A/HRC/19/42 confiscation, such instances are out of the scope of the obligation to return established by the United Nations Convention against Corruption. 58. The progress made in the last decade in enforcing the OECD Anti-Bribery Convention is of extreme importance in this regard. Almost all cases of foreign bribery have been settled in the jurisdictions where the company doing the bribery is headquartered or lists its shares. Settlements neither involve traditional confiscation procedures nor the participation of the victim country. Table 1 compares estimated amounts of proceeds of corruption repatriated to the countries of origin to estimated amounts recovered by members of the OECD Anti-Bribery Convention in foreign bribery cases since 2005, when the United Nations Convention against Corruption entered into force. The data is not meant to be precise, but illustrative for the purposes of the argument. Table 1 Estimated proceeds of corruption repatriated to the countries of origin compared to estimated amounts recovered by parties to the Anti-Bribery Convention Combined penalties in foreign bribery cases (in millions of United States dollars) Assets repatriated to its countries of origin (in millions of United States dollars) Criminal fines Disgorgement of profits Total 2005 $29 $16.5 $1.3 $29.6 2006 ---------- $18.6 $19.8 $88.9 2007 $856 $33.3 $38.5 $106.8 2008 $121.3 $843 $1,208.5 $2,008.8 2009 $66 $435.3 $205.3 $664.5 2010 $387.6 $643.7 $391 $1,409 2011 ---------- $95.3 $89 $409.8 $1,460 $2,086.9 $1,965.4 $4,717.3 Year Total Source: Elaboration based on Asset Recovery Watch and Trace Compendium51 59. Both criminal fines and “disgorgement” or surrender of profits exceed the total amount of funds of illicit origin repatriated to the countries of origin. Criminal fines are punitive in nature and therefore are imposed in order to deter the offender and/or the general population.52 By contrast, disgorgement of profits is a remedial measure that forces a defendant to “return” the profits of crime to the State, an objective aligned with the purposes of returning assets at the country of origin. 60. Disgorgement of profits is a remedy originally designed for domestic cases. However, when extraterritorially applies to foreign bribery cases it opens the question of 51 52 Asset Recovery Watch (http://assetrecoverywatch.worldbank.org/) was used to retrieve data about assets repatriated to their country of origin; the Trace Compendium (https://secure.traceinternational.org/Knowledge/Compendium.html) was used to retrieve data on combined penalties imposed in foreign bribery cases. In many jurisdictions, criminal fines are not adopted with a punitive purpose but as a substitute of a confiscation. In such cases, criminal fines may also be subject to the procedures for return suggested in paras. 59-65. In order to decide when this should be the case, the definition of proceeds of corruption adopted by the United Nations Convention against Corruption as well as the precedents of the European Court of Human Rights for distinguishing punitive measures from remedial measures are good guidance. 15