Funded by the European Union
EU funded project on asset recovery addresses challenges to capturing illicit assets in the Mena Region
Within the framework of the EU-funded Pilot Project to Support Arab Spring Countries to Implement Asset Recovery, the United Nations Interregional Crime and Justice Research Institute (UNICRI) organized a Regional Forum on Asset Recovery under the theme ‘What new approaches to capturing illicit assets?’. The Forum which took place in Tunis on 7-8 May 2018, was attended by over 50 participants from the key MENA Region countries, including Egypt, Libya and Tunisia, as well as from Morocco and Jordan who were invited through EuroMed Justice. Experts from France, Belgium and other international and regional organizations also contributed to the Forum. The closing session was chaired by the Minister of State Property, Mr. Mabrouk Kourchid.
The discussions explored innovative avenues to recover illicit assets and to reinforce international cooperation to overcome in absentia convictions (i.e. pronounced in the absence of the defendants, as is the case with several officials from the ousted regimes in Egypt and Tunisia). The Forum focused primarily on the benefits of refined confiscation mechanisms, such as:
- Value-based (equivalent) confiscation – e.g., the State would have the right to confiscate assets of legal origin of a defendant where the illicitly-obtained assets cannot be located;
- Confiscation of assets when the defendant absconds or flees before a final conviction can be pronounced; and
- Extended confiscation (assets in the possession or name of a particular defendant are presumed to be of illicit origin, where the defendant has, through prior convictions, demonstrated a pattern of involvement in criminal activity).
The effectiveness of such innovative confiscation mechanisms has been clearly demonstrated in several countries worldwide, in particular within the EU. Incorporating such mechanisms into domestic law in the MENA Region countries should facilitate reciprocity when seeking to enforce domestic orders of confiscation in other jurisdictions.
In principle, in absentia convictions cannot be executed as long as defendants have not been duly notified of the proceedings against them. Notwithstanding this, several individuals linked to high-level corruption are willfully avoiding the judicial system’s effort to “officially” notify them of criminal proceedings against them, and are thus circumventing their country’s Code of Criminal Procedure. The Forum identified this as an unacceptable loophole in criminal justice systems. They called on the project to support attempts to go beyond these constraints and to seek avenues for execution of in absentia orders for confiscation of assets in third countries, with the support of those countries.
The Forum also addressed modern challenges relevant to countries’ efforts to effectively recover illicit assets. Such challenges include those related to the seizure and confiscation of virtual currencies such as Bitcoins, and the need to extend the forensic financial analysis capacity of agencies involved in the detection of illicit assets.
Delegates acknowledged the need to coordinate a confiscation strategy among relevant stakeholders at the national level. In particular for Tunisia, which was represented by seven different ministries, there was a growing understanding that a draft bill that would provide new confiscation mechanisms should be developed with inputs from at least the Ministries of Justice, State Property and Foreign Affairs.
The Forum produced a number of key conclusions and recommendations, including:
1. That the activities thus far carried out by the Project have been useful, well targeted and contributed to more robust asset recovery mechanisms and processes;
2. The project (or future similar forms of support) should consider:
a) Roll out the anticipated Guide for Forensic Financial Analysis;
b) Continue providing technical and legal advice with respect to mutual legal assistance;
c) Organize study missions and peer-to-peer missions to foster working relations between officials from MENA countries and requested states;
d) Consider expanding the project’s asset recovery technical advice to Jordan and Morocco, as per their request;
e) Increase support in effective and transparent asset management, and in the establishment of dedicated asset recovery entities; and
f) Continue to foster participation of MENA Region asset recovery officials into already existing networks of practitioners (such as the CARIN network).
Following up on the outcomes of the Forum, the project will incorporate the recommendations of the different partners in the draft project documents that will be submitted to the EU in view of extending its asset recovery work beyond the current project. Meanwhile, the project will assist Tunisian authorities in jointly preparing a draft law on new confiscation mechanisms and organize a working group that would further discuss the possibility to execute in absentia convictions in third countries, and that would involve officials from other relevant countries, such as France and Switzerland.