A REPORT ON ILLICIT ENRICHMENT ON THE TERRITORY OF VARIOUS STATES HAS BEEN PUBLISHED
The Basel Institute on Governance published an analytical report on August 22, 2021, «Illicit Enrichment: A Guide to Laws Targeting Unexplained Wealth».
Based on an analysis of the legislation of more than 100 countries, the report examines various approaches to defining «illicit enrichment» and existing measures to identify and combat related violations. It also provides a step-by-step guide to collecting and analyzing financial information and evidence in establishing illicit enrichment for investigators.
According to the report, the use of mechanisms to prosecute illegal enrichment can be very useful in the context of combating various crimes, including corruption, as it allows the application of sanctions without establishing the fact of a person's participation in illegal activities, as a result of which appropriate funds could be obtained (enough the fact that such a person owns certain assets, but cannot confirm the legality of their origin).
The first legislative initiatives aimed at establishing responsibility for illicit enrichment appeared in the 50s of the last century (Hong Kong, Philippines), in subsequent years Pakistan, India, Argentina, Egypt, Senegal, Cuba, Turkey, Niger followed their example, and in the late XX - early XXI century, provisions on illicit enrichment appeared in international agreements. After that, the corresponding norms began to be introduced into the legislation of an increasing number of countries. At the same time, although Article 20 of the Convention against Corruption recommends the member states to criminalize illegal enrichment, not all countries, even those that ratified the Convention without exceptions, agreed to use such a solution in their legislation. This is largely due to the fact that the introduction of criminal liability for illegal enrichment, which does not require proof of the fact of previous receipt of illegal proceeds of criminal activity, runs counter to traditional legal thinking that fits into the «crime-punishment» paradigm.
This, however, does not mean that in all countries that have abandoned the criminalization of illicit enrichment, there are no mechanisms to hold accountable for this kind of behavior. For example, some states use an approach in which, in the event of an unjustified increase in assets, a citizen can be brought to civil liability. In the report, both models (criminal and civil) are considered equally. However, the authors of the report classify national laws as regulating illicit enrichment in its basic understanding only if two conditions are met:
- the relevant legislation implies the possibility of applying sanctions for the only fact of an unjustified increase in a person's assets;
- to bring a person to justice, it is not required to provide evidence of the existence of criminal activity as a result of which such assets were obtained.
In report singles out 98 countries that have adopted regulations on illicit enrichment. Most of these countries are located in the Asia-Pacific region and Africa (36 and 35 countries), another 25 – in America, and only 2 countries – in Europe. In most cases, illegal enrichment is regulated by criminal law, a little less often liability is enshrined in civil law.
In the final part of the report, based on the existing jurisprudence, the main arguments against the establishment of responsibility for illicit enrichment are considered, which include, for example:
- unfair shifting of the burden of proof and violation of the principle of the presumption of innocence;
- incompatibility of laws on illegal enrichment with the right to remain silent and not to incriminate oneself.