Confiscation

According to article 2 (g) of UNCAC, the term 'confiscation' means the permanent deprivation of property by order of a court or other competent authority.

1.1 Confiscation of the Bribe, and Proceeds and Instrumentalities of Bribery

All international instruments require their signatories to be able to confiscate the bribe (also known as the subject of the bribe in the region) and the proceeds of bribery.
Proceeds include any economic advantage as well as any savings by means of reduced expenditure derived from such offence. They may be a physical object, such as an asset that the briber purchased as a result of a contract awarded by the bribed official. They may also be intangible, such as shares in a company.
To the extent possible under their legal systems, signatories should take measures to enable confiscation of property, equipment or other instrumentalities that were used or were intended to be used in the commission of an offence. This concept is very broad and may cover a wide range of property. For example, if a briber calls an official on his/her mobile phone and offers a bribe, then phone could be subject to confiscation. At the other extreme, if a briber takes his/her private jet to meet an official and delivers the bribe, then the jet might also be subject to confiscation.

1.2 Fines and Confiscation of Equivalent Value

In many cases, the bribe and the proceeds of bribery may not be available for confiscation, e.g. because they have been hidden away or spent, or are in the possession of a bona fide third party. The OECD Convention and Council of  Europe Convention therefore require that parties either confiscate the bribe and the proceeds of bribery, or property of an equivalent value. The OECD Convention provides the further option of monetary sanctions of a comparable effect.

1.3 Confiscation of Converted Proceeds and Benefits Deriving from Proceeds

Criminals often do not leave the proceeds of their crimes in the original form. Instead, they may transform or convert the proceeds for their benefit (e.g. by buying a house) or to hide the origin of the proceeds (i.e., money laundering).
To be effective, legislation must therefore allow for the confiscation of proceeds that have been transformed or converted, in part or in full, into other property.
To fully deprive criminals of the benefits of their crime, it may also be necessary to confiscate income or other benefits derived from the proceeds of crime. For example, a briber may bribe an official in order to obtain a business permit. The direct proceeds of the crime (i.e., the permit) are of relatively low value, while the profits derived from the business operating under the permit may be much greater. The corrupt official may also invest the bribe (e.g. in the stock market) and receive a return of much greater value. Confiscation of the income or return derived from the proceeds is therefore necessary to effectively disgorge the benefits to the briber.

1.4 Confiscation from Third Persons

The object of confiscation may often be in the possession of a third person rather than the briber or a corrupt official. For example, an official may have transferred the proceeds of bribery to a relative, or the bribe may have been paid directly from the briber to a third party beneficiary. To deal with these situations, legislation must allow for confiscation of property from third parties, including legal persons.
Legislation must also distinguish between third parties who have acted in good faith and those who have not. The third party in possession of the asset may have been complicit in the crime or is aware that the asset is the proceeds of crime. Legislation should allow for confiscation of the property from such third parties. On the other hand, a third party may have no connection with the offender and acted in good faith, e.g. when a briber sells an asset that he/she had obtained from a corrupt transaction, and the purchaser has no knowledge of the crime. Confiscation of the property against such a third party would not be justified. Instead, alternative sanctions (such as confiscation of equivalent value or a fine) should be imposed against the briber

1.5 The Requirement of a Conviction and Civil Forfeiture

A common impediment to confiscation is the requirement of a conviction for the offence that gave rise to the proceeds. In some countries, confiscation is possible only when the perpetrator of the crime giving rise to the proceeds is convicted. Confiscation therefore is not possible if the perpetrator has died or fled. These countries should consider removing the requirement of a conviction.
In addition to confiscation of proceeds of bribery in criminal proceedings, the international conventions also contemplate that signatories may seek confiscation through civil proceedings. Confiscation in civil proceedings is often more expedient because it usually requires a lower standard of proof and the conviction of the perpetrator is not necessary. Civil forfeiture is increasingly common in developed countries, but it is has yet to gain popularity among Istanbul Action Plan countries.

1.6 Disposal of Confiscated Assets

The disposal of a confiscated asset is of practical importance. Disposal should be transparent and well-regulated. For example, in the United States, confiscated assets cannot be used to pay officials’ salaries, but they can be liquidated to raise funds for witness protection programmes or drug prevention.
The national legislation of most Istanbul Action Plan countries stipulates that confiscated assets become the property of the state and can be used to remedy damage caused by the crime. However, there are usually no clear or well-developed provisions for the valuation and disposal of confiscated property. Transparent and effective management of assets is also lacking.