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Description

International Centre for Asset Recovery

TRACING STOLEN ASSETS A PRACTITIONER’S HANDBOOK

© 2009 Basel Institute on Governance,

International Centre for Asset Recovery Steinenring 60,

Switzerland Phone +41 61 205 55 11,

Fax +41 61 205 55 19 www

[email protected] Cover design by Peter Huppertz,

Basel Institute on Governance All rights reserved

Any views or opinions reflected in this publication are solely those of the individual authors and do not necessarily represent the views or opinions of their respective firms,

or the International Centre for Asset Recovery

All parts of this publication are protected by copyright

Copying and/or transmitting portions or all of this work without permission may be a violation of applicable law

The Basel Institute on Governance encourages dissemination of its work and will normally grant permission readily

For permission to photocopy or reprint any part of this work or any other queries on rights and licenses,

please contact [email protected]

Tracing Stolen Assets: A Practitioner’s Handbook

Table of Contents Tracing Stolen Assets: A Practitioner’s Handbook

Table of Contents MARK PIETH Preface………………………………………………………………………

……………………………9 About the Basel Institute on Governance: Empowerment for the Tracing of Stolen Assets…

…71 STEPHEN BAKER AND ED SHORROCK Gatekeepers,

Corporate Structures and their Role in Money Laundering………………………………………………………………

…81 KEITH OLIVER Civil Interim Measures in England…………………………………………89 MARTIN KORTE AND CHRISTIAN MUTH The Involvement of Private Investigators in Asset Tracing Investigations

……………………………………………………………

…111 YARA ESQUIVEL The United Nations Convention Against Corruption and Asset Recovery: The Trail to Repatriation

Preface Tracing Stolen Assets: A Practitioner’s Handbook

Preface Asset Recovery is a promising strategy against graft,

embezzlement of public funds and corruption

The United Nations Convention against Corruption (UNCAC) and,

the joint initiative by the World Bank and the United Nations Office on Drugs and Crime (UNODC) termed StAR (Stolen Assets Recovery Initiative),

have pushed the issue up the political agenda

Much is being done currently in financial centres to allow for more effective freezing,

mutual legal assistance and repatriation of assets

However,

effective asset recovery starts much earlier

In most cases,

the decisive steps determining success or failure are taken in the very first moments of asset tracing: Ample experience with money laundering tells how easy it is to obscure the traces of looted assets

We have become used to ‘gatekeepers’,

frequently profiting from professional confidentiality (e

lawyers) setting up structures,

often registered in offshore locations,

where the company register is either not public or contains little relevant information about the actual beneficial owners

Such ‘IBCs’ (International Business Cooperations) would then be used to open bank accounts at locations where customer due diligence is not up to world standard,

and where the likelihood of mutual legal assistance is slim

These structures can create a dense smoke screen

Piercing the veil is a formidable task

It involves the cooperation of ‘gatekeepers’ (banks,

financial intermediaries or lawyers),

Financial Intelligence Units (FIUs) and law enforcement agencies as well as public and private forensics specialists

They have to follow up leads,

use various forms of intelligence and cooperate internationally

Technology also has an important role to play in facilitating such cooperation,

employing systematic and proven techniques during an investigation and constructing the money trail in cases involving stolen assets

Obviously,

once ill-gotten gains have been traced to a specific location,

the legal action sets in: restraint or freezing orders are of paramount importance

It is fundamental to ensure that funds can be blocked on a provisional basis in just a few hours after detection

Any jurisdiction missing this target has to be considered a safe haven for those committing graft

Obviously,

the seizure thereafter is a matter for due process in the course of the further proceedings

It is crucial,

that the funds stay frozen while the deliberations continue

At a time,

when knowledge about mutual legal assistance and various options of criminal conviction and non-conviction based confiscation are growing,

this handbook intends to direct the spotlight on a very practical but essential precondition for asset recovery: asset tracing

Prof Dr Mark Pieth President of the Board Basel Institute on Governance

Contributors Tracing Stolen Assets: A Practitioner’s Handbook

Contributors PHYLLIS ATKINSON has been an Advocate of the High Court in South Africa since 1981,

and spent twenty-three years as a Public Prosecutor,

five years of which were served as an Advocate in the Office of the Director of Public Prosecutions and twelve years with the Office for Serious Economic Offences

This office later merged with the Directorate of Special Operations – also known as the Scorpions – where Phyllis was a Deputy Director of Public Prosecutions at the time of her resignation in June 2004

Prior to joining the International Centre for Asset Recovery (ICAR) at the Basel Institute on Governance on 1 June 2009,

she was a Principal at Deloitte Forensic & Dispute Services in South Africa where she played a national role in the Forensic team,

driving growth in cross-border services,

including Anti-Money Laundering and Anti-Corruption training initiatives,

A Certified Fraud Examiner,

Phyllis has been involved in numerous high profile commercial crime investigations and prosecutions over the years,

and compiled numerous requests for mutual legal assistance in the process

She has been actively involved in training for many years,

and currently works as a Senior Asset Recovery Specialist for ICAR,

participating in training interventions to help developing countries recover stolen assets

ALAN BACARESE is a United Kingdom Senior Crown Prosecutor

He spent 14 years prosecuting criminal activity ranging from fraud to murder before transferring to Crown Prosecution Services (CPS) headquarters in London in 2001 to undertake criminal justice policy work and specialised work on human rights

In May 2007,

he was seconded by the CPS to the Basel Institute on Governance’s newly-created International Centre for Asset Recovery (ICAR),

Switzerland,

where he continues to provide legal and practical expertise in the growing field of international asset recovery

