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Registration open: 6th International Collective Action Conference
The only international anti-corruption Collective Action Conference is back Are you working on corruption prevention in the private sector, government, civil society or academia? Then join us for the sixth edition of this biannual landmark event on 9–10 June in Basel, Switzerland. Over one and a half days of expert sessions, fireside chats and networking, we’ll bring together practitioners from around the world to build and strengthen communities of practice in Collective Action. This edition will focus on concrete measures to make markets fairer and more transparent – with a strong hands-on approach: What does Collective Action look like in practice, and what makes it work? How can a multi-stakeholder approach help organisations respond more effectively to global business challenges? The 6th International Collective Action Conference is supported by the Siemens Integrity Initiative. Participation is free of charge, but places are limited and subject to approval. Learn more on the official event page on the B20 Collective Action Hub and submit your registration request here. Sponsorship opportunities We are seeking a limited number of sponsors to support the conference and help advance practical, multi-stakeholder approaches to business integrity and anti-corruption. See more information on sponsorship options and benefits and don't hesitate to get in touch.
Switzerland to return USD 8.5 million to Peru in precedent-setting case of non-conviction based forfeiture
It has taken nearly 20 years, but a decision by the Swiss Federal Supreme Court has cleared the way for the return of around USD 8.5 million in corruptly obtained assets to Peru. The money to be returned is part of a complex of cases linked to Vladimiro Montesinos, Head of Intelligence under former President Alberto Fujimori. It is a highly symbolic case for both Switzerland and Peru and sets an important precedent for the use of non-conviction based forfeiture laws to recover illicit assets. Such laws enable the confiscation of these assets without a criminal conviction of the defendant. The case shows two things: First, that non-conviction based forfeiture is an innovative and promising tool in the fight against corruption. It makes it possible to get at the “untouchables”, or at least the money they have stolen, even when the criminal justice system fails to convict a person for whatever reason. Peru’s successful application of this legal tool has already inspired other asset recovery practitioners far beyond Peru or even Latin America. Second, that it shows the merits of states in this case Switzerland being open to novel asset recovery mechanisms so as to be able to offer help in the context of international judicial cooperation. Other large financial centres can take note. As we regularly promote in policy forums and among our partner governments, all states should live up to their international commitments to provide the widest possible measure of international cooperation in asset recovery. The Basel Institute has been supporting the Peruvian authorities since 2012 in emblematic asset recovery cases through capacity building and hands-on mentoring. We congratulate the authorities in both Peru and Switzerland, and thank the core donors of our International Centre for Asset Recovery ICAR and the Swiss State Secretariat for Economic Affairs for supporting our technical assistance in the country. Multiple appeals from a man who fled prosecution Despite the relatively small amount of money – at least compared to the amount stolen through corruption – it was a challenging case, says Oscar Solórzano, who leads the Basel Institute’s asset recovery efforts in Latin America. Peruvian prosecutors working with Solórzano were able to prove in court that the USD 8.5 million derived from corrupt contracts for the purchase of overvalued fighter jets from Belarus during Peru’s Fujimori government. The beneficial owner of the bank account was German-Israeli businessman Moshe Rothschild Chassin, an accomplice of Montesinos. He fled to Israel to evade prosecution and, despite being subject to an Interpol red notice, remains free. In 2021, after Peru’s Courts issued the confiscation order, the judicial authorities sent a mutual legal assistance request to the Swiss authorities to execute the confiscation order and return the money. Oscar Solórzano explained that Moshe challenged the confiscation order at all three appeals stages in Switzerland: in the Attorney General’s Office in Zurich, in the Federal Criminal Court in Bellinzona and in the Federal Supreme Court in Lausanne. The Swiss judges agreed first with their Peruvian counterparts that, through a detailed financial investigation, Peru had successfully proven that the bank account in Zurich constituted proceeds of crime. Second, they rejected the appeals, noting that the non-conviction based forfeiture procedure in Peru had been conducted in accordance with all applicable standards and legal rights. Untapped potential of non-conviction based forfeiture laws The Peruvian confiscation order was based on its Extinción de dominio law, a form of non-conviction based forfeiture law that is quite