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The issue of repatriating the proceeds of corruption to the countries from which they were stolen has attracted substantial commentary, including in multiple posts on this blog (see here, here, here, here and here). Much of the discussion focuses on whether and how to return funds to countries that still suffer from systemic corruption or outright kleptocracy. In these cases, the risk that the assets, if simply returned, will be stolen again is, in the view of some critics, unacceptably high. In some cases, despite these risks, the government that seized the assets nevertheless repatriates the seized funds directly to the government from which they were originally stolen; the US Department of Justice (DOJ) has done this in several cases, including asset returns to Peru, Italy, and Nicaragua. In other cases, by contrast, the seized funds have been funneled to a local NGO rather than to the government. This was done in the agreement among the United States, Switzerland, and Kazakhstan regarding the transfer of corruption proceeds to Kazakhstan (an agreement which created a new NGO called the BOTA Foundation). This mechanism was also included in the DOJ’s settlement with Equatorial Guinea over the disposition of assets stolen by the President’s son, Teodorin Obiang. Another approach, which we saw in this past February’s trilateral agreement among the United States, Jersey, and Nigeria regarding the return of $308 million in assets stolen by former Nigerian dictator General Sani Abacha (which I discussed at greater length in a previous post), entails the earmarking of the repatriated funds for specific infrastructure projects, coupled with oversight by a yet-to-be-determined independent auditor and yet-to-be-determined independent civil society organizations (CSOs), with both the auditor and the CSOs selected by Nigeria, but subject to a veto by the United States and Jersey.
The inclusion of these various conditions is understandable. Notwithstanding the sovereignty-based objections advanced by the so-called “victim countries”—which often assert that they have an absolute right to the unconditional return of assets stolen from their national treasuries—returning huge sums to corrupt or weak governments without any safeguards would be irresponsible. Nevertheless, there are many pitfalls involved with leaving oversight largely to the victim country government and local CSOs, and the ability of countries like the United States to monitor compliance with the terms of repatriation agreements in foreign countries is limited. The best way to address these concerns is to involve an international institution—such as the World Bank, or possibly one of the regional multilateral development banks—in monitoring the terms of repatriation agreements.
Historically, a Swiss bank has been the bank of choice for corrupt leaders wanting to hide money. The reality is quite different today. Just ask Tunisia’s ousted strong man Ben Ali, deposed Ukrainian president Victor Yanukovich, or the relatives of deceased former Haitian president Jean-Claude Duvalier, of the late Nigerian dictator Sani Abacha, or of Hosni Mubarak, the recently passed Egyptian president. All believed money stolen from their nations’ citizens was safe in a Swiss bank.
At the time, they were not wrong. Dating back to when its secrecy rules protected the wealth of France’s Catholic kings from the prying eyes of nosey Protestant journalists, Swiss law permitted banks to take money with few questions asked and sanctioned those disclosing information about an account or its holder. Strict bank secrecy laws gave the Swiss financial industry an enormous advantage over other financial centers; it’s one reason why today financial services plays an outsized role in the Swiss economy — accounting for 10 percent of the GDP, twice the average of other OECD nations.
As the Duvaliers, Abachas, and Murabanks of the world learned to their chagrin however, over the past decade Swiss policy has made a sharp U-turn. Despite the weight of history and tradition, and the economic interest of so many Swiss citizens, current Swiss policy not only no longer condones the deposit of stolen assets in its banks, it now demands that banks and others in the financial services industry come to the aid of governments searching for money stolen by former rulers and cronies. No other nation today goes to such lengths to help countries recover stolen assets.
Swiss lawyers François Membrez and Matthieu Hösli document this extraordinary change in Swiss policy in How To Return Stolen Assets: The Swiss policy pathway. Just published by the Geneva Centre for Civil and Political Rights, the two explain how Swiss asset recovery law has turned Switzerland from the destination of choice for stolen funds into the least hospitable jurisdiction in the world. The paper is an essential guide to Swiss law on asset recovery and provides a blueprint for other nations wanting nothing to do with stolen assets.
Allegations of torture have dogged the planned return of stolen assets from Switzerland to Uzbekistan for years (here). In a recent interview, a cellmate of one of the alleged torture victims has given the claims new life. And should give Swiss citizens and their government pause before proceeding with any return.
The assets to be returned are the several hundred million dollars in bribes paid to Gulnara Karimova for the grant of mobile phone licenses in Uzbekistan, something within her power as daughter of the country’s then president. She stashed most of the money in Switzerland, and when the scheme was exposed, Swiss prosecutors promptly opened a money laundering case against Gulnara and her accomplices. From the outset, the Swiss government made it clear that, if and when defendants were found guilty, the laundered funds would be returned to Uzbekistan.
