Objectives

The Human Rights Council (res 46/11, para. 24) requested the Independent Expert on foreign debt and human rights “to conduct a new study […] on a proposed non-binding set of practical guidelines for efficient asset recovery aiming at curbing the illicit transfer of funds and mitigating its negative effects on the enjoyment of human rights.”

In order to address this request, the Independent Expert would welcome inputs and contributions from States and other relevant stakeholders. She looks forward to benefiting from a diverse set of views and experiences and thus invites submissions from States, international financial institutions, civil society organizations and networks, trade unions, United Nations agencies and entities, private actors, academia, think tanks, and any other relevant stakeholders on the issues outlined below.

Please note that the following questions assume a State-respondent. If you are not a State-respondent, kindly answer the questions to the best of your ability given the nature of your work and expertise.

Key questions and types of input sought

The Independent Expert would welcome receiving:

• Any pertinent information, documents, statements or analysis on this topic;
• Relevant contact information of authorities and technical staff at the national level that may assist to shed light on the practical challenges associated with asset recovery; and
• Answers to the specific questions below.

Note that, for the purpose of information gathering, the questions are divided into the different stages that asset recovery generally entails (see further the Asset Recovery Handbook prepared by the StAR Initiative in relation to stages available at https://star.worldbank.org/publications/asset-recovery-handbook-guide-practitioners-second-edition).

How and where to submit inputs/comments

Submissions should be sent electronically via email. They must be received by 31 August 2022. Due to limited capacity for translation, we kindly request that responses be submitted in English, Spanish or French.

1. Determining whether an asset can be considered a recoverable asset of illicit origin
   1. What does and does not constitute a recoverable asset of illicit origin is central to the idea of asset recovery. At the national level, what renders an asset one of illicit origin? How is it determined whether an asset is recoverable in a legal sense? Which laws are applicable to this determination? Which stakeholders are involved in making this determination and what processes do they follow?
2. Collecting intelligence and evidence, and tracing assets

   During this stage, intelligence analysts and law enforcement officers, amongst others, collect intelligence, gather evidence, and identify and trace assets. The Independent Expert would like to ascertain:

   1. What are the most common challenges at this stage of the asset recovery process? How could these challenges be overcome?
   2. To what extent are resources (human or financial, for instance) dedicated to this stage of the process at the national level within requesting States? To what extent are the resources allocated to this phase sufficient? Are they timely? Are sufficient resources being dedicated to training and capacity building? What other resources are needed?
   3. To what extent, and through which legislative, institutional and other mechanisms, is the conduct of politically exposed persons scrutinised?
   4. How are potential whistle‑blowers protected?
   5. To what extent, and through which legislative, institutional or other mechanisms, are civil society organizations, academics, independent media organisations as well as other key stakeholders enabled to participate in this stage of the process?
3. Securing assets

   During the investigation, assets subject to confiscation need to be secured through provisional measures to avoid dissipation, movement, or destruction.

   1. What are the most important challenges at this stage of the asset recovery process and how can these be overcome in a manner that curbs illicit financial flows?
   2. Are there particular characteristics ascribable to mutual legal assistance (MLA) processes that hinder the securing of assets? Are there examples of MLA processes that are particularly conducive to ensuring that assets are secured through provisional measures in order to prevent dissipation, movement, or destruction?
   3. If any, what informal steps falling short of formal MLA requests have been taken in the past in order to secure assets? Which of these steps have been particularly conducive to ensuring that assets are secured through provisional measures in order to prevent dissipation, movement, or destruction?
   4. Prior to a particular asset having been secured, where applicable, does interest accrue on the secured assets? If so, to whom does such interest accrue? What good practices exist to ensure that no parties unfairly benefit from inefficient asset recovery processes?
   5. Are formal processes or informal processes engaged and which approach or combination tends to be more efficient and effective? Are there, as a result, informal process that should be included or formalised?
4. Court proceedings and enforcement of orders

   Confiscation of assets can only follow once court proceedings have been successfully undertaken, whether in the form of criminal trials, non‑conviction‑based confiscation hearings or private civil actions, amongst others. Once a confiscation order is obtained, that order must then be enforced.

   1. What are the biggest challenges at this stage of the asset recovery process and how can these be overcome in a manner that curbs illicit financial flows?
   2. To what extent are foreign freezing, seizure, and confiscation orders given effect to in requested States? What are the legal, administrative and/or operational barriers that have been encountered when attempting to give effect to such orders? Are there examples of requested State laws that enable an efficient and effective process without compromising on due process and rule of law concerns?
   3. When certain assets have been secured and court proceedings have been initiated but not completed or enforced, where applicable, does interest accrue on the secured assets? If so, to whom does such interest accrue? What best practices exist to ensure that no parties unfairly benefit from inefficient asset recovery processes?
   4. Where possible, kindly provide the Independent Expert with references to court cases related to asset confiscation and enforcement of asset confiscation orders. Please also provide any materials related to such cases that may be of use to the Independent Expert, including copies of judgments, pleadings and court orders. Where possible, kindly provide contact details for institutions or individuals who were directly involved in the cases that the Independent Expert could consult, including confidentially.
5. Asset return

   Once confiscated, assets must be returned to requesting States.

   1. What are the most common challenges at this stage of the asset recovery process and how can these be overcome?
   2. If applicable, what have requesting States done with assets once they have been repatriated from requested States? If the recovered assets consist of funds, how have such funds been utilised by requesting States? What link has been established between assets recovered and human rights obligations of requesting States?
   3. Which instruments and mechanisms have proven successful / unsuccessful in ensuring that confiscated assets are returned efficiently to requesting States by requested States? In what ways can these instruments and mechanisms be improved to make the return process more efficient? In what ways can these instruments and mechanisms be improved with a view to ensuring that repatriated assets contribute to requesting States fulfilling their human rights obligations?
6. Other challenges and useful practices
   1. What other challenges arise during the asset recovery process and how can these be overcome in a manner that curbs illicit financial flows? What additional practices have proven useful in making asset recovery more effective and efficient? Where possible, kindly provide contact details for authorities and technical staff at the national level that the Independent Expert could consult in relation to these challenges and practices.

Treatment of inputs/comments received

Given the nature of the questions and potential responses, submissions received can be kept confidential upon request. Other submissions will be published on the website of the mandate.