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Asset tracing – between civil and criminal law

How do the owners of misappropriated assets get their money back?

Asset tracing – between civil and criminal law

What are the rules for extraditing suspected criminals in such cases? What role play human rights issues in the extradition relations between two countries? LGP comments on preventing the exploitation of illegal profits by fugitive Offenders.

Dating back to the G20 Hangzhou summit in 2016, the international community is seeking ways to strengthen the fight against corruption while preserving human rights protections such as the non-refoulement principle. Based on the G20 High-Level Principles on Cooperation on Persons Sought for Corruption and Asset Recovery, states have committed themselves to building an approach that is based on the principles of “zero tolerance”, “zero loopholes” and “zero barriers”. However, the realities are more complex. 

In Europe, it is basically the acquis of the European Convention on Human Rights (ECHR), together with the European Court of Human Rights’ jurisprudence, that defines the human rights protection to be observed when it comes to extradition. Unlike the system of the European Arrest Warrant which basically replaced the conventional extradition relations between EU member states, extradition relations with third-countries still follow the traditional pattern. Interestingly, while the European Court of Human Rights holds that the national proceedings in which the decision on an incoming request is decided upon, does not constitute part of criminal proceedings in the requesting state and is therefore not protected by the fair trial guarantees of Article 6 ECHR, the requested state is under an obligation to assess the effects of a positive extradition decision against the likelihood of torture, inhuman or otherwise degrading treatment, or deprivation of a fair trial in the requested state. The basic standard to be observed is defined in Othman (Abu Qatada) vs. The United Kingdom: 

“187. In any examination of whether an applicant faces a real risk of ill-treatment in the country to which he is to be removed, the Court will consider both the general human rights situation in that country and the particular characteristics of the applicant. In a case where assurances have been provided by the receiving State, those assurances constitute a further relevant factor which the Court will consider. However, assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment. There is an obligation to examine whether assurances provide, in their practical application, a sufficient guarantee that the applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time”.

Related to China which over the last couple of years has expended large efforts to increase the return of fugitives and their ill-gotten gains to the homeland, this approach poses serious challenges. On the one hand, the independence of the courts in China is not beyond doubt and the justice system leaves much to be improved. On the other hand, even unrelated human rights incidents which can happen in every country, must not serve as evidence of a generally deplorable human rights situation. 

One so far largely unexplored facet is the role of assurances given by the requesting state. LGP, in advising sovereign clients, has a large experience in developing such assurances and making sure that they are effective. Discussions of this problem will, inter alia, be held at the Fourth International Symposium on Persons Sought for Corruption and Asset Recovery which will be attended by LGP’s Prof. Thomas Kruessmann. The Symposium will be hosted by the Research Center on International Cooperation Regarding Persons Sought for Corruption and Asset Recovery in G20 Member States in Zhuhai, Guangdong Province in April 2020 which is affiliated with Beijing Normal University. 

France and Spain have already ratified extradition treaties with China. Australia in 2017 would have been the first of the socalled “five eyes” intelligence alliance to ratify a similar agreement. The “five eyes” is an alliance comprising the US, the UK, Canada, Australia and New Zealand. However, ratification in Australia failed as the Government was forced to withdraw a legislative proposal over human rights concerns. Against this background, it is even more important to look at diplomatic assurances in extradition relations to make sure that concerns over human rights can be addressed properly. 

In Othman (Abu Qatada) vs. The United Kingdom, the European Court of Human Rights explained that it will assess first, the quality of assurances given and, second, whether, in light of the receiving State’s practices they can be relied upon. In doing so, the Court will have regard, inter alia, to the following factors: 

(i) whether the terms of the assurances have been disclosed to the Court;

(ii) whether the assurances are specific or are general and vague;

(iii) who has given the assurances and whether that person can bind the receiving State;

(iv) if the assurances have been issued by the central government of the receiving State, whether local authorities can be expected to abide by them;

(v) whether the assurances concerns treatment which is legal or illegal in the receiving State;

(vi) whether they have been given by a Contracting State;

(vii) the length and strength of bilateral relations between the sending and receiving States, including the receiving State’s record in abiding by similar assurances;

(viii) whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the applicant’s lawyers;

(ix) whether there is an effective system of protection against torture in the receiving State, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs), and whether it is willing to investigate allegations of torture and to punish those responsible;

(x) whether the applicant has previously been ill-treated in the receiving State; and

(xi) whether the reliability of the assurances has been examined by the domestic courts of the sending/Contracting State.

Human rights defenders have raised concern about the practice of issuing diplomatic assurances, claiming that it is impossible to create “islands of legality”. On the other hand, if the practice of creating such “islands” takes root and there is a sufficient number of them, this may propel the discussion among criminal justice professionals forward and allow for discussion on defects in the general criminal justice system. 

Please see also, by the same author (with Anna Soltanovich), “Refugee status as a bar to extradition? A comparative perspective on Russian and Belarusian Law”, Journal of the Belarusian State University. Law, 2 (2019) 38-45.

Author:

Prof. Dr. Dr. h.c. Thomas Krüßmann LL.M., Senior Expert Counsel bei LANSKY, GANZGER + partner

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