Generally speaking, States need to lead the process of recovering stolen assets. However, CSOs can play a determining role in different stages that comprise the asset recovery process.
Their importance in the asset recovery process has been enshrined in UNCAC, which states in its Article 13 that States Parties should promote the active participation of individuals and groups outside the public sector, such as civil society, non-governmental organisations and community based organisations, in the prevention of and the fight against corruption.
This is because the prevention and the fight against corruption is a shared responsibility.
- The Conference of the States Parties (CoSP) to UNCAC, in its session held in Doha in 2009, highlighted that these individuals and groups outside the public sector contribute to a culture of integrity, and encourage the involvement of citizens in the prevention of corruption at the national level.
- Specifically in the region, the Arab Convention Against Corruption, which entered into force in June 2013, considers as one of its aims “to encourage individuals and civil society organizations to take an active part in preventing and fighting corruption” (Article 2 Arab Convention Against Corruption), a mandate that is further defined in Article 11 of the same convention about participation of civil society.
Thus, since the establishment of the UNCAC there has been a strong impetus for CSOs to engage in the efforts of preventing and combating corruption.
This guide outlines numerous ways in which CSOs can contribute actively to the asset recovery process, whilst acknowledging that their work can never substitute the activities that need to be undertaken by the states.
How CSOs engage in asset recovery
CSOs have traditionally engaged in the asset recovery process through awareness raising, research and advocacy. Over time, they have also increasingly assisted states in managing frozen assets or helped with considerations related to the end use of returned assets. Indeed in some cases CSOs may be well positioned to act as facilitator between the involved states and the victims of corruption-related offences.
CSOs have also sometimes been the recipients of returned assets or involved in the monitoring of this end use.
More recently, CSOs have also assisted states in their enforcement efforts, whether by helping identify and investigate corruption-related offences, engaging with whistle-blowers and acting as mediator between whistle-blowers and the judicial apparatus, or by initiating legal action where the legal framework permits such initiative. For instance, Article 35 of UNCAC on compensation for damage offers an avenue for CSOs to initiate legal proceedings in order to obtain such compensation and this has provided the legal basis for some corruption cases.
What CSOs need to be able to assist effectively
For CSOs to act effectively in these areas, CSOs need to act with strategic vision. This includes to identify key partners within state institutions and to carefully assess the risks in the type of engagement they wish to pursue.
CSOs should strive to coordinate their actions across CSO organisations – within borders or at times across them – as well as cooperate with citizens, local communities and the media, in addition to strategic partners in foreign jurisdictions.
Maybe most importantly, there is a need for CSOs to manage their own expectations and be realistic about their capacities. As has been mentioned previously, asset recovery is a complex and time-consuming exercise. It is thus necessary to understand its underlying complexities in each case scenario, and potential risks and pitfalls in the process.
This will help CSOs to take appropriate decisions regarding the focus and timing of their advocacy and awareness raising strategies, and to understand and clearly communicate that while the ultimate goal is to return the stolen assets to their country of origin, this may take considerably more time than wished for, due to the legal intricacies and the need to respect the fundamental principles of the rule of law in concerned jurisdictions. Establishing such realistic outcomes of the activities that can be undertaken also strengthens reliability in the persons and institutions involved.
Against this background, this Guide:
- presents not only areas of engagement but also strategic considerations regarding routes of engagement;
- highlights potential risks and challenges and how these may be mitigated;
- provides real-life examples that help to put CSO action in asset recovery in perspective and manage expectations.