prevalent across Latin America. Sometimes known as civil forfeiture, this type of law enables the confiscation of assets linked to corruption or other crimes even if the perpetrator cannot be prosecuted. This was the case for Moshe. As an accomplice rather than a public servant, Moshe can never be prosecuted on criminal charges of collusion and bribery. He will also not be extradited from Israel. As a result, Peruvian Judge Eduardo Torres said: The autonomy of the Extinción de dominio procedure from the criminal process was key to its use in this case. The standard of proof in non-conviction based forfeiture laws is civil balance of probabilities rather than criminal beyond reasonable doubt . Various judicial mechanisms are in place to ensure that the person’s rights are fully respected throughout the process. Its Extinción de dominio law is one reason why Peru has become a positive role model in the region in terms of asset recovery. At a recent convention of judges organised by the Basel Institute’s team in Lima, the Head of Peru’s Judiciary Javier Arévalo Vela highlighted that the law had already enabled the recovery of around USD 64 million in illicit assets, with many more cases in the pipeline. Judge Torres added: The case is also important for the Peruvian justice system as a whole. The fact that money misappropriated from the Peruvian treasury will be returned shows we are in compliance with international treaties. And we are sending a message to the corrupt: if you misuse the public administration and steal Peruvian money, ultimately you will not profit from it. International cooperation Another boost to Peru’s asset recovery efforts has been improved international cooperation with financial centres such as Switzerland. International cooperation is a constant challenge for countries seeking to recover corrupt assets, as Specialised Prosecutor Hamilton Castro explained in this interview, and is a core element of ICAR’s technical assistance in Peru and other partner countries. In too many cases, states harbouring illicit assets will not cooperate on cases where they do not have an equivalent asset recovery mechanism. Though Switzerland does not have a comparable autonomous non-conviction based forfeiture law, it has shown willingness to evaluate Peru’s law according to its own legal principles and offer assistance where possible. Judge Torres said: International cooperation was a decisive factor in both achieving the confiscation order and executing it. The Swiss decision paves the way for other countries to carry out similar procedures, following Peru's example and maintaining the rights of the affected party throughout the process. What’s next? The funds will be transferred to Peru and used in a manner to be agreed upon between the two concerned jurisdictions. Over USD 25 million confiscated by Peru previously in this complex of cases were returned under a trilateral agreement in 2020 between Switzerland, Luxembourg and Peru that foresees the use of funds to strengthen the country’s law enforcement and judicial systems. Asked what we can take forward from this and related cases, Oscar Solórzano says: Not only have Peru’s judicial authorities gained knowledge and confidence in applying this law and having confiscation orders executed internationally. We also see prosecutors and judges in other Latin American countries empowered by the positive example set by Switzerland and Peru. At the Basel Institute, we promote asset recovery mechanisms globally that are effective, but also proportionate and respectful of human rights. We believe these are the ingredients to make these laws truly global legal tools in the fight against corruption and other forms of crime. Judge Torres expressed his hope that: ...we will continue to recover large amounts of money in transnational cases, with the collaboration of all entities involved in the recovery process and in particular with the collaboration of the Basel Institute on Governance. For example, Oscar Solórzano's assistance in tracing the money through various transactions to its final destination was key to unlocking the case in the first place. Read more Learn more about the work of our International Centre for Asset Recovery and our Programa GFP Subnacional, which together undertake our asset recovery assistance in Peru. ICAR is funded by core contributions from the Government of Jersey, Principality of Liechtenstein, Norwegian Agency for Development Cooperation Norad , Swiss Agency for Development and Cooperation SDC , UK Foreign, Commonwealth & Development Office FCDO and UK Home Office. Our Programa GFP Subnacional is funded by the Swiss State Secretariat for Economic Affairs. See our asset recovery case study series.
Vacancy: Senior HR Specialist (team lead) 60 – 80%
Our HQ office is looking for a motivated, internationally-minded Senior HR Specialist to lead our HR function. This includes to oversee, quality control and directly execute a variety of personnel and related administrative and managerial duties. In addition, s/he leads on and is responsible for special HR cases and projects. The Senior HR Specialist works closely with and manages the HR Specialist and reports to the Head of Operations. See the full job description and please apply by 4 September 2022.
