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« 2014: The Year of the International Whistleblower | Main | Corruption and conflict: By the numbers »
Wednesday
Nov192014

Taking back from the kleptocrats: Asset recovery burdens of proof

Image courtesy of the Stolen Asset Recovery InitiativeCivil, as opposed to criminal, asset forfeiture cases are the subject of heated debates in domestic U.S. law. Many civil libertarians and thoughtful observers of the U.S. legal system raise serious due process concerns when assets are taken without a prior criminal conviction. Civil cases are governed by lower procedural protections than criminal convictions that require proof beyond a reasonable doubt.

Should we be concerned about these difficulties in the context of international asset recovery actions? The recent publication of Public Wrongs, Private Actions, which provides an excellent guide to civil asset recovery actions, has raised the profile of this important question.

Harvard Law Professor Matt Stephenson’s recent posting on the Global Anti-Corruption Blog provides a cogent analysis of the issues. 

Two factors distinguish international asset recovery cases from domestic U.S. civil forfeiture actions, Stephenson points out. First, centralized and high profile federal actions against assets allegedly owned by kleptocrats are pursued by highly competent federal experts as well as subject to greater public scrutiny and debate than local police departments seizing assets prior to any criminal conviction in low profile cases.

I am less sanguine than Professor Stephenson about the argument that elite federal lawyers are ipso facto less likely to overreach than lower status local prosecutors. Perhaps the difference is in our student bodies, since I train more local prosecutors. But I do agree that transparency and media attention for high-level federal cases provide important checks on potential abuses of civil forfeiture actions at the international level.

Second, unlike local police department seizures, any assets recovered do not enrich the agency itself. The proceeds are intended to be returned from the country where the seizure occurred to the nation victimized by embezzling kleptocrats. Here I agree wholeheartedly with Professor Stephenson. Illicit profit motives by the wealthy country are minimized in international asset recovery cases.

Local officials looting their own developing countries stash the assets abroad, usually in desirable locations in developed nation economies. This is the exit plan -- to move the family and clan abroad for a luxurious lifestyle complete with Manhattan or Malibu multi-million dollar real estate, yachts, jets and high fashion Parisian shopping sprees for themselves and all their mistresses.

It is a massive wealth transfer from the poorest of the poor to the most obscenely rich and infamous lifestyles. The developed economies rake in the profits. Because of the dual criminality requirements in many international procedures, there is no chance of criminal convictions where the officials have corrupted their own domestic legal system. Our only hope for justice in many cases are civil actions against the Manhattan or Malibu real estate itself, to return the proceeds as best we can back to their rightful owners.

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Elizabeth Spahn is a contributing editor of the FCPA Blog. She served as professor of law at New England Law | Boston from 1978 until 2014 where she taught anti-corruption law, constitutional law, first amendment law and employment law. She is currently Professor of Law Emerita.