STEPHEN BAKER is an English barrister and Jersey advocate

He is a partner of BakerPlatt,

Channel Islands,

financial crime and regulatory matters

Stephen has regularly acted for foreign governments in asset recovery actions and is frequently instructed by Jersey’s Attorney General in complex fraud and money laundering cases,

particularly those with an international and political dimension

YARA ESQUIVEL was a Public Prosecutor at the Costa Rican Office of Economic and Corruption related Crimes from 2000-2006,

where she was in charge of the investigation and trial of grand corruption cases involving 2 former heads of State

In 2006,

she took a position as a regional investigator in the Office of Internal Oversight Services of the United Nations in Kenya,

where she was posted for one year to investigate fraud,

corruption and malfeasance within the various Peace Keeping Missions operating in Africa

She joined the International Centre for Asset Recovery (ICAR) in 2007 as an anti-corruption specialist,

where she worked with various law enforcement agencies from developing countries in strengthening their capacity to investigate corruption,

fraud and money laundering to ultimately recover proceeds of crime

She has delivered training courses and presentations in several international events

Currently,

she is posted at the World Bank as an investigator for the Integrity Vice Presidency,

with the mandate to investigate fraud and corruption in bank projects

Yara has a law degree from the Universidad de Costa Rica,

she participated in the Postgraduate Specialist Program on Investigation and Evidence in the Criminal Process at the Universidad Castilla La Mancha in Spain and is currently writing her master’s thesis on the topic of Asset Recovery for the International Human Rights Law program at Oxford University

Contributors

Tracing of Stolen Assets: A Practitioner’s Handbook

CHARLES GOREDEMA has been with the Cape Town office of the Institute for Security Studies since August 2000

He heads the Organised Crime and Money Laundering Programme

Over the past ten years,

he has been involved in research and networking in the formulation of responses to economic crime,

organised crime and money laundering

He has worked in these areas in southern Africa,

He organises meetings,

seminars and conferences in the region and beyond

Charles has written many articles and reports,

and contributed to books on the subjects above

Charles is currently managing research projects on trends of organised crime and money laundering in Angola,

Botswana,

Lesotho,

Malawi,

Mauritius,

Mozambique,

Namibia,

South Africa,

Swaziland,

Tanzania,

Uganda,

Zambia and Zimbabwe

He holds a Bachelor of Laws degree (University of Zimbabwe) and a Master of Laws degree (University of London)

Charles worked as a prosecutor for seven years,

and as a lecturer in law at three universities in southern Africa for 12 years

MARTIN KORTE is a Senior Consultant with the Ernst & Young Fraud Investigation and Dispute Service Department based in Frankfurt,

Germany

He is specialised in fraud and asset tracing investigations as well as in forensic accounting related issues

Martin's industry focus also includes banking and finance

THOMAS D

LASICH is currently the Head of Training for the Basel Institute on Governance,

International Centre for Asset Recovery (ICAR) section in Switzerland

The Institute provides technical assistance to countries on political corruption and money laundering issues

Tom designs,

creates and manages technical training programs that are delivered by ICAR in countries on all the major continents including Africa,

South America,

a graduate of the University of Santa Clara (California) with a degree in Finance,

has worked in federal law enforcement in the United States (US) conducting financial investigations and presenting money laundering,

anti-corruption and financial investigative technique training programs for 37 years

He began his career as a special agent with the Internal Revenue Service (IRS),

Criminal Investigation,

in 1972 and worked 20 years as a special agent and manager

In 1991 he accepted a position at the Federal Law Enforcement Training Centre (FLETC) as the Assistant Chief of the Financial Fraud Institute

Two years later he moved to Washington DC as a special agent with the Office of the Inspector General,

Resolution Trust Corporation,

a newly formed government agency created to investigate the failed savings and loan industry

In 1996 Tom returned to the IRS,

Criminal Investigation,

as a special agent in the international division

He conducted money laundering and financial investigations of organised crime members,

narcotics syndicates and political figures throughout the US,

Europe and the Pacific Rim

Following his retirement in 1998 from Federal employment,

Tom became a Program Coordinator with the Federal Law Enforcement Training Centre,

Computer and Financial Investigations Division

As the project manager for all High Intensity Financial Crime Areas (HIFCA) training relating to money laundering and asset forfeiture he designed and coordinated training programs throughout the United States,

Botswana (Africa),

Poland,

Russia,

Hungary,

Moldova,

Kuwait,

Kosovo,

Macedonia,

Colombia,

Puerto Rico,

HARI MULUKUTLA is a business information systems professional focusing on governance,

anti-corruption and stolen asset recovery,

providing expertise to both the public and private sectors

advises developing countries on projects to introduce data-driven governance techniques and modernisation of national information technology infrastructures and has experience implementing IT solutions within law enforcement agencies,

Contributors

Tracing of Stolen Assets: A Practitioner’s Handbook

and financial intelligence units

Hari has spoken at international conferences about the importance of information technology and process management within the anticorruption and asset recovery context

Until recently,

he was the head of the IT business development unit at the International Centre for Asset Recovery (ICAR),

Basel Institute on Governance

CHRISTIAN MUTH is a Senior Consultant with the Ernst & Young Fraud Investigation and Dispute Service Department based in Frankfurt,

Germany

Being a former military intelligence officer,

he is today specialised in all intelligence related aspects of fraud and asset tracing investigations

KEITH OLIVER is a Senior Partner at Peters & Peters and heads the firm’s specialist Commercial Litigation/Civil Fraud and Asset Tracing Team

