A/HRC/19/42
43.
However, this will only be true if the authorities at the destination country make
every possible effort to reduce the conditions under which a case might be started.
Currently, recipient countries do not usually take ownership over the cases, even when they
are in a good position to move the process forward. The human rights-based approach to
the asset-recovery process, which emphasizes the recipient country’s duty to cooperate and
be accountable, reinforces the argument for proactive investigation.
44.
Indeed, the framework for the prevention and detection of illicit flows under the
United Nations Convention against Corruption enshrines human rights principles. By
increasing oversight over public officials’ transactions, it strengthens accountability. In
addition, the principles of participation and transparency, which are enshrined in chapter II
of the United Nations Convention against Corruption on preventive measures, cover all
required measures related to the implementation of the anti-money laundering framework in
both the public and private sectors.
45.
Finally, the framework of the United Nations Convention against Corruption also
reinforces business responsibility towards complying with applicable laws, an aim that has
been pursued in the last decade by several initiatives focused on making companies respect
human rights. The United Nations Global Compact, for example, aims to make companies
embrace 10 principles in the areas of labour, environment, anti-corruption, and human
rights. In the same vein, the "Guiding Principles on Business and Human Rights” (see
A/HRC/17/31, annex) set a framework based on (a) the State duty to protect against human
rights abuses, (b) the corporate responsibility to comply with and respect all applicable laws
and human rights, and (c) the need for greater access to effective remedies by victims in
order to achieve “the effective prevention of, and remedy for, business-related human rights
harm”.38 These complementary initiatives should reinforce the implementation of the
United Nations Convention against Corruption.
Freezing or restraining and confiscating
46.
The adoption of measures aimed at freezing, restraining and confiscating funds of
illicit origin need not be detrimental to due-process rights, neither to defendants nor to asset
holders, being in criminal or civil procedures. Some provisions recommended by the United
Nations Convention against Corruption have been previously challenged on a human rights
basis. Article 31, paragraph 8, recommends requiring an offender to demonstrate the lawful
origin of not only the alleged proceeds of crime but also of other property liable to
confiscation. Similar provisions were analysed in a set of precedents that established the
conditions that must be met in order not to violate due-process rights. Such precedents held
that the right to be presumed innocent is not an absolute right, 39 and that legal presumptions
in criminal law are not per se restrictive to such right as long as States take into account the
importance of what is at stake, and respect the right to defense. 40 Thus, as far as in
employing presumptions State parties conduct a balancing approach and so far as the means
employed are reasonably proportionate to the legitimate aim sought to be achieved,
challenges based on the presumption of innocence will not succeed. 41 The possibility of
non-conviction-based confiscations was also upheld on the grounds that, depending on how
38
39
40
41
12
Idem, Introduction, para. 16.
European Court of Human Rights, Krumpholz vs. Austria, 18 March 2010, para. 34; Grayson and
Barnham vs. United Kingdom, 23 September 2008, para. 40; Muller vs. Austria, 18 September 2008,
para. 40; Phillips vs. United Kingdom, 5 July 2001, para. 40.
European Court of Human Rights, Phillips vs. United Kingdom, 5 July 2001, para. 40; Salabiaku vs.
France, 7 October 1988, para. 28.
European Court of Human Rights, Västberga Taxi Aktiebolag and Vulic vs Sweden, 23 July 2002.
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