A/HRC/36/52 of human rights, including social and economic rights, in their jurisdictions. The following are some of these best practices. 17. Greater scrutiny of politically exposed persons. The term politically exposed persons was devised by the Financial Action Task Force in 2003 to refer to individuals (or their family members or close associates) who were or had been entrusted with a prominent public function. 23 The Task Force contended that such persons should undergo additional scrutiny since they were capable of abusing their position and influence to launder money or commit related predicate offences, including corruption and bribery, as well as conduct activity related to terrorist financing. The February 2012 revision to the Financial Action Task Force rules expanded the definition of politically exposed persons to include domestic politically exposed persons, in addition to those in foreign jurisdictions. 24 More significantly, the definition was extended to cover politically exposed persons in international organizations. 25 Financial institutions and other professionals were charged with conducting this scrutiny.26 18. Reversal of the burden of proof. This new requirement under money-laundering and anti-corruption laws — that an individual possessed of excessive wealth must demonstrate that such wealth has a legitimate origin — has had some success in impeding illicit financial flows. Further success may be achieved if destination countries accept foreign confiscation orders and provide legal and technical assistance to foreign jurisdictions. 27 This would be in consonance with articles 31, 43 and 48 (1) (f) of the United Nations Convention against Corruption. However, a few caveats are in order. First, several jurisdictions still adhere to the requirement that the prosecution must establish guilt beyond a reasonable doubt in criminal cases.28 Second, such reversal also seems to run counter to the due process guarantees contained in the International Covenant on Civil and Political Rights, a point also articulated by Juan Pablo Bohoslavsky with respect to freezing assets or prosecuting those suspected of corruption or of handling or facilitating crime-related financial flows.29 19. Pro-repatriation laws in destination countries. The former President of Haiti, JeanClaude Duvalier, was believed to have amassed over $300 million by skimming government contracts. This money was deposited in Swiss bank accounts. When Duvalier was deposed by popular revolt in 1986, Haiti asked the Swiss authorities to freeze $5 million, but couldn’t secure its return since Haiti failed to mount a legal case. Duvalier 23 24 25 26 27 28 29 See www.fatf-gafi.org/media/fatf/documents/recommendations/pdfs/FATF Recommendations 2003.pdf, p. 14. Article 52 of the United Nations Convention against Corruption echoes this definition but in far less detail. Foreign politically exposed persons are defined as individuals who are or have been entrusted with prominent public functions by a foreign country, for example Heads of State or Government, senior politicians, senior government, judicial or military officials, senior executives of State-owned corporations and important political party officials. Domestic politically exposed persons are individuals who are or have been entrusted domestically with prominent public functions, for example Heads of State or Government, senior politicians, senior government, judicial or military officials, senior executives of State owned-corporations and important political party officials. Financial Action Task Force, FATF Guidance: Politically Exposed Persons (Recommendations 12 and 22) (2013), pp. 4-5. Available at www.fatf-gafi.org/media/fatf/documents/recommendations/Guidance-PEP-Rec1222.pdf. International organization politically exposed persons are persons who are or have been entrusted with a prominent function by an international organization. The term refers to members of senior management or individuals who have been entrusted with equivalent functions, i.e., directors, deputy directors and members of the board or equivalent. While even the 2003 version of the Task Force’s 40 recommendations advised caution in dealings with politically exposed persons, the focus was on foreign politically exposed persons. FATF Guidance, p. 3. Ibid., p. 5. OECD, Illicit Financial Flows from Developing Countries, p. 16. See, for example, the response of Malaysia to the illicit funds questionnaire circulated by the Advisory Committee, available at www.lan.ohchr.org/EN/HRBodies/HRC/AdvisoryCommittee/ Pages/QuestionnairesIllicitFunds.aspx, as well as Human Rights Council resolution 31/22, submitted on behalf of the Group of African States. See his response to the questionnaire. 7