He specialises in international and domestic civil and commercial fraud litigation,

insolvency and trust litigation

Keith is recognised as one of the leading experts in civil fraud and asset tracing with extensive experience at the cutting edge of domestic and international fraud and asset tracing litigation (including the use of emergency procedures (freezing orders,

He is frequently engaged in multi-jurisdictional actions in the USA,

continental Europe and worldwide

MARK PIETH is Professor of Criminal Law and Criminology at the University of Basel,

Switzerland,

and co-founder and Chairman of the Board of the Basel Institute on Governance

From 1989 to 1993,

he headed the section on Economic and Organised Crime in the Swiss Federal Department of Justice and Police

Since 1990,

he has been Chairman of the OECD Working Group on Bribery in International Business Transactions

From 2003 to 2005,

he was a Member of the Independent Inquiry Committee into the Iraq Oil-for-Food Programme by the UN Secretary General

Pieth is also a Member of the Wolfsberg Anti-Money Laundering (AML) Banking Initiative and a Board Member of the World Economic Forum’s Partnering against Corruption Initiative (PACI)

MARKUS J

RÜEGG is an Analyst and IT Officer in the Financial Intelligence Unit,

Principality of Liechtenstein

Since 2001,

Markus has been a member of the Training and IT Working Group of the Egmont Group

Trained in operational crime analysis,

forensic computing and combating cyber crime techniques,

Markus had a long career in law enforcement as an investigator at cantonal level and at federal level as Head of General Crime Unit of the Swiss Federal Criminal Police,

Switzerland

Markus has implemented a number of IT projects and developed training programs internationally for developing countries in the areas of financial intelligence,

tactical and strategic crime analysis

ED SHORROCK,

FCA is Director of Forensic & Regulatory Services at BakerPlatt,

Channel Islands

Ed routinely works with regulators and court appointed officials involved in regulatory,

asset freezing and insolvency matters

Ed is the author of a variety of publications on regulatory matters and lectures on the topic of financial crime at conferences and as part of professional education programs

DANIEL THELESKLAF is a lawyer by profession

After a career in the private sector at Swiss Life and Dresdner Bank,

he joined the Swiss Federal office of Police in 1998 to become the first Director of Switzerland’s FIU

In 2002/2003,

he led the Due Diligence Unit (the AML regulator) in Liechtenstein and,

he has been a board member of Transparency International,

Switzerland

He is now engaged in various anti-money laundering,

counter-terrorist financing and anti-corruption projects and technical assistance missions for the OECD,

In 2008,

he became Co-Director of the Basel Institute on Governance

Contributors

Tracing of Stolen Assets: A Practitioner’s Handbook

ARNO THUERIG is a director of KPMG Forensic in Zurich,

Switzerland

He is an attorney-at-law and holds a master degree in Economic Crime Investigation

He has more than ten years of hands-on experience as examining magistrate (state attorney) of the canton of Zurich with specialization in investigating all forms of economic crimes such as investment fraud,

money laundering offences and in-house delinquency

Empowerment for the tracing of stolen assets Recovering Stolen Assets: A Practitioner’s Handbook

BASEL INSTITUTE ON GOVERNANCE INTERNATIONAL CENTRE FOR ASSET RECOVERY

Empowerment for the tracing of stolen assets The Basel Institute on Governance is an independent non-profit think tank conducting research,

policy development and capacity building in the areas of corporate and public governance,

anti-corruption and asset tracing and recovery

Based in Basel,

Switzerland,

and associated with the University of Basel,

the Institute co-operates with governments and non-government organisations from around the world

Notably,

the Institute also acts as facilitator in debates on delicate corporate governance issues

In this context it co-founded the World Economic Forum’s Partnering against Corruption Initiative and was central to the creation of the anti-money laundering standard of the Wolfsberg Group

The Institute’s International Center for Asset Recovery (ICAR) founded in July 2006 assists authorities in enhancing their capacities to seize,

confiscate and recover the proceeds of corruption and money laundering

For this purpose,

the ICAR trains officials in theoretical and strategic case assistance and facilitates co-operation between law enforcement agencies of different jurisdictions

In support of these activities,

the ICAR operates a web-based knowledge-sharing and training tool,

the Asset Recovery Knowledge Centre (www

Basel Institute on Governance International Centre for Asset Recovery Steinenring 60,

Switzerland Phone +41 61 205 55 11,

Fax +41 61 205 55 19 www

Acknowledgements Recovering Stolen Assets: A Practitioner’s Handbook

Acknowledgements We would like to extend our warm appreciation to the authors for their expert contributions,

kindly submitted at short notice

Without their willingness to accept a tight deadline,

this handbook would not have been completed in time for the Conference of the State Parties to the United Nations Convention against Corruption in November 2009 in Doha,

This handbook draws together the combined skills and experience of practitioners in the field of asset tracing,

creating a platform for knowledge sharing and capacity building

The enthusiasm with which the various authors have shared their experience and expertise is a credit to their commitment and dedication in this particular field of endeavour

Many individuals contributed to the compilation of this handbook

In particular,

Phyllis Atkinson for the Basel Institute on Governance’s International Centre for Asset Recovery (ICAR) deserves special mention and a word of thanks as she bore responsibility for the general oversight,

editing and co-ordination of the publication

Also worthy of mention are Nina Schild,

Katrin Aegler,

Daniela Winkler,

Peter Huppertz and Anja Roth for ICAR whose contribution to the co-ordination of drafts,

formatting and graphic design played a significant role in the successful completion of this handbook

