FORENSIC ACCOUNTING

UNCAC functions as a multilateral treaty for mutual legal assistance.

This is key, as State Parties to UNCAC are not required to send letter
rogatories through the diplomatic channels to foreign authorities. It is
sufficient to send a mutual legal assistance request to the central
authority under the formal requirements listed within this instrument.
The convention has established that mutual legal assistance can be
used, apart from the traditional purposes, for the recovery of assets. The
mutual legal assistance request is subject to some formality, according
to Art. 46. It must clearly establish the identity of the authority making the
request and the subject matter and nature of the investigation. It should
also contain a summary of the relevant facts and a description of the
assistance sought. It must also mention the identity of the people
involved. Finally, it should establish the purpose for which the
information will be used. The letter of request must be sent in a language
acceptable to the authorities of the requested party. The lack of any of
these requirements is reason enough to refuse assistance.
When dealing with mutual legal assistance, there are several aspects
that must be emphasised. The first is the goal of the request. If the goal
is to gather evidence that will later be incorporated into a criminal
process and admitted in court, this evidence must be protected at all
costs. That means that it should be gathered in accordance with the
general principles of criminal law, and the chain of evidence must be
respected. Countries can, and should, include in their requests any
special procedures needed for the gathering of evidence. This is
especially challenging when it comes to interviewing witnesses. The
principle of cross-examination should not be forgotten. UNCAC is
innovative in the sense that it suggests the use of technology to
overcome this problem, and the use of video conferencing is presented
as an option (see Art. 32 of UNCAC). The second aspect to be
considered is dual criminality. Requesting countries must ensure to
qualify the conduct investigated under conduct that is considered a
criminal offence in the requested country. Requested countries should
also remember that if the fact pattern fits conduct considered by it as a
criminal offence, the nomenclature should not matter. Precious time is
wasted when this is overlooked. Finally, the principle of specialty must
be respected. This means that the evidence gathered can only be used
for the purposes described.
 A victimless crime?

Traditionally, corruption offences have been perceived as victimless

crimes. The average person does not feel affected by the funneling of
public monies into the pockets of dishonest public officials, when in
reality corruption hampers development. In fact, corruption offences
affect the life of the individual far more than what is perceived, as it
deviates public funding from social projects, public infrastructure or
general governmental administration. These are crimes that affect
everyone. The UNCAC recognises State Parties themselves as victims
of corruption and as such, they hold the right to recover property that has
been sent overseas.
Art. 53 was designed to ensure that State Parties have in place a wide
range of legal remedies to recognise other State Parties as having legal
standing to initiate civil actions and other direct means to recover illegally
obtained and exported property. These may include:
- As a plaintiff in a civil action. State Parties should review the
requisites for accessing the Courts when the plaintiff is a foreign country,
since in many jurisdictions this may trigger jurisdictional and procedural
issues
- As a party recovering damages caused by criminal offences.
Proceeds from corruption should be recovered only on confiscation
grounds, and State Parties are obliged to enable their Courts to
recognise the rights of victim States Parties to receive compensation or
damages. This is relevant to offences that have caused loss in a
different State Party to which the offence has been tried
- As a third party claiming ownership rights in a confiscation
procedure, being it either civil or criminal. As a victim state may not be
aware of the procedures undertaken, State Parties should consider
notifying the victim country of its right to stand and prove its claim
Once identified, assets must be repatriated. In order to achieve this,
effective international cooperation is a basic requirement, an aspect to
which UNCAC refers in Art. 54. A challenge to this topic is the
recognition of foreign confiscation orders. Traditionally, the element of
extra-territoriality was denied in respect of confiscation orders, as this
implied the nationalisation of private property. However, the trend seems
to be changing.
Art. 54 requires State Parties to adopt procedures that allow the
enforcement of a confiscation order. This could be achieved through the
recognition of the foreign order and direct enforcement, as well as the
institution of new proceedings according to the domestic law to that
effect.
Historically, the proceeds of corruption cases have been recovered
under money laundering charges in the jurisdiction where the proceeds
of crime were hidden. Para. 1(b) of this Art. requires State Parties to
ensure their ability to confiscate the proceeds of foreign predicate
offences when investigating money laundering. This paragraph also
opens the possibility for State Parties to establish proceedings for
confiscating illegally gotten assets, such as an in rem action.

UNCAC recommends the adoption of a remedial procedure for cases in

which a criminal conviction cannot be obtained, i.e., when the defendant
has died, fled, etc. For these cases, the drafting of a civil asset forfeiture
law seems to be the most appropriate solution.

The sum of all elements

As mentioned above, International Cooperation is fundamental in

international asset recovery. Hence, Art. 55 requires the establishment
of an international cooperation regime specifically for the purpose of
confiscation. UNCAC reiterates the importance of the enforcement of
foreign confiscation orders as well as the adoption of preventative
measures while the orders are being enforced.
For the purposes of confiscation, UNCAC requires its signatories to
adopt measures to allow their competent authorities to adopt provisional
measures at the request of another party in order to protect a potential
confiscation, such as the possibility of obtaining a domestic freezing or
seizing order upon request.
Once this has all been taken care of, Art. 57 of UNCAC clearly
establishes the rules under which all recovered assets must be returned
to the requesting country, under three different scenarios.
Para. 2(a) deals with property that proceeds from the embezzlement of
public funds or the laundering of these assets, described by the
convention in Articles 17 and 23. As there is no doubt that the requesting
State is the victim of the offence, the convention establishes that the
 assets must be returned to it. The State, like any other victim, has the
right to demand that the proceeds are returned.
In the case of any other proceeds covered by UNCAC (Para. 2.b), the
requested party will return the assets under the following situations:
- When the requesting State has reasonably established its prior
ownership of the confiscated property (e.g., bribes paid with public
funds)
- When the requested State recognises damage to the requesting
State as a basis for returning the confiscated property (e.g., when the
State has acquired overpriced property in order to conceal an illicit
advantage obtained by one of its officials)
Finally, para. 3(c) provides that in all other cases, priority should be
given to the return of confiscated property to the requesting State when
it will go to its prior legitimate owners or to compensate the victims of the
crime.
It is important to keep in mind that UNCAC provides the guidelines to be
incorporated in the States Parties’ legislation in order to simplify the work
of prosecutors and investigators when working corruption cases.
Asset recovery cannot be isolated. There are several steps that cannot
be skipped. An effective financial investigation will lead to the assets to
be recovered, and give the requested country the reasons for which they
should be repatriated. A thorough knowledge of how to draft mutual legal
assistance requests is also required, as this will speed up the
proceedings overseas and the UNCAC is an efficient tool for requesting
assistance. It is only after a thorough investigation and effective
international cooperation that assets can be confiscated and ultimately
returned. Repatriation can only occur at the end of a strong investigation.