Don’t let a kleptocrat’s war destroy Ukraine’s reconstruction
Ukraine’s recovery will require billions of dollars – so leaders pledging reconstruction funds need to ensure Ukraine’s anti-corruption defences are up to the task. A joint opinion article by Gretta Fenner, Managing Director, Basel Institute on Governance and Andrii Borovyk, Executive Director, Transparency International Ukraine. View it in Ukrainian here. The ongoing Russian war of aggression against Ukraine is causing unspeakable human tragedy. In addition, it is destroying the country’s economy and essential infrastructure. Rebuilding these won’t bring back those who died under Russian bombardments, but it will be critical for Ukraine’s recovery. And it is critical for Europe and the world; the war has only too dramatically illustrated how vulnerable and inter-dependent we all are. On July 4 and 5 in Lugano, Switzerland, the Ukraine Recovery Conference will see leaders from around the world pledge hopefully billions to finance this recovery. It is estimated that up to USD 1 trillion will be needed, a sum likely to increase as the war wages on. We applaud this and hope that these will not remain pledges, but that the urgently needed funds will be made available swiftly and generously. But in our recommendations to those leaders, we stress that where there is money, there is temptation. We highlight the need to prioritise the leadership selection process of Ukraine’s formidable anti-corruption institutions, including courts, use transparent procurement systems for reconstruction efforts, and strengthen the asset recovery systems so that they can help fuel the reconstruction efforts. Every reconstruction effort brings with it massive corruption potential. In this regard, Ukraine will be no different from any other country which has seen a massive influx of funds as a result of natural disaster or war. Think Afghanistan, think Iraq, think the 2004 Indian Ocean tsunami. Anti-corruption has been high on Ukraine’s political agenda before the war. But even with significant reforms since 2014, the country is far from ready to withstand the inevitable attack by kleptocrats, organised criminal groups and corrupt officials at all levels who see a golden opportunity in Ukraine’s tragedy. Long before the Kremlin decided to invade Ukraine, it had been waging another war in Ukraine. This war pits the rule of law against the kleptocratic Soviet past which the Kremlin today wholeheartedly embraces as a vision for its present and future. Well aware that its legitimacy quickly crumbles when other countries with similar history make moves in the opposite direction, it has invented the Kremlin playbook to stop any such attempt in its tracks. With the help of willing local enablers, it exports corruption to infiltrate the target countries’ governance, to deprive them of their resources and to destabilise their social fabric. Ultimately it destroys their statehood to the extent that in some of them, it is today those Russian sponsored kleptocratic enablers who are in charge; elected governments are kept around for a thin veneer of legitimacy. Ukraine needs military support to fight back the Russian aggression, save its people and regain its territorial integrity. But Ukraine also needs anti-corruption weapons so that it can fight the kleptocratic Kremlin in this parallel war. If corruption is allowed to go unchecked, Ukraine’s reconstruction would hand a massive victory to those who benefit from this subversive kleptocratic war. Talking about corruption is never pleasant. Admitting that a country has corruption risks makes many squirm. But if we want to truly honour the heroic Ukrainian people and their sacrifices, corruption must be squarely at the centre of planning and implementation of recovery. We urge world leaders to keep in mind these recommendations. Because if we don’t, then we allow the Kremlin to destroy Ukraine not once, but twice. And because nothing would undermine the Kleptocratic Kremlin more than a Ukraine that is able to rise from the ashes with integrity. See our joint recommendations in full in English, download the shorter infographic or view the recommendations in Ukrainian. The blog post is available in Ukrainian here: НЕ ДОЗВОЛЬТЕ ВІЙНІ КЛЕПТОКРАТІВ ЗАВАДИТИ ВІДБУДОВІ УКРАЇНИ.