ICAR would not be able to operate without critical seed funding from the Swiss Agency for Development and Co-operation (SDC),

the Government of Liechtenstein and the United Kingdom’s Department for International Development (DFID)

We remain grateful to our funders for their financial support which enables us to undertake a publication of this nature,

among many other projects of equal significance to asset tracing

Daniel Thelesklaf Anne Lugon-Moulin Basel Institute on Governance

List of Acronyms and Abbreviations Tracing Stolen Assets: A Practitioner’s Handbook

List of Acronyms and Abbreviations AML

Anti-Money Laundering

Anajembas

Christian and Amaka Anajemba

Anti-Bribery Convention

Convention on Combating Bribery of Foreign Public Officials in International Transactions

Asset Recovery

Asnanis

Shamdas and Naresh Asnani

African Union

AU Convention

African Union Convention on Preventing and Combating Corruption

Bank Secrecy Act

Claimant Victim(s) of the Fraud or Corruption

Chief Financial Officer

Corporate Intelligence

Case Management System

Council of Europe

Conference of State Parties

Corporate Service Provider

Currency Transaction Report

Defendant Perpetrator(s)

Department for International Development

Designated Non-Financial Businesses and Professions

Economic and Financial Crimes Commission

Egmont Group

Egmont Group of Financial Intelligence Units

European Union

Financial Action Task Force

Financial Crimes Enforcement Network

Financial Intelligence Unit

Association of Law Enforcement Intelligence Analysts

International Business Cooperation

International Center for Asset Recovery at the Basel Institute on Governance

Information and Communication Technology

Citizens’ Identification

Information Technology

Joint Investigation Team

List of Acronyms and Abbreviations Tracing Stolen Assets: A Practitioner’s Handbook

London School of Economics

Mutual Legal Assistance

Mr Alamieyeseigha

Diepreye Alamieyeseigha

Mr Chiluba

Frederick Chiluba

Mr Mobutu

Mobutu Sese Seko

Mr Nwandu

Chief Ezuge Nwandu

Mr Nwude

Emmanuel Odinigwe Nwude

Mr Rautenbach

Billie Rautenbach

Mr Sacaguchi

Nelson Sakaguchi

Mr White

Brian White

Mr Zakharov

Oleg Zakharov

Negotiable Instruments Log

Natural Language Processing

Organisation of American States

Optical Character Recognition

Organisation for Economic Cooperation and Development

Office for Foreign Asset Control

Politically Exposed Person

Prevention of Organised Crime Act (South Africa)

Racketeering Influenced Corrupt Organisations Act

Southern African Development Community

Suspicious Activity Report

Serious Organised Crime Agency (United Kingdom)

Stolen Assets Recovery Initiative

Suspicious Transactions Report

Third Party Accomplices

United Kingdom

United Nations Convention against Corruption

United Nations Office on Drugs and Crime

United Nations Convention on Transnational Organised Crime

United States of America

United Nations Convention against Illicit Trafficking in Drugs and Psychotropic Substances

Introduction Recovering Stolen Assets: A Practitioner’s Handbook

PHYLLIS ATKINSON*

Introduction Corruption generates billions of dollars each year

A large portion of the assets acquired through acts of corruption can never be recovered by victim countries for the simple reason: it was not possible to locate them

Corrupt officials and bribe payers,

often multi-national companies,

frequently use the opportunities presented by financial services providers and so-called ‘gatekeepers’ to conceal and enjoy the proceeds of their unlawful activities

Today’s financial centres – the cities where big financial transactions are done and an array of financial products are traded – include not only long-established places such as New York,

London and Tokyo but also a growing number of newer financial hubs in Asia,

The profits generated by crime are often transferred to financial centres in an attempt to thwart or complicate efforts by law enforcement agencies to identify and trace assets acquired in the process

The success of public corruption,

money laundering and most financial crime investigations,

depends largely upon the criminal investigator’s ability to track the ownership trail of money and other assets

Proceeds of crime represent criminal income

They manifest themselves as assets,

some of which are the object of the crime itself,

However,

in more complex financial crimes,

the asset to be linked to the offence is more likely to be the product of an intervening transaction and is in a fungible form

Tracing the proceeds of crime is premised on the assumption that through transformation,

the origin of assets as criminal income can be concealed,

and they can be easily and speedily moved between locations,

They can be mingled with others and converted into other forms

To benefit from profit-generating crime,

criminals are usually forced to launder the proceeds to hide the origins thereof

If the investigator knows how and where to look,

there is always a connection between criminals’ assets and their crimes

In addition to often providing evidence of criminal intent and identifying otherwise unknown accomplices,

tracking the ownership trail may also lead to the seizure of property constituting illegal proceeds

To trace money and property successfully,

the investigator must be equipped to uncover and identify ownership interests often camouflaged by changes in the form and nature of the ownership,

and know how to unravel accurately cleverly disguised control over,

He or she must also know who to approach for information,

where such information can be found,

what can be used to create a financial profile and how to manage the collated information in the most efficient and effective manner

Integrated financial investigation is an essential element of any strategy for targeting proceeds from crime

The investigative process is the core activity,

forming the basis for any asset recovery effort,

asset recovery (particularly at an international level) involving an overlapping of anti-corruption,

anti-money laundering and broader law enforcement agendas

A jurisdiction where funds have been secreted will not confiscate or repatriate the assets to the country of origin unless evidence is presented,

linking them to an illegal activity

This evidence must,

Phyllis Atkinson,

a lawyer by profession and former prosecutor/advocate in South Africa for 23 years,

is a Senior Asset Recovery Specialist with the International Centre for Asset Recovery (ICAR) at the Basel Institute on Governance in Switzerland

