The Swiss prosecutor's office announced the seizure of 60 million francs in the accounts of former Russian Minister of Agriculture Elena Skrynnik as part of a criminal investigation into the laundering of illegally acquired funds. Representatives of the Swiss prosecutor's office reported that they contacted Russian law enforcement agencies and asked for assistance in the investigation of the case, but received no response. What should Russian law enforcement agencies do in such circumstances? And how can such assets be returned if their illegal origin is proven?

The mechanism for returning stolen assets has not yet attracted due attention from the subjects of legislative initiative. In 2006, Russia signed the UN Convention against Corruption, including Chapter V of the Convention "Asset Recovery Measures". Russia also committed to implementing the "Core Principles of Beneficial Ownership Transparency" adopted at the G20 summit in Brisbane, Australia in 2014. Control over the financial transactions of political figures, establishing criminal liability for illicit enrichment and asset recovery measures are interconnected and aimed at exposing subjects who use public resources for their own enrichment.

As examples from different countries show, a combination of several factors is necessary for the successful return of assets. First, the will of the government of the country of origin of the assets. An example is the case of the Nigerian dictator, General Sani Abacha. The funds taken out of the country by the general and his relatives were returned only after his death thanks to the joint actions of prosecutors, police and judges of different jurisdictions and the consistently expressed will of the new Nigerian government. Second, the competence of the bodies investigating such cases. Thus, the professionalism and steadfastness of lawyer Baltazar Garzon contributed to the speedy return of the funds taken out of Chile by Pinochet. Third, a high level of international cooperation (see, for example, the blocking of funds of the Peruvian President Fujimori and Defense Minister Montesinos, accused of corruption, by Swiss and American banks). Fourth, the efficiency of the procedural response. In all successful cases, the investigations began immediately after a certain point: the countries to which the stolen funds were transferred carried out some of the necessary legal actions themselves, without waiting for official requests. Experience shows that only a combination of all these factors (or at least the majority) gives a positive effect.

The reasons for the failures in attempts to return assets are rooted, on the one hand, in the lack of desire or qualifications on the part of the investigative bodies of the countries where the funds were stolen, and on the other hand, in the unwillingness of some countries to help in finding and blocking assets on their territory. Thus, the investigation was not conducted or was conducted unsatisfactorily in the Chiluba case (former president of Zambia; the authorities did not seek assistance from other countries, and later dropped all charges), in the Mobutu case (former president of Zaire; no internal investigation was conducted at all), in the Lazarenko case (deputy of the Verkhovna Rada of Ukraine under Yushchenko; no investigation was conducted for more than 10 years, attempts to return assets have been made only recently), in the Suharto case (Indonesian general; the country conducted an investigation, but is not trying to return the funds), in the Alemán case (former president of Nicaragua; the Nicaraguan authorities dropped charges of crimes) and in the Mubarak case (Switzerland repeatedly extends the freeze on the assets of the Egyptian president, waiting for the end of the internal investigation in Egypt).

In some cases, other reasons prevent the return of assets stolen by dictators and corrupt officials. In the Bakiyev case, Kyrgyzstan conducted a successful internal investigation, but the UK and US have shown no desire to return the frozen funds. The US even withdrew its request to extradite Bakiyev from the UK. The money in the Jean-Claude Duvalier case has still not been returned, and Switzerland is drafting new legislation that will change that.

Based on our experience, the general trend among Russian law enforcement officers is a lack of understanding of the principles and idea of returning stolen assets. In other words, our prosecutor's office does not see the need to return resources if the criminal has already been convicted and is serving a criminal sentence.

A major problem is the insufficient use of forfeiture outside of criminal proceedings. Most often, Russian law enforcement officers attempt to return assets after receiving a criminal conviction, despite the fact that the return process requires work to begin long before conviction. Civil forfeiture is insufficiently regulated in Russian legislation and does not allow for its free application in practice.

Russian anti-corruption legislation does not have any specific gaps or shortcomings: to a certain extent, they are inherent in most countries that have ratified the UN Convention against Corruption (including with reservations), but have not implemented its provisions in full.

The cases of former Finance Minister of the Moscow Region Alexey Kuznetsov, Senator of the Federation Council Igor Izmestyev, Alexey Bazhanov, who was Skrynnik’s deputy, and even the case of Boris Berezovsky clearly demonstrate the shortcomings both at the legislative level and at the level of law enforcement.

The confiscation measures provided by law do not allow for the seizure of property in cases where a guilty verdict is impossible for one reason or another - civil confiscation is applicable only to income from antisocial transactions, as well as to declared property whose legal origin has not been proven, at the request of the prosecutor. If the offender has immunity from criminal prosecution, is hiding from justice, has died, or the investigation has not collected enough evidence, confiscation of proceeds from crime is impossible. In fact, the provision of Article 54 of the UN Convention against Corruption on the need to provide a mechanism for confiscation outside of criminal proceedings has not been implemented by Russia, which significantly complicates the return of funds stolen by corrupt officials.

From November 2 to 6, 2015, a UN conference against corruption will be held in St. Petersburg, during which issues of the return of illegally acquired assets will be considered. Recently, Russian authorities have been pursuing a policy of deoffshorization and increasing liability for laundering money obtained by criminal means. I hope that the conference will present arguments that will convince Russian legislators to go further and implement provisions on the return of income.

The author is the chief lawyer of the Transparency International Russia center

How to return stolen goods