Casework and legal analysis

Gather intelligence that help financial intelligence units and investigative and prosecutorial authorities.

Furthermore, casework and legal analysis may allow for CSOs to initiate legal proceedings in relation to stolen assets and those who have stolen them. This may be done through private litigation, provided the concerned jurisdictions grants CSOs legal standing to pursue such actions, or through exposing and revealing stolen assets through whistle- blowers.

Specific measures for whistle-blower protection are called for in Article 33 of UNCAC. Moreover, CSOs may assist in representing victims of economic crimes as well as providing legal assistance to local citizens to file complaints, where these may have legal standing to do so, for instance in accordance with Article 35 of UNCAC on compensation for damage.

In order to undertake these activities, CSOs should make careful consideration and assess risks in relation to the costs of undertaking such proceedings. Especially when intending to contribute to and trigger law enforcement action, close co-ordination with concerned public institutions should be sought whenever possible as issues of evidentiary integrity etc. may be concerned. The activities carried out by CSOs should not amount to taking over the activities of the existing public law enforcement mechanism.

Methods

Objective: Identification and exposure of stolen assets

Method of engagement

Generating useful information and intelligence for law enforcement

Possible actions

  • To collect, verify and expose intelligence/information about the location and origins of potentially stolen assets
  • To co-operate with investigative journalists in your country/region or in the concerned foreign jurisdiction to generate information.

Best practices to increase success and mitigate risk

  • Use only verifiable and identifiable information
  • Collaborate or coordinate with public law enforcement bodies if possible

Resources

CSO example 1: Angola-Russia Debt Deal (2011) – Corruption Watch and Associação Mãos Livres

Corruption Watch, Associação Mãos Livres and a group of Angolan anti-corruption campaigners are taking steps in Switzerland and Angola in relation to the laundering of proceeds of an alleged corrupt deal worth USD 700 million. This scheme allegedly involved Russian oligarch(s) and high-ranking Angolan public officials. Corruption Watch and Associação Mãos Livres have issued a report which revealed improper payments and exposed the alleged fraudulent multi-million dollar transaction in international Angola-Russia debt deal. Furthermore, they have worked with local communities and Angolan citizens to collect information and provided legal assistance to file legal complaints.
More information at http://www.cw-uk.org/angola-russia-report/

Objective: Identification and exposure of stolen assets

Method of engagement

Enabling safe whistleblowing in relation to asset recovery cases

Possible actions

  • Act as a spokesperson for/represent/facilitate the reporting by whistleblowers
  • Raise public awareness through media and other communication channels when a whistleblower is, or is at risk of being, mistreated/his protections are not being respected
  • Provide advice to potential whistleblowers about risks and available protections.

Best practices to increase success and mitigate risk

  • Ensure you are familiar with the relevant legal framework on the protection rights guaranteed to whistleblowers
  • Verify the information provided by whistleblowers as best possible
  • Establish a network of knowledgeable and trusted lawyers who can provide (pro bono) legal assistance to potential whistleblowers

Resources

CSO example 1: Sherpa

Sherpa, one of the first NGO dealing with illicit financial flows and litigation against officials in their own countries, together with the French organisation Survie and the Federation of the Congolese Diaspora, filed in 2007 a case with the Public Prosecutor in Paris against the ruling families of Congo-Brazzaville, Equatorial Guinea and Gabon, alleging that their considerable fortunes, whether in real estate assets or bank accounts, could not have been accrued solely from their public salaries and fees. The main charge in the case is “concealment of misappropriation of public funds”, which is a crime under French Law if there are assets on French soil which have been acquired illegally.

In order to overcome the Public Prosecutor's reluctance in opening an investigation, Transparency International (TI) France and a Gabonese citizen filed in 2008 a civil claim as part of criminal proceedings, with SHERPA’s legal support. The French Cour de Cassation finally ruled in 2010 that TI France’s civil claim could go ahead, and a judicial investigation was launched.

As a result, the investigating magistrates ordered both a search of the Equatorial Guinean President's luxury mansion in Paris, as well as the seizure of some fifteen sports cars belonging to his son. While the President has claimed immunity, the President's son has not appeared before French courts, and a subsequent arrest warrant has been issued in July 2012.

More information at http://www.asso-sherpa.org/

CSO example 2: Government Accountability Project

The Government Accountability Project is a whistleblower protection and advocacy organization that promotes government and corporate accountability by advancing occupational free speech, defending whistleblowers, and empowering citizen activists. The GAP studies current legislation and leads campaigns to enact whistleblower protection laws both domestically and internationally. One of their actions are the Know Your Rights Campaigns, which provide necessary education by establishing a number of resources, including a website, a hotline, pamphlets, and an entire handbook devoted to assisting financial workers questioning whether or not to blow the whistle. Similarly, the GAP informed offshore US oil workers of the protections available to them under federal and state whistleblower laws.

More information at
http://www.whistleblower.org/action-center
http://www.whistleblower.org/program-areas

Objective: Assisting asset recovery related investigations and prosecutions

Method of engagement

Support legal action

Possible actions

  • Assess different legal avenues to file a complaint
  • File complaint(s) on behalf of the victim(s) of economic crime.

Best practices to increase success and mitigate risk

  • Clarify legal standing of CSO organisation in applicable jurisdiction
  • Consider the added value and challenges associated with all avenues
  • Manage the expectations of all parties to a case
  • Assess cost and legal implications for all involved parties
  • Strictly follow legal and evidentiary requirements for evidence collection by CSOs.

Resources

  • Sherpa study on legal standing in G20 studies (forthcoming)

CSO example 1: APDHE vs Theodor Obiang (Equatorial Guinea / Spain)

Asociación Pro Derechos Humenos de España (APHDE) filed a criminal complaint of money laundering upon various members of the Obiang family whom have benefitted from the transfer of money from EQ Guinea oil revenues into private accounts held in Spain. Spanish law grants jurisdiction to Spain in cases where money laundering has taken place in the country, regardless of where initial embezzlement occurred.

More information at http://apdhe.org/

CSO example 2: Open Society Justice Initiative vs Theodor Obiang (Equatorial Guinea / California)

The Open Society Justice Initiative and EG Justice, a US based NGO that promotes human rights and the rule of law in Equatorial Guinea, have been able to draw on their deep knowledge of corruption and human rights abuses in Equatorial Guinea and links to Equatoguinean civil society advocates to provide important assistance to US Department of Justice prosecutors seeking to seize, as alleged corruption proceeds, real and other property belonging to Teodorin Nguema, the son of Equatorial Guinea’s president Obiang. They have found that even while lacking certain coercive powers employed by governmental law enforcement, civil society organizations have, in some respects, important advantages, including mission flexibility, freedom to travel, deep, long-term region experience and expertise, access to evidentiary materials and potential witnesses or information sources, all of which furnish needed complement to the work of law enforcement investigators and prosecutors.

CSO example 3: Bruno Manser Fund (BMF) campaign – Malaysia (Sarawak)/Switzerland

In the context of the Stop Timber Corruption campaign in Sarawak, Malaysia, BMF filed a criminal complaint in Switzerland regarding the laundering of Malaysian timber corruption proceeds. The Swiss Attorney General opened a case, in which the BMF and 255 citizens from the Malaysian state of Sabah are asking the Swiss Federal Criminal Court to be admitted as plaintiffs.

More information at http://www.stop-timber-corruption.org