Introduction Tracing Stolen Assets: A Practitioner’s Handbook

As a preliminary activity to the recovery of stolen assets,

the identification and tracing of the proceeds of crime and securing the property for final confiscation is an essential part of the process

This is a demanding task which should be conducted in parallel with the investigation of the criminal offence generating material benefit

It requires intense cooperation between law enforcement agencies or those tasked with tracing assets,

Financial Intelligence Units and,

Where an investigation focuses,

on a public official’s receipt of bribes or otherwise unlawful financial enrichment,

this will require the involvement of investigators experienced in gathering and analysing financial evidence

In many instances,

it will also require the involvement of a forensic accounting expert to assist in unraveling complex financial transactions,

and an understanding of the role played by gatekeepers in assisting (sometimes unwittingly) criminals dispose of their criminal profits

In many countries,

criminal investigations are primarily directed towards the investigation of the underlying criminality

It is still comparatively rare for investigators,

as a routine part of the investigation of major proceeds-generating offences,

to ‘follow the money’ and establish what happened to the proceeds

Such investigations undoubtedly need resources,

effective international cooperation

Securing evidence abroad often provides the key to success in a complex,

commercial investigation or those involving other forms of serious crime,

and results in the successful recovery of assets

In many instances,

it also results in the successful prosecution of those involved in organised crime

This unique publication aims to provide practical guidance to the practitioner

In so doing,

it is recognised that the process which leads to recovery or the repatriation of assets,

is divided into four (4) basic phases,

Pre-investigative phase,

during which the investigator verifies the source of the information initiating the investigation and determines its authenticity

If there are inconsistencies in the story or incorrect statements and assumptions,

then the true facts must be established

Investigative phase,

where the proceeds of crime are identified and located and evidence in respect of ownership is collated covering several areas of investigative work in the process,

Mutual Legal Assistance requests to obtain information relating to offshore bank and other records,

and financial investigations to obtain and analyse bank records

The result of this investigation can be a temporary measure (seizure) to secure later confiscation ordered by the court

Judicial phase,

where the accused person/defendant is convicted (or acquitted) and the decision on confiscation is final

Disposal phase,

where the property is actually confiscated and disposed of by the State in accordance with the law,

whilst taking into account international asset sharing

It is recognised that the stages in the asset recovery process include the lead or prelead (or intelligence) which triggers the investigative process aimed at tracing the assets and collating evidence in support of the criminal investigation

The freezing and seizure stages fall largely under the auspices of the judicial system

Finally,

the seized assets are returned to the requesting country

It is not,

the intention of this handbook to deal exhaustively with the entire process in terms of which assets are ultimately forfeited or confiscated

The purpose of this handbook is to provide guidance to the investigator to the point where judicial proceedings aimed at the forfeiture or confiscation of the proceeds of crime may be instituted

In addition to covering the pre-investigative and investigative stages during

Introduction Tracing Stolen Assets: A Practitioner’s Handbook

which information is collated and verified and assets are identified and located,

it also provides guidance aimed at the freezing or seizure of assets

This often becomes a necessity during the tracing phase,

and is a reference to the process in terms of which the transfer,

disposition or movement of property or assets is temporarily prohibited,

or custody or control of property is temporarily assumed on the basis of an order issued by a court or other competent authority

In order to facilitate a final confiscation,

it is necessary to develop efficient investigative and provisional methods to:

Identify

Freeze or seize rapidly property which is liable to confiscation in order to prevent any dealing in,

transfer or disposal of such property and facilitate the confiscation at a later stage

Although this handbook does not purport to cover all such investigative and provisional methods,

it does highlight some of the major steps an investigator needs to take in order to ensure a thorough and effective asset tracing investigation

Information and Communication Technology (ICT) and case management play a crucial role in the criminalisation of corruption and implementation of a process or system to detect,

investigate and prosecute serious cases of corruption,

money laundering and other financial crimes

They play an equally important role during the investigation process aimed more specifically at tracing and recovering assets

Increasingly,

the investigative process of corruption cases,

involves the collation and analysis of large volumes of data

During the financial investigation which inevitably arises as a result of this process,

Without an ICT system,

the financial investigator will be looking for the proverbial ‘needle in a haystack’

Lawyers,

accountants and other similar professionals (the so-called ‘gatekeepers’) are increasingly used in cases where criminals seek to conceal their ill-gotten gains as they are well-placed to facilitate money laundering and the concealment of assets generally due to their knowledge and expertise

requires the investigator to gain an understanding of the types of assistance provided by such professionals,

being the gateway through which criminals often pass to achieve their objectives,

the creation of corporate vehicles or other complex legal arrangements such as trusts

He or she also needs to understand the manner in which the secrecy offered by legal privilege is exploited,

the veneer of respectability is obtained by engaging their services and how corporate vehicles are manipulated and misused in the process

Banking institutions act as obvious gatekeepers for the legitimate financial system

It is usually through their vigilance that the system can be protected from providing organised crime syndicates or terrorists with the mechanism for concealing the proceeds of illicit and corrupt activity

Although they play a crucial role in the prevention,

detection and reporting of money laundering,

there is an increasing focus on non-banking and even non-financial institutions as they too are used by money launderers,

seeking to invent ingenious means of enjoying their ill-gotten gains

Persons and/or entities other than banking institutions such as legal professionals,

moved to ‘centre stage’ in the fight against money laundering,

Cross border criminal activities demand international cooperation during the investigation and proceedings aimed ultimately at the confiscation of the proceeds of

