GROUP 2
INTERNATIONAL COOPERATION FOR THE PURPOSE OFCONFISCATING ILLICIT PROFITS AND RECOVERING DAMAGES
Rapporteur: Ms. Charity Matumbi (Zimbabwe)
Co-Rapporteurs: Ms. Anna Dzhavaha (Ukraine)
Mr. Kenichi Nakajima (Japan)
Chairperson
Co-Chairperson
Members

Advisers

Mr. Abdulhamid F. Low
Ms. Anuradha Siriwardhana
Mr. Mohamed Kassem
Mr. Chrispin Khunga
Mr. Dulat Omar
Mr. Westmoreland Ajom
Mr. Khamsone Phimmasone
Mr. Kiminori Nagano
Mr. Matchanboy MatchanovProf. Junichiro Otani
Prof. Masahiro Yamada(Kenya)(Sri Lanka)(Egypt)(Malawi)(Kazakhstan)(Malaysia)(Lao PDR)(Japan)(Uzbekistan)(UNAFEI)(UNAFEI)

I. INTRODUCTION
The world has become a global village, and there is an increase of cases in which the economic activities ofsociety have become international. As a result, the property acquired through corruption crime is concealedin foreign countries. In investigating corruption offences, international cooperation including Mutual Legal
Assistance (MLA) is increasingly important to trace, freeze and forfeit proceeds of corruption crimes.

II. INTERNATIONAL CONVENTIONS
The group noted that all participating countries are State parties and members of the United Nations
Convention against Corruption (UNCAC) and other international conventions.

III. IDENTIFYING AND TRACING FINANCIAL FLOWSAll participating countries have legislation on identifying and tracing financial flows in their domestic
legislation, which empowers them to search, trace assets and money trails.
Good Practice: All participants agreed that it is good practice to liaise with other jurisdictions to obtain
information through informal contacts and affiliate groups. The participants also noted the need to create bilateral and multi-lateral agreements or Memorandums of Understanding (MOU) among member countries toenhance the provision of information and requests.
Challenges: The following issues were identified as challenges: lack of political will, impunity, lack ofprosecution powers in certain countries, lack of trust between agencies in the multi-agency approach,constitutional capacity, determining the location of the funds in the requested state, illegal ways oftransferring money to foreign countries such as hawala and undial, and Financial Intelligence Units (FIU) in
many countries cannot share information without the existence of MOUs with the requesting countries.
Recommendations: The participantsʼ countries should create a strong network and share information
informally to enhance and expedite formal procedures in cases which require international cooperation,
efforts should be made by the different jurisdictions to enlighten the judiciary on the importance of MLA andinternational cooperation in corruption cases, to establish MLA Units within anti-corruption agencies toenhance their knowledge and capacity on the procedures of MLA, make use of informal regionalorganizations like the Stolen Assets Recovery Group (StAR) and Asset Recovery Inter-Agency Network221

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Southern Africa (ARINSA), create Joint Investigation Teams (JIT), cooperate with FIUs, and encourage FIUs
in different jurisdictions to establish MOUs.

IV. FREEZING, SEIZING AND CONFISCATION OF THE PROCEEDS OF
CORRUPTIONGood Practice: Kenya successfully managed to obtain a freezing order in a case involving a public official
who was charged with abuse of office and unexplained wealth. The court ruled that this official hadunexplained wealth, and the official was ordered to pay Kenyan Shillings 75 million, an equivalent of
US $ 750 000.1
Formal and/or informal communication and exchange of operative information ̶ Japanʼs Cooperation
with South Korea; Ukraineʼs cooperation with Switzerland, Latvia and Austria; Zimbabweʼs cooperation withSouth Africa and Botswana, Malaysiaʼs cooperation with Hong Kong, Brunei, Indonesia, Thailand, the UnitedStates, Switzerland and Singapore; Kenyaʼs cooperation with Japan; Kazakhstanʼs cooperation with Ukraine,Sri Lankaʼs cooperation with its neighbouring countries; Malawiʼs MOU with Japan.
Ukraine had success in an international case between Germany, the United States and Latvia, whererequests for freezing orders were facilitated using information from informal contacts which was eventuallyused as the basis for due court process.
Challenges: The Group noted that there are many challenges associated with freezing orders,confiscation and forfeiture orders. There are different legal frameworks for freezing, seizing and confiscationof proceeds of crime from country to country, so we are faced with the conflict of jurisdictions and theabsence of legislation on criminalization of illicit enrichment in some jurisdictions. Confiscation orders can begranted by the courts, but assistance and cooperation may be difficult to obtain from the other jurisdictions.
Strict legislation on bank information and bank secrecy. The issue of off-shore zones is a challenge whenseeking to implement freezing or confiscation orders, especially if there are no treaties or bi-lateralagreements. Lack of political will, political interference, impunity, lack of trust among investigative agencies
when using a multi-agency approach, delays or no responses from requested states due to the diplomatic
bureaucracy stipulated by the law, lack of prosecuting powers for some anti-corruption agencies (Kenya &Zimbabwe), the issue of non-conviction-based confiscation, admissibility of evidence in foreign court
proceedings, translation of MLA documents when countries have different official languages. Determining
the location of the funds in other jurisdictions, the need to establish a link between misappropriated andrequested funds, non-disclosure of suspect funds detected by the requested State, sluggish asset disclosure
proceedings and spelling variations of the names of indicted persons whose assets are to be frozen2.
Recommendations: Create a strong network between participating countries such as a creation of focal
points in their respective countries for providing consultancy on domestic legislation of the requestedcountry. Engage representatives from offshore jurisdictions to participate in training or conferences andseminars on MLA and international cooperation. To strengthen inter-agency cooperation. The AntiCorruption agencies to lobby for enactment of laws to empower them. Some of the participants encouraged
countries to criminalize illicit enrichment.

V. ASSET RECOVERY
Challenges: Countriesʼ reluctance to cooperate in asset recovery because of the prejudice to theireconomies. The absence of a common framework of procedures regarding asset recovery among member
States of UNCAC to ensure successful forfeiture of the proceeds of corruption offences regardless of wherethese proceeds are deposited or transferred. Differences in the legal systems of countries, the absence of nonconviction-based forfeiture/confiscation in some jurisdictions.
Recommendations: Focal points for UNCAC. Creation of alumni UNAFEI network. State parties toArticle by Phillip Muyanga, Daily Nation of 2017 September 21st.
Note Verbal, dated 7 October 2011, from the Permanent Mission of Egypt to the United Nations (Vienna) addressed to theUnited Nations Office on Drugs and Crime, Corruption and Economics Crime Branch CAC/Cosp/2011/13.
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attend Working Group Meetings and the continuous review cycles of UNCAC. Some of the participants
encouraged the adoption of non-conviction-based confiscation.

VI. CONCLUSION
Corruption offences and the laundering of criminal proceeds is a global concern so at the international
level there should be a sincere and extensive intention to cooperate in the field of freezing, seizure and asset
recovery. The need for international cooperation should be emphasized to enable countries to confiscate illicit
proceeds of corruption crimes.

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