There is today universal agreement to the principle that confiscated funds originating from corruption should be returned, as enshrined in Article 51 of UNCAC.
Specifically, UNCAC foresees that such assets are returned to their prior legitimate owner, which, in the case of corruption and misappropriation of state funds, would be the state from which such funds have been stolen (after taking into account the rights of bona fide third parties and possibly the deduction of expenses incurred by the foreign jurisdiction).
In addition, UNCAC foresees that where appropriate, countries involved in returning stolen assets may conclude agreements for the final disposal of confiscated property. Further, there is also a great degree of convergence over the need to put returned assets to good end use and to ensure that they are not stolen again.
Potential roles of CSOs
Against this background, there are a number of roles that civil society can play in the stages immediately before and during the return of confiscated assets originating from corruption and related crimes.
These include providing input to the decision-making process over end use. CSOs are well placed to represent the voice of potential victims of those that were affected by the corruption; they can initiate and contribute towards a national dialogue on the potential end-uses of returned assets.
Participation by CSOs in oversight and monitoring of the use of returned assets can be an effective way to ensuring an adequate level of transparency in the use of returned assets, which in turn should help ensure that confiscated assets are used for their intended purpose and in line with internal legal or otherwise agreed procedures.
In turn, Governments increasingly understand that they have an interest in engaging with CSOs in these matters as such a partnership enhances public trust in the recovery effort.