Introduction

Tracing Stolen Assets: A Practitioner’s Handbook

International cooperation should facilitate the provision of investigative assistance in identifying and tracing property,

obtaining documents and enforcing provisional measures aimed at freezing or seizing the proceeds of crime

Knowing how to approach an investigation with a transnational component is a vital tool in the toolkit of any investigator tasked with tracing assets

The current international Anti-Money Laundering framework consists of a number of elements of relevance to asset tracing,

the due diligence measures for financial institutions and designated non-financial businesses and professions

Each of these elements should be given due consideration with a view to identifying potential for use by investigators in tracing stolen assets,

and are duly covered by this publication

In conclusion,

this publication presents practitioners’ views on how assets generated by corruptive acts can be traced,

It covers some of the challenges an investigator can expect to encounter when embarking on an asset tracing investigation

It also comprises examples of successful cases,

and provides for practical assistance to investigators (mainly in developing countries) with the focus being on assisting developing countries trace assets concealed in financial centres

Given the fact that many investigations which involve asset tracing focus on fraud as the underlying predicate offence,

lessons to be learnt in this regard have been included in this handbook: for example,

key civil interim measures and remedies available from the English civil court for securing recoveries for a victim of fraud (and corruption or other acquisitive crime) are covered as these remedies are regarded as the lawyers’ ‘Nuclear Weapons’ and provide invaluable assistance to the investigator of corruption matters

Properly applied for and used,

freezing property and search orders can put the claimant in the strongest possible position on day one of the proceedings to trace,

secure and recover the proceeds of the claim or fraud (or corruption) upon him,

however that crime has been perpetrated

Recovery of proceeds of crime: observations on practical challenges in sub-Saharan Africa Tracing of Stolen Assets: A Practitioner’s Handbook

CHARLES GOREDEMA*

Recovery of proceeds of crime: observations on practical challenges in sub-Saharan Africa I

Introduction

Proceeds of economic crime comprise the following: ‘Property derived or realised directly or indirectly from a (serious) crime,

(the initial criminal proceeds) and includes property resulting from the conversion or transformation of the initial criminal proceeds (secondary criminal proceeds) and income,

capital or other economic gains derived from either the initial criminal or the secondary criminal proceeds

Numerous forms of predatory crimes yield proceeds,

some of which are the object of the crime itself,

while others are the result of intervening transactions that may conceal the connection to the crime

Initial proceeds can be mingled with others and converted into secondary forms

Furthermore,

criminal assets can be speedily moved between places,

This often complicates the task of identifying proceeds of crime for the victim or for any other claimant,

and is a basic challenge in this area

This chapter examines recurrent hurdles which make the recovery of proceeds of crime an enduring issue in the contemporary implementation of criminal justice and economic policy

It explores them from the standpoint of both the victim/claimant in a predatory crime situation and an investigator/prosecutor acting in a representative capacity

In his book Accounting Guide to Asset Tracing,

Dave Melton defines asset tracing in the context of divorce proceedings as ‘an accounting process that traces an asset from its separate property beginnings through all of its mutations and demonstrates that the resulting asset in existence at the date of divorce is either separate,

The definition can be adapted for investigative processes into proceeds of crimes,

money laundering and corruption

Tracing proceeds of crime involves identifying assets with or from their criminal origins,

to the eventual form and state in which they exist at the time they are located

During mutation,

proceeds mingle with lawfully accrued resources and can diminish or grow in quantity or appreciate in value

Charles Goredema heads the Organised Crime and Money Laundering Programme at the Institute for Security Studies in Cape Town,

South Africa

He has been involved in research and networking in the formulation of responses to economic crime and money laundering over the past 10 years

This definition is paraphrased from several criminal statutes,

including the Serious Offences (Confiscation of Proceeds) Act (Zimbabwe) and the Prevention of Money Laundering Bill (Malawi)

Chapter 1 of the book can be accessed at www

htm (accessed on 18 October 2005)

Recovery of proceeds of crime: observations on practical challenges in sub-Saharan Africa

Tracing of Stolen Assets: A Practitioner’s Handbook

In a joint report to launch the Stolen Assets Recovery Initiative in 20073,

the United Nations Office on Drugs and Crime (UNODC) and the World Bank summed up the formidable challenges still encountered in locating and retrieving proceeds of crime

This is particularly so where proceeds of corruption by political and economic elites are involved,

or where the proceeds have been moved across borders

State responses to corruption,

and to the transnational movement of proceeds of crime are not always easy to activate or coordinate

Policy makers and law enforcement agencies are aware that tracing the proceeds of crime,

whether the crimes are organised or not,

can be stifled by money laundering techniques

This is,

part of the reason for the ascendancy of anti-money laundering measures up the scale of global priority issues

Since the advent of the United Nations Convention against Narcotics and Psychotropic Substances (1988),

measures to detect and retrieve proceeds of crime have been accorded prominence

The emphasis was repeated for a broader range of crimes in the United Nations Convention against Transnational Organised Crime (2000)

The regional Southern African Development Community (SADC) Protocol Against Corruption (2001) adopted this approach for proceeds of corruption,

as did the African Union Convention on Preventing and Combating Corruption and Related Activities: (2003) and the United Nations Convention against Corruption (UNCAC) (2003)

The role of confiscation regimes in anti-money laundering mechanisms is also not questionable

At the same time,

the attention devoted to effective strategies and laws to trace proceeds of crime in sub-Saharan Africa is still inadequate

This chapter discusses some of the key challenges in establishing effective systems,

and highlights the manner in which these challenges manifest themselves in the daily experiences of the victim or investigator

