Andrew Dornbierer*, Asset Recovery Specialist, Basel Institute on Governance and author of the open-access book Illicit Enrichment: A Guide to Laws Targeting Unexplained Wealth.
Illicit enrichment laws are increasingly being recognised as a powerful tool to recover stolen assets. The subject of illicit enrichment, however, sparks more than its fair share of debate.
Even the most fundamental starting point of the subject – how to refer to it – creates discord. When Article 20 of the United Nations Convention Against Corruption (UNCAC) was in its drafting process, delegates struggled to agree on its title. While ‘Illicit Enrichment’ was the eventual winner, alternative names such as ‘Unlawful Enrichment,’ ‘Unexplained Wealth’ or the more dramatic-sounding option ‘Plunder’ were also thrown into the ring at different points.
This drafting process didn’t even cover all the possibilities. Today, depending on the jurisdiction, the concept of illicit enrichment may also be referred to as ‘illegal gains’ (e.g., Kuwait), the possession of ‘unexplained property’ (e.g., Botswana), the possession of ‘unaccounted property’ (e.g., Saint Lucia), ‘unjustified enrichment’ (e.g., Panama), ‘property deemed to be acquired illegally’ (e.g., Nepal) or even ‘liability for corrupt acquisitions’ (e.g., Seychelles).
Moving beyond the name, the actual definition of what can be regarded as ‘illicit enrichment’ (or the acquisition of unexplained wealth, etc.) leads to even further discord.
In theory, an obvious starting point to defining illicit enrichment would be the wording of the UNCAC, which describes illicit enrichment as:
‘…a significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income’.
In reality, however, the description above does not accurately reflect how the concept of illicit enrichment has been interpreted, defined, and legislated .
For instance, while UNCAC requires legislation on the issue to target an ‘increase in assets’, many countries have viewed this interpretation as too narrow. Instead, legislators in these jurisdictions have interpreted illicit enrichment changes in a person’s ‘standard of living’ (e.g., Bhutan), ‘train de vie’ (e.g., Senegal) or ‘modo de vida’ (e.g. São Tomé and Príncipe). This makes sense, as there are many more ways to enjoy an increase in wealth than just parking proceeds of crime in the form of assets.
The UNCAC article also only takes into account the enjoyment of wealth by ‘public officials,’ but legislators in many countries have also decided that this interpretation does not go far enough. For instance, in Rwanda, legislators felt that the offence should apply to ‘any person’ who has illicitly enriched themselves, not just public officials. Liability for illicit enrichment can even be extended to companies under the laws of Bolivia and Mali.
The UNCAC also requests that member states draft an illicit enrichment law in the form of a criminal offence, and this does not accurately reflect the different approaches that can be taken by countries to address and sanction someone for illicitly enriching themselves. While most countries have drafted an illicit enrichment offence, others such as Kenya have instead chosen to enact a civil mechanism through which illicitly acquired wealth can be seized and recovered. Fiji and Peru have even drafted concurrently existing illicit enrichment mechanisms that cover both civil and criminal avenues.
Consequently, in order to conduct a meaningful discussion on the topic and to identify global best practices regarding the investigation, prosecution, and adjudication of illicit enrichment and the drafting of illicit enrichment-focused laws, it is necessary to remember that individuals from different countries may have very different understandings of the concept based on their own domestic contexts.
It is equally important to cut through the varying terminology, the fluctuating scopes of application, and the differing legislative formats, and to just focus on the core objective of all illicit enrichment laws: to recover obviously disproportionate wealth that cannot be justified by reference to lawful income.
Regardless of whether a law refers to unexplained wealth, illicit enrichment, or even plunder, if the law allows a state to recover an amount of wealth from someone purely on the basis that it not been justified by reference their lawful income (and without the need to establish some sort of criminal activity) then any attempts to apply this law should be included in the broader discussion regarding methods to recover illicit enrichment.
Lawmakers and law enforcement officers seeking guidance on these laws – and how they have been drafted and applied differently throughout the world – can turn to the new book “Illicit Enrichment: A Guide to Laws Targeting Unexplained Wealth.” Published by the Basel Institute on Governance in June 2021, it is freely available online to read or download or at cost price for a printed copy.
*Andrew Dornbierer is an Asset Recovery Specialist with the Basel Institute on Governance’s International Centre for Asset Recovery. Andrew has worked with the Legal & Case Consultancy team within the Basel Institute’s International Centre for Asset Recovery (ICAR) since 2012. He has held positions in both Switzerland and Tanzania, where he was embedded for three years with Tanzania’s primary anti-corruption law enforcement agency, the Prevention and Combating of Corruption Bureau.
Andrew’s work with ICAR focuses on financial investigation strategies, illicit enrichment-focused case strategies, and international cooperation in corruption investigations.
Andrew was admitted as a lawyer of the Supreme Court of Western Australia in 2012.