Asset recovery: a Swiss leap forward?

Abstract

Purpose International asset recovery proceedings may be hindered by several obstacles, especially in the case of “failed states” or of states that experience a regime change. In this context, Switzerland, a country with extensive experience in asset recovery, attempted two legislative leaps forward, the first in 2011 and the second in 2016. The purpose of this paper is to critically examine the legislative innovations in Switzerland, with special reference to their strengths, weakness and compatibility with human rights standards. Design/methodology/approach This paper draws on legal scholarship, jurisprudence, reports and other open source data, to analyze two important legislative innovations in Switzerland [Law on the Restitution of Assets of Criminal Origin of 2010 (LRAI) and law on assets of illicit origin (LVP). Findings The two Swiss legislative initiatives that will be examined (LRAI and LVP) are innovative in nature, but serious weaknesses and obstacles to asset recovery remain unaddressed. Despite their flaws, these two legislative innovations can inspire positive change in international and national norms. They can be viewed as part of a work-in-progress for the reinforcement of asset recovery proceedings and international cooperation in this domain. Originality/value Since the new law on asset recovery (LVP) came into force (July 1, 2016), this has been the first study examining the strengths and weaknesses of the adopted text, its compatibility with human rights standards and its potential influence on international standards of asset recovery.

Performance Management Concept Framework of The Corruption Eradication Commission (KPK) in Optimizing State Loss Recovery

“…Several previous studies examine the theme of asset recovery. Some studies describe asset recovery (such as research (Esoimeme, 2020), describe international regulations regarding asset recovery (such as research (Busol, 2020); (Wang, 2020); (Pavlidis, 2017), describes national regulations related to asset recovery (Tromme, 2019a); (Wahyudi, 2019); (Sujono et al, 2017); (Sujono et al, 2017), reformasi kebijakan mengenai pemulihan aset seperti penelitian (Qisa'i, 2020), policy reforms regarding asset recovery such as research (Qisa'i, 2020), strategies to increase the effectiveness, speed, and transparency of Asset Recovery Centers (PPA) ( (Suud, 2020); (Trinchera, 2020). Then there is research linking asset recovery with human rights ( (Allena, 2019); (Supardi, 2018)), analysis of forms, problems, and optimization of recovery from corruption ( (Mansyah, 2018); (Huyen & Giao, 2018); (Danil & Kurniawan, 2017); (Usman, 2016)).…”

Global sanctions against corruption and asset recovery: a European approach

“…Kleptocrats from third countries may find foregoing traveling to the EU easier than losing access to their ill-gotten gains. A third more advanced option is to cover the entire circle of asset recovery, from the asset freeze stage to the repatriation of the corruption proceeds to the country of origin, possibly following the example of the 2017 Swiss Asset Recovery Law [11] (Pavlidis, 2017). Such an enhanced EU Global Magnitsky Act can empower the Council of the EU to issue visa bans, block the assets of foreign PEPs and, in some cases, order the restitution of these assets; thus, going a step further than the sanctions regimes in the USA and the UK.…”

“…In an even more advanced model, an EU Global Magnitsky Act can introduce a reversal of the burden of proof as to the origin of the frozen assets, that is, a presumption of illicit origin that the PEP will need to rebut to avoid confiscation. This will “eliminate the need to follow the full paper-trail linking the acquisition of the assets in question with acts of corruption and misappropriation committed in third countries in political turmoil” (Pavlidis, 2017). To be compatible with human rights standards (Articles 6 and 13 European Convention of Human Rights; Article 47 Charter of Fundamental Rights of the EU) and the relevant jurisprudence of the ECtHR [12], this reversal of the burden of proof needs to respect the right to a fair trial, the right to effective remedies and the principle of proportionality.…”

Tackling money laundering in Tanzania: are private legal practitioners crime enablers or ineffectual and reluctant gatekeepers?

“…The national AML/CTF laws prescribe custodial sentences and impose monetary fines on accused persons convicted of money laundering and/or its predicate offences (Baldwin, 2003; Gallant, 2003; Chukwuemerie, 2006; Sproat, 2009; Nazri et al , 2019). The laws vest national authorities with powers to freeze, confiscate and forfeit funds, properties, assets and instruments used to commit money laundering or its predicate offences (Bell, 2004; Smellie, 2005; Pavlidis, 2017). These municipal laws provide for frameworks that enable mutual legal assistance among national authorities and agencies in investigating money laundering offences, exchanging information, extraditing offenders, tracing, freezing, forfeiting and recovering illicit funds and other assets generated from crimes (Smellie, 2005; Alldridge, 2008; Tsingou, 2010; Popa, 2012).…”