How Switzerland is seeking to return illicit assets to Ukraine
Switzerland has launched administrative proceedings to confiscate over USD 100 million in assets linked to the regime of former Ukrainian president Viktor Yanukovych, with the ultimate aim of returning these to Ukraine. The assets are held by a close associate of the former president, Yuriy Ivanyushchenko and his family. They have been frozen in Switzerland since Yanukovych was deposed in Ukraine’s 2014 Revolution of Dignity. As described in the press release, the decision on 25 May 2022 to initiate confiscation proceedings is unrelated to the Russian sanctions. The significance of this decision goes beyond the hoped-for return of over USD 100 million to the people of Ukraine at a time of immense need. The move demonstrates how States can proactively seek ways to use their full legal toolkit to confiscate illicit assets linked to political exposed persons PEPs and ensure they are put to good use. Appropriate use of Switzerland’s Foreign Illicit Assets Act The proceedings are based on a law in force in Switzerland since 1 July 2016, the Foreign Illicit Assets Act FIAA . This: governs the freezing, confiscation and restitution of assets held by foreign politically exposed persons or their close associates, where there is reason to assume that those assets were acquired through acts of corruption, criminal mismanagement or by other felonies. In particular, Article 4.2 of the FIAA sets out conditions of its use, including that: a country is unable to satisfy the requirements of MLA owing to the total or substantial collapse, or the impairment, of its judicial system failure of state structures . This provision is critical because, unlike some simplified reports have stated, it does not apply to what is commonly referred to as "failed state" only. Rather, it also applies to a country that is willing to cooperate but unable to because relevant aspects of its judicial system are impaired to such an extent that they cannot complete the mutual legal assistance MLA procedures. Before the Russian invasion, Ukraine had been cooperating extensively with the Swiss authorities on the Ivanyushchenko case. The administrative freeze on the assets had been upheld and renewed as a consequence of the ongoing cooperation. The war has changed the situation: the country is still willing to cooperate but no longer able to. What’s next? The Federal Department of Finances will formally issue proceedings at the Federal Administrative Court requesting the confiscation of the assets in question. The latter will then need to determine whether the conditions for confiscation under the FIAA are met. Whether Ukraine is or is not capable of MLA will be one of the crucial points to examine in this regard. If the FIAA is applied, there is a legal presumption that the assets are of illegal origin unless the holder of the assets is able to demonstrate that they were acquired legitimately. The asset holder Ivanyushchenko may appeal the verdict of the Federal Administrative Court before the Swiss Federal Tribunal, which will decide definitively. If the confiscation is definitively pronounced by the courts at the end of this process, the Federal Government has already announced that it intends to return the confiscated assets to Ukraine. Typically, the end use of the assets will be discussed and agreed upon bilaterally between Switzerland and Ukraine. Looking ahead The Basel Institute has been supporting the relevant authorities in Ukraine since 2014, including in cases related to assets frozen in Switzerland. We very much welcome the Federal Council’s decision to apply the FIAA in this case, considering it is precisely what the law is intended for. This is only the second time that the FIAA is being applied. It may thus set important precedents and open the door to future confiscation in relevant circumstances.
Publications
Wolfsberg Anti-Bribery and Corruption Compliance Programme Guidance
This publication from the Wolfsberg Group is designed to provide guidance to the financial services industry on how to develop, implement, and maintain an effective Anti-Bribery & Corruption (ABC) Compliance Programme, and should be read in conjunction with applicable legislation, regulation, and guidance issued by authorities in the jurisdictions in which a financial institution conducts business. The overall objective of the Guidance is to promote a culture of ethical business practices and compliance with ABC legal and regulatory requirements.
A Swiss–Peruvian asset recovery case boosts prospects for non-conviction based forfeiture
In an article published in the inaugural issue of the Bulletin of The International Academy of Financial Crime Litigators, Oscar Solorzano and Gretta Fenner analyse a recent decision of the Swiss Federal Supreme Court, which cleared the way for returning funds tied to corruption to Peru. The decision sets an important precedent for the use of non-conviction based forfeiture laws to recover illicit assets in the absence of a criminal conviction. This is a crucial step in the fight against global corruption.
The Bulletin is a new publication from The International Academy of Financial Crime Litigators. 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.
