GETTING THE MONEY GETTING THE MONEY BACKBACK

Daniel H. ClamanDaniel H. ClamanSenior Trial AttorneySenior Trial Attorney

U.S. Department of JusticeU.S. Department of Justice

ASSET RECOVERY IN PRACTICE

Montesinos/Venero (Peru)Montesinos/Venero (Peru)– August 2004 repatriation of August 2004 repatriation of

$20.2 million$20.2 million

– Assistance led associates of Assistance led associates of Fujimori/Montesinos/Venero to Fujimori/Montesinos/Venero to voluntarily repatriate voluntarily repatriate substantial additional assetssubstantial additional assets

Byron Jerez (Nicaragua)Byron Jerez (Nicaragua)– December 2004 repatriation of December 2004 repatriation of

$2.7 million to Nicaragua$2.7 million to Nicaragua

– Technical Assistance to Technical Assistance to financial investigatorsfinancial investigators

U.N. CONVENTION AGAINST CORRUPTION

Direct Recovery also available Direct Recovery also available (Article 53) (Article 53)

To return under Article 57, first must To return under Article 57, first must find, restrain, and confiscatefind, restrain, and confiscate

Article 57 – Return and Disposal Article 57 – Return and Disposal

RETURN AND DISPOSAL ARTICLE 57

Disposition governed by the Disposition governed by the Convention and national lawConvention and national law

Must be able to transfer fundsMust be able to transfer funds–Legislative, administrative Legislative, administrative

authorityauthority

RETURN AND DISPOSAL ARTICLE 57

Must ReturnMust Return– Embezzled funds Embezzled funds

– If confiscated by enforcing foreign judgmentIf confiscated by enforcing foreign judgment May Repatriate May Repatriate – other proceeds if ownership or status as victim other proceeds if ownership or status as victim

established and permittedestablished and permitted

– Prior ownersPrior owners Mutual legal assistance exceptions applyMutual legal assistance exceptions apply

RETURN AND DISPOSAL ARTICLE 57

May deduct reasonable expenses May deduct reasonable expenses May conclude other agreements on May conclude other agreements on

dispositiondisposition

G-8 Disposition Paper

Reaffirms UNCAC commitmentReaffirms UNCAC commitment Five PrinciplesFive Principles–Non-BindingNon-Binding

–Recognize special and shared Recognize special and shared responsibilityresponsibility

Annex with optionsAnnex with options

G-8 GENERAL PRINCIPLES

Transparency and accountabilityTransparency and accountability– In transfer and administration In transfer and administration – Prevent corruption in transferPrevent corruption in transfer– Not add burdensNot add burdens

Presumption of TransferPresumption of Transfer– Benefit people of country victim of corrupt Benefit people of country victim of corrupt

officialofficial– Expansive view of restoration – not just Expansive view of restoration – not just

embezzlementembezzlement

G-8 GENERAL PRINCIPLES

Case Specific TreatmentCase Specific Treatment– Different approaches for different circumstancesDifferent approaches for different circumstances

Encourage UNCAC objectives and repair Encourage UNCAC objectives and repair damagedamage– Visibly strengthen anti-corruption institutionsVisibly strengthen anti-corruption institutions– Remedy societal effectsRemedy societal effects– Compensate victimsCompensate victims

G-8 GENERAL PRINCIPLES

Consistency and coordinationConsistency and coordination– Inform of transfersInform of transfers– Avoid duplication and support effective useAvoid duplication and support effective use– Community identified needsCommunity identified needs

Encourage use of an agreementEncourage use of an agreement– Manage expectationsManage expectations– Not tie to unrelated policyNot tie to unrelated policy

Not Benefit to OffendersNot Benefit to Offenders

G-8 MODALITIES

Acknowledge no further proceedings necessaryAcknowledge no further proceedings necessary Prohibit benefit to victimsProhibit benefit to victims Title transferredTitle transferred– Inform of transfersInform of transfers– Avoid duplication and support effective useAvoid duplication and support effective use– Community identified needsCommunity identified needs

Encourage use of an agreementEncourage use of an agreement– Manage expectationsManage expectations– Not tie to unrelated policyNot tie to unrelated policy

Several policy approachesSeveral policy approaches

Daniel H. ClamanSenior Trial Attorney

Asset Forfeiture and Money Laundering Section

U.S. Department of JusticeCriminal Division (AFMLS)Washington, D.C. 20530

Tel. (202) 514-6340Fax (202) 514-5522

Daniel.Claman@usdoj.gov