It argues that some of the most persistent challenges are policy-related

The final section points to some milestones that have been achieved in the sub-region and elsewhere,

with a view to drawing lessons for the evolution of this aspect of combating economic crime

Who has an interest in tracing and retrieving the proceeds of crime

magnitude and perhaps the way in which criminal income integrates into the economy,

depend on the nature of the crime from which it is derived

Economic crime analysts draw a distinction between predatory crime and market-based (or related) crime

The categorisation is admittedly woven around stereotypes but it is useful

At its simplest,

predatory crime involves: ‘the redistribution of existing wealth

The transfers are bilateral,

involving victim and perpetrator… (and) the transfers are involuntary,

commonly using force or the threat of force,

The victims (individuals,

institutions or corporations) are readily identifiable

The losses are also simple to determine – a robbed (or defrauded) person,

institution or corporation can point to specific money and property lost

Classic instances of predatory crime are robbery and fraud

The victims of predatory crime are usually,

but not always readily identifiable

Cases of grand corruption occasionally raise victim-identification challenges

The report is accessible on the website of the World Bank at www

R T Naylor (2002),

Wages of crime,

Cornell University Press,

252–3

Recovery of proceeds of crime: observations on practical challenges in sub-Saharan Africa

Tracing of Stolen Assets: A Practitioner’s Handbook

Market-based crimes,

on the other hand: ‘involve the production and distribution of new goods and services that happen to be illegal by their very nature

The exchanges are multilateral,

much like legitimate market transactions,

involving (among others) producers,

retailers and money managers on the supply side and final consumers on the demand side

Because the transfers are voluntary,

it is often difficult to define a victim,

unless it is some abstract construct like ‘society’

Therefore,

there are no definable losses to any individual from the act itself (although there may be from indirect consequences of the act…)

Against that background,

it is necessary to determine who has an interest in detecting and recovering the proceeds of crime

On that determination may depend the subsequent processes pursued,

the difficulties that may arise,

In predatory crime,

the victim of the crime will typically be anxious to get compensation

The interest of the victim may be shared,

anti-money laundering investigators and the courts

For market-based crimes,

the absence of direct victims means that the keenest interest to uncover connections between the crime and its proceeds is held by one mandated agency or another

The latter is mandated to represent the public,

or even ‘society’ or a section of society

There may be a multiplicity of institutions with this role,

or that perceive themselves to have it

They may include police departments,

intelligence agencies and banks

Such ‘victims’ may be classified as representative victims

Whether they can effectively act to recover the proceeds ultimately depends on their capacity – which,

is centred around the extent to which their role is recognised and supported by law

While it cannot eliminate all of the hurdles,

the backing of the law can ease the processes involved in finding proceeds of crime,

regardless of whether the victims are actual or representative

One notable deficiency of legal systems in sub-Saharan Africa is evident with respect to predatory crimes such as grand corruption,

or market-based crimes such as commodity trafficking

It is the failure of states to resolve debilitating contests for the leadership of asset recovery initiatives

The predominant position appears to be the one inherited by most common law countries,

is vested with the leading role

This is often an exclusive role

With the appropriation of many Attorneys-General by political elites that may be implicated in corruption,

there is much pressure to move away from the inherited position

Various alternative models on leadership are emerging but much friction is evident

tends to depend on personalities rather than institutionalised relationships

In the last few years,

many countries have been working on harmonising strategies against corruption and money laundering

The process is incomplete

While it is occurring,

a framework to foster collaboration among the agencies with an interest in the recovery of proceeds of crime is needed

The risk of disparate agencies sabotaging each other is real

In some countries,

the value of recovered assets is ‘credited’ to the recovering agency

At the end of a given year,

the credits may impact on financial rewards to officials

This is intended to create

This was highlighted in Zambia in August 2009,

following the acquittal of the former President,

F Chiluba on corruption charges

The head of the task force that had investigated the case indicated that the task force would appeal against the decision

The Attorney General disagreed,

resulting in the dismissal of the task force head

Recovery of proceeds of crime: observations on practical challenges in sub-Saharan Africa

Tracing of Stolen Assets: A Practitioner’s Handbook

an incentive for industry but it could also motivate officials to be secretive about ongoing investigations and to withhold information from colleagues in other institutions

What are the challenges to retrieval of the proceeds of crime

? It is difficult to identify issues that are solely peculiar to tracing and retrieval of the proceeds of crime and do not arise in relation to other aspects of economic crime

Whether the crime is predatory or market-based,

the proceeds are likely to have been concealed from public view,

either physically or by tampering with documentation constituting the paper trail

Money laundering is intended to conceal the proceeds of crime by various methods

Conventional measures to combat money laundering rely on the identification of the most common methods and the avenues used

As these measures expand in scope and coverage,

so apparently do the innovative concealment mechanisms

Responses to money laundering tend to lag behind typologies of money laundering

One of the reasons for the adoption of a new asset confiscation regime in the Proceeds of Crime Act (2002) in England and Wales was the low level of recovery of proceeds of crime

Levi (2003) has attributed this deficiency to several factors,

They are just as relevant to Africa

He asserts that failure was due to:

Moderate investigative knowledge,

due to the inherent secrecy of the activities and inadequate resource allocation to financial aspects of crime

Inadequate co-ordination and intelligence exchange between police and the revenue department,

due partly to legislative prohibitions on data sharing but also reflecting differences in cultural and policy objectives

Inadequate use made of suspicious transaction reports by the police and customs agencies due to a lack of resources and the inherent difficulty of following up many reports without contacting the accountholder for an explanation

