corruption offences, where it is often difficult to point to an obvious victim or to a specific criminal act. Why are illicit enrichment laws sometimes controversial? As a comparatively underdeveloped area of law, the concept of illicit enrichment sparks debate. Critics argue that certain characteristics of these types of laws contravene longstanding legal rights such as the presumption of innocence. The vast majority of courts that have considered these laws, however, disagree with these claims and have instead ruled that they justifiably fit within established rights and procedures. Consequently, in many countries, illicit enrichment laws are currently playing a vital role in the recovery of proceeds of crime and corruption. To support practitioners and policy makers in this emerging field of law, Illicit Enrichment by Andrew Dornbierer provides a comprehensive guide to both criminal and civil-based illicit enrichment laws and how they have been applied by investigators and prosecutors to target unexplained wealth and recover proceeds of crime. Analysis of laws and cases from 103 jurisdictions Covering relevant laws from around the world, the book explains the different approaches that legislators have taken to define, codify and sanction unjustifiable and unexplainable increases in wealth. The scope ranges from laws that take the form of criminal offences to those based solely in civil procedure, such as unexplained wealth orders. Through an extensive examination of jurisprudence, the book further explains the different approaches and interpretations that judiciaries have taken when applying these laws, particularly in the context of existing legal rights. Aimed at investigators, prosecutors, legislators and academics, the open-access book features: Extensive analysis of jurisprudence and cases around the world Tables, flow charts and graphics explaining key concepts Discussion of common questions and challenges A collection of laws from 103 jurisdictions, also as an online database A step-by-step guide to financial investigation and source and application analysis to support illicit enrichment cases Illicit Enrichment was developed and published by the Basel Institute on Governance through its International Centre for Asset Recovery, with research support from the NYU School of Law. Open-access and peer review This book is freely available and shareable as an open-access research publication under a Creative Commons CC BY-NC-ND 4.0 licence. In line with accepted practice for open-access research, the book has undergone an open peer review with three diverse and highly qualified reviewers. Find the reviews and author comments in the introductory notes. Where to find it Read Illicit Enrichment online or download a PDF of the book on our Basel LEARN platform at illicitenrichment.baselgovernance.org. This version also contains: Annex I: A database of illicit enrichment laws in 103 jurisdictions, also available as a PDF Annex II: Guidance for practitioners on how to conduct source and application analysis to support illicit enrichment cases A free eBook version is available on Google Play. Purchase a printed copy via Amazon – see all links to local Amazon stores here. 30 June webinar If you're interested in hearing from the book's author Andrew Dornbierer and practitioners experienced in applying this legislation to recover stolen assets in their countries, join us on 30 June at 13:00 CET for a virtual event on Illicit enrichment laws – an underused tool to target corruption and recover stolen assets?
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