Case Study 10: Using full legal means to confiscate illicit assets in a time of war
This case study describes how Switzerland is putting to test a rarely used but powerful law in order to confiscate assets connected to Ukraine’s 2014 Revolution of Dignity, with the aim of returning these to Ukraine.
Open-access licence and acknowledgements
This publication is part of the Basel Institute on Governance Case Study series, ISSN 2813-3900. It is licensed for sharing under a Creative Commons BY-NC-ND 4.0 licence.
The Case Study series offers practitioners insights into interesting and precedent-setting cases involving corruption and asset recovery. Many such cases are drawn from partner countries of the Basel Institute’s International Centre for Asset Recovery.
Suggested citation: International Centre for Asset Recovery. 2023. “Using full legal means to confiscate illicit assets in a time of war." Case Study 10, Basel Institute on Governance. Available at: baselgovernance.org/case-studies.
Seefahrtsnation Schweiz: Vom Flaggenzwerg zum Reedereiriesen
Die Globalisierung im heutigen Umfang wäre ohne die Seefahrt nicht möglich, doch der Preis ist hoch: Die Seefahrt ist auf Kollisionskurs mit der Umwelt, sie ist nach wie vor gefährlich, die Besatzungen in See- und Binnenschifffahrt arbeiten oft unter prekären Bedingungen. Doch die Schweiz als viertgrösster Reedereistandort Europas will von den beachtlichen Herausforderungen der Schifffahrt kaum etwas wissen.
Die Schweiz als wichtige Seefahrtsnation – verstärkt noch durch die Schiffe unter Kontrolle der hiesigen Rohstoffhändler und auch als Flaggenstaat in der Flusskreuzfahrt – ist in alle Problemfelder der Schifffahrt verwickelt, bis hin zum Abwracken der Seeschiffe auf Gezeitenstränden, das grauenhafte Folgen für Mensch und Umwelt hat. Deshalb ist es dringend, dass die Schweiz sich der Thematik annimmt und in internationalen Gremien ihre Stimme erhebt, um – im Verein mit den grossen Schifffahrtsnationen – die Probleme der Seefahrt anzugehen, statt die Augen zu verschliessen und Problemfirmen ihr Territorium zur Verfügung zu stellen.
Kathrin Betz und Mark Pieth rollen in ihrem umfassenden Standardwerk die Geschichte der Schweiz als Seefahrtsnation auf: Sie widmen sich dem Grund für die Attraktivität als Reedereistandort, der Finanzierung und dem Bau von Schiffen, der Arbeit auf See, dem Konflikt mit der Umwelt, der Abwrackung sowie der Rolle der offiziellen Schweiz.
Case study: The Nun – Confiscating assets of the Shining Path terrorist organisation / Estudio de caso: La monja – Decomisando los activos de la organización terrorista Sendero Luminoso
This case study describes the background, legal strategy and conclusion of a landmark case of non-conviction based confiscation in Peru that has enabled the successful confiscation of around one million dollars linked to terrorist financing.
The case relates to Nelly Marion Evans Risco, a British-Peruvian woman known popularly as “The Nun”. Evans held funds in a bank account in Switzerland that were intended to finance the Shining Path terrorist organisation, whose violent acts in the 1990s were responsible for an estimated 60,000 deaths in Peru.
As well as explaining the prosecutorial strategy behind the case, the study also discusses the Peruvian law on non-conviction based confiscation of illicit assets, extinción de dominio.
This case study was produced in the context of the Cooperation Agreement signed between the Basel Institute on Governance and the Public Prosecutor’s Office of Peru. Its purpose is to provide a documentary record of emblematic cases of asset recovery in which there has been a successful synergy between both institutions. It is a knowledge tool suitable for both a general and specialised audience.
This work is licensed under a Creative Commons Attribution-Noncommercial-NoDerivs 4.0 International License (CC BY-NC-ND 4.0). Citation: Solórzano, Oscar. 2021. *Case study: The Nun – Confiscating assets of the Shining Path terrorist organisation. *Basel Institute on Governance. https://baselgovernance.org/publications/case-study-the-nun