Non-conviction based forfeiture (NCBF) laws allow courts to confiscate assets of a criminal nature, even where no conviction has been obtained in relation to criminal conduct.

They have existed for many years in several countries in a wide variety of forms, and complement other asset recovery mechanisms. Yet this diversity – and the fact that many countries still do not have or use such laws – leads to challenges with their application, especially in cases with an international element.

The Basel Institute’s International Centre for Asset Recovery led a 24-month programme entitled “Supporting Stakeholders in Adopting Non-Conviction Based Forfeiture as a Tool for Asset Recovery”. Funded by the Bureau of International Narcotics and Law Enforcement Affairs of the U.S. Department of State, the programme aimed to increase the capacity of 10 countries to recover stolen assets through effective, appropriate NCBF legislation.

The programme has resulted in some important successes and reflections that pave the way for wider use of NCBF mechanisms. It has also spurred the development of knowledge communities that offer a forum for practitioners to share experiences and discuss challenges. We hope these will all assist champions and practitioners to maximise the potential of NCBF to recover illicit assets and thereby deter corruption and other crimes.

Here are four big-picture takeaways:

1. Internationally recognised standards would ease cooperation and boost adoption

NCBF mechanisms for asset recovery have long been recognised in key international treaties including the UN Convention Against Corruption (Article 54.1(c) and by standard-setting bodies such as the Financial Action Task Force (in its Recommendation 4).

The Political Declaration of the UN General Assembly Special Session Against Corruption reaffirmed the commitment of States to:

“…adequately address requests based on non-criminal proceedings, including civil, administrative non-conviction-based proceedings, as well as those related to information concerning unexplained assets held by public officials, where appropriate and consistent with domestic legal systems and applicable international obligations…” (Paragraph 40)

However, there are as yet no common and internationally recognised standards for NCBF legislation. As a result, practitioners face significant challenges with international cooperation in asset recovery cases involving NCBF mechanisms. One common obstacle is allegations of their incompatibility with the rule of law.

A set of common and internationally recognised standards for NCBF legislation would assist jurisdictions to adopt legislation that respects the rule of law and fundamental rights. In turn, standards based on a human rights approach will likely be useful for promoting the use of NCBF globally.

2. NCBF complements other asset recovery mechanisms – which must also be robust

Decades of implementation in individual countries show that NCBF is a critical legal tool to complement a country’s existing asset recovery mechanisms. These should include a sound criminal confiscation framework and other administrative or civil mechanisms aimed at recovering illicit assets.

At our 2022 Lisbon Conference, a major takeaway was the need to improve and harmonise existing criminal legislation on asset forfeiture. This would enable NBCF mechanisms that already exist in this legislation to be effectively applied in criminal cases.

It would also provide a strong basis for countries to examine the possibility of civil (non-conviction based) confiscation for situations that cannot be resolved in a criminal process.

3. Peer learning forums are crucial for practitioners to maximise the potential of NCBF in their countries

Peer learning is a key way to foster the global implementation of NCBF mechanisms. The programme’s workshops brought together practitioners from countries at different stages of their implementation of NCBF.

In a workshop of our Sub-Saharan Africa cluster, for example, practitioners shared practical tips on asset tracing and using visual methods to convey complex NCBF cases in court.

A strong Knowledge Community has also emerged in Latin America, bringing together practitioners and academics from across the region.

Referring to the Lusophone community, Franklin Afonso Furtado, Advisor to the Prosecutor General of Timor-Leste, commented:

“The support of ICAR and the sharing of experiences of colleagues who are participating in this initiative will be very useful in arriving at future solutions regarding NCBF mechanisms.”

4. Country assessments help in drafting laws that fit local systems and work in practice

Political will is critical in any effort to introduce NCBF mechanisms, since such legal reforms are part of a state’s economic and political system. Solid technical support is also crucial to ensure laws are not only properly drafted for their context.

Before attempting to improve asset recovery frameworks and NCBF mechanisms, it is therefore essential for politicians, legislators and all others involved to properly understand existing legal frameworks and their strengths and weaknesses.

Country assessments help policymakers and legislators to draft and adopt relevant policies based on evidence and not perceptions. The methodology developed for the programme’s country assessments (set out for example in this assessment of Chile) could be adopted by others seeking to generate clear and comparable evidence on countries’ needs with regards to asset recovery.

The deep understanding that the country assessments provide also assists with the effective implementation of NCBF laws in practice. As Euclides Dâmaso, Retired Deputy Prosecutor General of Portugal, said:

“The biggest problem is not creating the laws, but applying them correctly.”

More

• Learn more about the programme in English, en español and em português.
• See case studies on the use of extinción de dominio – the dominant form of NCBF mechanism in Latin America: The Nun (La Monja) and the Russian Arms Dealer Case.
• Learn more about the regional workshops in Latin America, Sub-Saharan Africa and among Lusophone countries.
• See a new training programme on non-conviction based forfeiture that ICAR has developed and offers to anti-corruption and judicial practitioners in partner countries and download our latest training brochure.

Note: The programme was funded by a grant from the United States Department of State. The opinions, findings and conclusions expressed are those of the authors and do not necessarily reflect those of the United States Department of State.