A/HRC/19/42
51.
Mandatory provisions for repatriation follow the principle of prior ownership
(ownership at the time of the offence).49 According to article 57, paragraph 3 ,of the United
Nations Convention against Corruption, the return of proceeds of embezzlement of public
funds or of laundering of embezzled public funds – where prior ownership of the victim
state is assumed – is mandatory, provided that property has been (a) confiscated, (b) this
has been done at the request of the victim country and that (c) it was done on the basis of a
final judgement in the requesting State party, a requirement that can be waived by the
requested State party.
52.
By contrast, return of proceeds of any other offence covered by the Convention
against Corruption under both the mandatory and non-mandatory provisions, is conditioned
by the requesting party’s reasonable establishment of its prior ownership of such
confiscated property. When this condition cannot be met, return is still possible, although
not mandatory, if the requested State party is able to recognize damage to the requesting
State party. In all other cases, State parties are required to give priority consideration to
returning confiscated property to the requesting State party, returning such property to its
prior legitimate owners or compensating the victims of the crime (art. 57, para. 3 (c)).
53.
Lastly, article 57, paragraph 5, establishes that, where appropriate, States Parties
may also give special consideration to concluding agreements or mutually acceptable
arrangements, on a case-by-case basis, for the final disposal of confiscated property.
54.
The more successful these procedures are in returning proceeds of corruption to their
countries of origin, the more resources States will have for complying with their duties to
respect, protect, and fulfil human rights, particularly economic, social and cultural rights,
should the repatriated funds be spent in line with the human rights-based approach.
55.
An example in this direction, going even beyond conventional requirements, is
provided by the Swiss Restitution of Illicit Assets Act. This piece of legislation provides for
the autonomous freezing, forfeiture and restitution of the assets of politically exposed
persons in cases where a request for mutual legal assistance fails due to the impossibility of
the requesting State to meet the standards required by the Swiss legislation. In such cases,
the act allows Swiss courts to presume the illicit nature of the assets, provided that the
patrimony of the politically exposed person is clearly disproportionate to its legal sources of
income and that the degree of corruption of the State or of such person is notoriously high.
In those cases, if the politically exposed person is unable to prove the legal acquisition of
the assets, these will be confiscated and returned to the country of origin for investments in
programmes directed at improving the living conditions of the population, strengthening the
rule of law, and/or combating impunity.
56.
Another important development is the recommendation that countries engage in a
broader international policy debate about how assets-repatriation can be incorporated into
the settlement agreements achieved in foreign bribery cases under the legislation
implementing the Organization for Economic Cooperation and Development (OECD)
Convention on Combating Bribery of Foreign Public Officials in International Business
Transactions.50
57.
As mentioned in paragraph 51 above, the rules governing the return of assets to the
country of origin require that the assets had been confiscated at the request of the victim
country. In other words, if confiscation did not occur at the request of the victim country or
if the proceeds of corruption were recovered through a legal mechanism other than
49
50
14
A/58/422/Add.1, para. 66.
Development Assistance Committee of the Organization for Economic Cooperation and Development
and the Stolen Asset Recovery, Meeting Accra’s Anti-Corruption Commitments: A Call to Action.
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