Inadequate powers to detain cash of unexplained origin other than drugs money at borders

These shortcomings pertain to law enforcement agencies,

They would be even worse in respect of personal victims,

as they do not have the necessary capacity to investigate complex crime or the backing of public infrastructure

There is no legal system in Africa that entitles a victim or non-state investigator to invoke the investigative authority of public law enforcement structures,

or to compel private repositories of information to disclose such information

The tendency of criminals to transfer illegal income across borders is well known

This is usually the case when such income is derived from a weak economy,

and is even more likely if the income can be converted to a stronger currency acceptable in the destination country

The asset portfolio attributed to resource plunders by the likes of Mobutu Sese Seko (Mr Mobutu) in Zaire illustrates this

Russell notes that:

Michael Levi (2003),

‘Criminal Asset Stripping’ in A Edwards and P Gill (editors),

Transnational Organised Crime: Perspectives on Global Security,

Recovery of proceeds of crime: observations on practical challenges in sub-Saharan Africa

Tracing of Stolen Assets: A Practitioner’s Handbook

‘His property constellation included a vineyard in Portugal,

a thirty-two room mansion in Switzerland,

a castle in Spain and a magnificent first floor apartment in Paris close to the Arc de Triomphe and within easy walking distance of the furrier who made his leopard-skin hats

The piece de resistance was his marble palace in his home village,

Gbadolite

While the inclination to move proceeds of crime abroad is established and relatively well publicised,

less well-known are the routes of transfer between countries and regions

Even less well-known are the precise ways by which such income is infiltrated into the country of destination

Anecdotal observations in Southern Africa show the following:

That the mode chosen by which to infiltrate proceeds depends on the structural weaknesses identified in the host country,

such as the demand for foreign investment

If record keeping of transactions involving incoming foreign currency is poor or non-existent this will be an incentive

These features affect the risk of detection of illegal income on its entry into the socioeconomic environment,

technically described in money laundering as placement of illegal income (but which could also be integration of illegal income with legitimate income),

a stage referred to in money laundering as layering

A country with no vigilant anti-money laundering regime is likely to have an environment that does not support the tracing and recovery of proceeds of crime of foreign origin

The range of underlying criminal activities from which laundered funds are derived is broad and continually expanding

Illegal income does not have a homogeneous source

It may start off as legitimate income,

as is the case with proceeds of tax evasion,

There is always potential for ambivalence in the way different jurisdictions regard funds acquired in ‘questionable’ circumstances

In Southern Africa,

the utility of controls on the movement of foreign exchange across borders is often called into question

predominantly involving the exchangeable currencies,

The countries which encounter frequent movement of foreign exchange across borders include Angola,

Namibia,

South Africa,

Zimbabwe,

Lesotho,

Tanzania and Malawi

There is also evidence of bulk cash movements between southern African countries and China

There is hardly any evidence of the scrutiny of the source of funds emanating from one country as they are transferred across borders

Informal economies in the sub-region are vast,

with the result that funds smuggled out of one country can be kept and used outside the banking system of the destination country by the smuggler,

or anyone else for that matter

They can be used to purchase an asset,

which is smuggled to the country from which the funds came

The seller can re-smuggle the purchase price to a third country and invest them in,

The frequency with which transactions of this nature occur between South Africa and its neighbours is a matter of speculation but their occurrence is well known

Once in the destination country,

proceeds can be invested in securities,

which are more difficult to trace and far easier to dispose of than real estate

Among the primary challenges to the recovery of the proceeds of crime is the lack (or in some cases,

slow pace) of exchange of crime intelligence among the affected countries

This deficiency affects proceeds of both activities which are universally

Alec Russell (2000),

Big men,

little people: Encounters in Africa,

Pan Books,

London,

The Common Monetary Area pact,

Swaziland,

Lesotho and Namibia,

purports to restrict the transmission of cash across member states’ borders to R 10,000 per crossing

In reality,

there is no enforcement of the prohibition and the limit is frequently violated

Recovery of proceeds of crime: observations on practical challenges in sub-Saharan Africa

Tracing of Stolen Assets: A Practitioner’s Handbook

regarded as criminal and activities whose criminality is a matter of controversy

Transnational mechanisms to track movements of assets between countries are passive rather than pro-active

Whether criminal money will attract the attention of the host country’s authorities depends more on whether they have been alerted to its presence by the source country than on the host country’s own vigilance

The appreciation of the victim that an offence has been committed is as much a critical factor as is their determination to obtain compensation

There is no mechanism to take up cases on behalf of victims of predatory crime without their initiative and involvement

Crimes are sometimes categorised as ‘victimless’ simply because of victim ignorance

The plunder of the economies in Zaire (under Mr Mobutu),

Nigeria (under various military generals) and Zambia (under Frederick Chiluba) were committed without the knowledge of the large sections of the public in those countries

In illicitly enriching themselves,

corrupt political and economic elites almost always elude the tax authorities,10 who might be expected to play a gate-keeping role

The citizens,

often only become aware of the corrupt acts long after their commission,

at a time when the proceeds have been moved across many borders

It is still commonplace in the region for investigative commissions of inquiry to report their findings in secret,

and for the reports to be kept away from the public

The recommendations of commissions established in recent years to investigate fraud and corruption cases in Namibia,

Zimbabwe,

Uganda and Kenya have not been implemented

Recovery of the proceeds of crime broadens the discussion beyond the sub-region

Even if one were to take no account of globalisation,

one would still have to recognise the historical,

trade and economic connections between much