GETTING THE MONEY GETTING THE MONEY BACKBACK
Daniel H. ClamanDaniel H. ClamanSenior Trial AttorneySenior Trial Attorney
U.S. Department of JusticeU.S. Department of Justice
ASSET RECOVERY IN PRACTICE
Montesinos/Venero (Peru)Montesinos/Venero (Peru)– August 2004 repatriation of August 2004 repatriation of
$20.2 million$20.2 million
– Assistance led associates of Assistance led associates of Fujimori/Montesinos/Venero to Fujimori/Montesinos/Venero to voluntarily repatriate voluntarily repatriate substantial additional assetssubstantial additional assets
Byron Jerez (Nicaragua)Byron Jerez (Nicaragua)– December 2004 repatriation of December 2004 repatriation of
$2.7 million to Nicaragua$2.7 million to Nicaragua
– Technical Assistance to Technical Assistance to financial investigatorsfinancial investigators
U.N. CONVENTION AGAINST CORRUPTION
Direct Recovery also available Direct Recovery also available (Article 53) (Article 53)
To return under Article 57, first must To return under Article 57, first must find, restrain, and confiscatefind, restrain, and confiscate
Article 57 – Return and Disposal Article 57 – Return and Disposal
RETURN AND DISPOSAL ARTICLE 57
Disposition governed by the Disposition governed by the Convention and national lawConvention and national law
Must be able to transfer fundsMust be able to transfer funds–Legislative, administrative Legislative, administrative
authorityauthority
RETURN AND DISPOSAL ARTICLE 57
Must ReturnMust Return– Embezzled funds Embezzled funds
– If confiscated by enforcing foreign judgmentIf confiscated by enforcing foreign judgment May Repatriate May Repatriate – other proceeds if ownership or status as victim other proceeds if ownership or status as victim
established and permittedestablished and permitted
– Prior ownersPrior owners Mutual legal assistance exceptions applyMutual legal assistance exceptions apply
RETURN AND DISPOSAL ARTICLE 57
May deduct reasonable expenses May deduct reasonable expenses May conclude other agreements on May conclude other agreements on
dispositiondisposition
G-8 Disposition Paper
Reaffirms UNCAC commitmentReaffirms UNCAC commitment Five PrinciplesFive Principles–Non-BindingNon-Binding
–Recognize special and shared Recognize special and shared responsibilityresponsibility
Annex with optionsAnnex with options
G-8 GENERAL PRINCIPLES
Transparency and accountabilityTransparency and accountability– In transfer and administration In transfer and administration – Prevent corruption in transferPrevent corruption in transfer– Not add burdensNot add burdens
Presumption of TransferPresumption of Transfer– Benefit people of country victim of corrupt Benefit people of country victim of corrupt
officialofficial– Expansive view of restoration – not just Expansive view of restoration – not just
embezzlementembezzlement
G-8 GENERAL PRINCIPLES
Case Specific TreatmentCase Specific Treatment– Different approaches for different circumstancesDifferent approaches for different circumstances
Encourage UNCAC objectives and repair Encourage UNCAC objectives and repair damagedamage– Visibly strengthen anti-corruption institutionsVisibly strengthen anti-corruption institutions– Remedy societal effectsRemedy societal effects– Compensate victimsCompensate victims
G-8 GENERAL PRINCIPLES
Consistency and coordinationConsistency and coordination– Inform of transfersInform of transfers– Avoid duplication and support effective useAvoid duplication and support effective use– Community identified needsCommunity identified needs
Encourage use of an agreementEncourage use of an agreement– Manage expectationsManage expectations– Not tie to unrelated policyNot tie to unrelated policy
Not Benefit to OffendersNot Benefit to Offenders
G-8 MODALITIES
Acknowledge no further proceedings necessaryAcknowledge no further proceedings necessary Prohibit benefit to victimsProhibit benefit to victims Title transferredTitle transferred– Inform of transfersInform of transfers– Avoid duplication and support effective useAvoid duplication and support effective use– Community identified needsCommunity identified needs
Encourage use of an agreementEncourage use of an agreement– Manage expectationsManage expectations– Not tie to unrelated policyNot tie to unrelated policy
Several policy approachesSeveral policy approaches
Daniel H. ClamanSenior Trial Attorney
Asset Forfeiture and Money Laundering Section
U.S. Department of JusticeCriminal Division (AFMLS)Washington, D.C. 20530
Tel. (202) 514-6340Fax (202) 514-5522
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