see: http://en.wikipedia.org/wiki/United_Nations_Convention_against_Corruption
see also: http://bharatkalyan97.blogspot.com/2014/06/black-money-scourge-in-india-namo-issue.html
see also: http://bharatkalyan97.blogspot.com/2014/06/black-money-scourge-in-india-namo-issue.html
Asset Recovery (Chapter V, Articles 51–59)
The agreement on asset recovery is considered a major breakthrough and many observers claim that it is one of the reasons why so many developing countries have signed UNCAC, Asset recovery is indeed a very important issue for many developing countries where high-level corruption has plundered the national wealth.
Chapter V incorporates elements intended to prevent illicit transfers and generate records that can be used where illicit transfers eventually have to be traced, frozen, seized and confiscated (Article 52).
Article 54(2)(a) of UNCAC also provides for the provisional freezing or seizing of property where there are sufficient grounds for taking such actions in advance of a formal request being received.
Politically exposed persons
Despite domestic legislation in some countries allowing for the confiscation and forfeiture of proceeds of corruption, it is improvements in finance, transportation, and communications technologies in the 20th century that have made it easier for corrupt leaders and other “Politically Exposed Persons’ to conceal massive amounts of stolen wealth in offshore financial centers. By taking advantage of differences in legal systems, the high costs in coordinating investigations, lack of international cooperation, and bank secrecy in some recipient countries, corrupt officials have been able to preserve much of their loot overseas.
The asset recovery process
Managing the stages of an asset recovery investigation can be extremely time consuming, complex and requires a great deal of resources, expertise, and political will. First, a victim country must succeed in tracing the stolen assets. Second, the victim country must request cooperation from authorities in the jurisdictions where the assets reside to seize the assets; these requests usually come in the form of a Mutual Legal Assistance request or a letter rogatory, though some common law countries allow the filing of a Mareva injunction in civil courts to achieve the same end. Third, legal processes must usually be initiated in the requested country in order to confiscate the assets. Following this, requested authorities must repatriate the assets back to the requesting country.
Lack of political will to enforce recoveries
Lack of political will has been identified repeatedly as one of the stumbling blocks to effective international asset recovery.
While over 130 countries have ratified UNCAC, there still needs to be greater international cooperation and awareness. Twenty countries have signed but not ratified the UNCAC. In other cases, mutual legal assistance requests have not been honored in spite of treaty obligations. There are many examples of cases where international asset recovery would have been possible, if there had been political will. These include: monies in Switzerland frozen that belonged to the former Zaire President Mobutu Sese Seko and against former Kenyan President Daniel arap Moi.
Civil procedures against property (in rem)
An advantage of in rem actions is that it does not require either a civil or criminal conviction against an individual in order to confiscate his/her assets. Instead, guilt is assigned to the property and prosecutors must only prove that the property in question was involved in an illegal activity. Hence, a possible case name for in rem action could be 'United States of America vs. US $100,000 in a Toyota Pickup.' The owner or beneficiary of targeted property must then prove that either that the property was not involved or that he/she provide an innocent owner defense. Examples of in rem legislation can be found in jurisdictions such as the United States, the United Kingdom, the Philippines, Australia, Colombia and Ireland.
Deterrence to future corruption
Several countries, especially economically deprived nations, have endured the brunt of systemic corruption as their public wealth illegally flowed into bank accounts and properties in developed countries and offshore financial centres. Successful conviction of criminals and/or confiscation of their assets creates a strong deterrent for potential corrupt officials that there is no safe haven for hiding illicit wealth.
NaMo Government should enact an in rem ordinance declaring that all illicit wealth held outside Indian financial jurisdiction as STATE PROPERTY.
Indians are required to hold their assets in Indian financial system; any amounts -- funds and assets -- held in excess of the assets that they have disclosed under the relevant India laws are declared as illicit wealth. Such wealth is declared as STATE PROPERTY OF THE UNION OF INDIA with IMMEDIATE EFFECT.
Any country holding such illicit assets of Indian citizens and trusts which include Indian citizens is directed to transfer these assets and funds to Reserve Bank of India with IMMEDIATE EFFECT.
To ensure full disclosure of ownership of investments and funds held in different accounts, all foreign countries are required to submit to Govt. of India, lists of such funds detailing ownership.
Since Participatory notes have been derivative financial instruments which do not meet the requirements of financial propriety requiring the financial institutions to KNOW THE CUSTOMERS and since the Participator Notes ownership is hidden, the system of Participatory Notes is DISCONTINUED WITH IMMEDIATE EFFECT. All funds contained in such notes should revert as State Property of the Union of India.
NaMo, enact an ordinance containing these declarations in a draft to be prepared by Justice Shah SIT.
In your speech to the Nation on August 15, 2014 announce these Ordinance steps for restitution of illicit wealth of Indians held abroad and declare steps for distribution of this wealth to the poor people of India to which the funds rightfully belong, given the development imperative declared as a principle of State Policy under the Directive Principles of State Policy of the Constitution. One immediate application of funds will be to put on fast track the implementation of SC directive for interlinking of rivers as part of the Development imperative of putting in place a National Water Grid assuring 24x7 water supply to every farm and every home.
This is comparable to the justification provided in Bank nationalisation ordinance by Indira Gandhi, the then PM.
The time has come to implement the solemn promise made to the people of Bharat who have presented themselves with Swarajyam Kraanti exemplified by NaMo's assumption of office as Prime Minister of Bharat
S. Kalyanaraman