A breakthrough came in 2018 when Gayane Avakyan, one of Gulnara’s accomplices, signed a Swiss Summary Penalty Order confessing to her role in the money laundering scheme and giving up any claim to the laundered funds. The order was signed while she was serving time in an Uzbekistan prison, and because of multiple, credible reports that torture is commonly practiced in Uzbek prisons, questions were immediately raised about whether torture or the threat of torture was used to get Avakyan to sign. A prison cellmate now says she was in fact subjected to a particularly harsh form of torture while incarcerated. Continue reading
Gulnara Karimova parlayed her position as daughter of Uzbekistan’s first post-Soviet ruler into an international symbol of kleptocracy. Reviled at home and abroad for vulgar excess, after her father’s death she was sentenced to a long prison term following a sham trial. But most of the billion or so dollars she stole remains beyond the Uzbek government’s reach, tied up in complex litigation principally in Switzerland.
Now, as she recently revealed, she is in negotiations to hand back most of what she stole – in return for her release from one of Uzbekistan’s notorious prison colonies and the right to hang onto to perhaps as much as a hundred million for herself and the lawyers and fixers negotiating the deal. Uzbek citizens and activists are in arms over this blatant attempt by a posterchild for kleptocracy to bribe her way out of prison. In an open letter, civil society activists call on the Swiss government, which would have to accede to this unseemly bargain, to repudiate it. They ask too that other government with claims over some of the assets, and thus possibly some say over the deal, to help kill it.
Allowing a kleptocrat to bribe her way out of jail sets a terrible precedent. Is it one the international community wants to see set? Do Swiss citizens really want their government to be the one setting it? Why is the Swiss government in such a hurry to return dirty money to the Uzbek government? Particularly in the face of opposition from representatives of the real victims of Karimova’s crimes, the citizens of Uzbekistan.
In their letter, the activists outline an alternative to a hasty return, one that would see Karimova held accountable in a real trial for her crimes and the stolen assets returned in ways that would advance the welfare of all Uzbeks. The English version of the letter here, the Russian one here, and the French one here.
In 2012, Kazakhstan and Switzerland agreed to return $48.8 million that Switzerland had confiscated in a money-laundering case involving Kazakh nationals. This is the second time Switzerland has returned stolen assets to Kazakhstan. In the first, out of a fear the funds might be stolen again, the two had created an independent foundation with stringent oversight mechanisms to administer the money (details here). This time the two decided to rely on the World Bank alone to see that returned funds were not misused.
One of the projects being funded is a $12 million grant program to instill a public service ethic in the nation’s youth, and a consortium of Kazakh NGOs has been selected to manage it. Although the consortium only recently began making grants, questions about the integrity of the grant-making process are already being raised. In February, the Corruption and Human Rights Initiative identified several apparent irregularities. Among them: 1) The consortium’s lead NGO is headed by Dariga Nazerbayev, at the time of the award to the consortium she was the daughter of the country’s president and is now Speaker of the Kazakh Senate; 2) The youth wing of the ruling party was awarded a grant for “awareness-raising activities among vulnerable youth groups” across the country in seeming violation of the ban in the World Bank’s charter on political activities; 3) numerous grants have been awarded for an amount just under that which would trigger World Bank review; and 4) program managers have coached grant applicants on how to circumvent Bank procurement rules.
A full report on the irregularities is here. At the request of the Swiss government, the World Bank is said to be investigating.
Today’s guest post is from Dr. Matthew Ayibakuro,director of research and policy at the Africa Network for Environment & Economic Justice (ANEEJ).
On Tuesday, 11 September 2018, Nigeria’s Foreign Minister, Geoffrey Onyeama in a speech delivered at the opening of the 2nd International Conference on Combatting Illicit Financial Flows organized by the Presidential Advisory Committee Against Corruption (PACAC), called out Switzerland for being an accessory to the looting of the country by the former Head of State, Sani Abacha.
He further decried the difficulties faced by Nigeria in repatriating the infamous Abacha loot from Swiss authorities, referring to the process as “daylight robbery”. For stakeholders working on issues of asset recovery from Nigeria and in foreign jurisdictions, these comments give room for some concern. The potential impact of statements like this in the short and long-term can impede the progress made by the asset recovery regime in Nigeria over the last couple of decades. There are obvious reasons for this. Continue reading
Readers of this blog know the Swiss government faces a dilemma in returning several hundred million Swiss francs of stolen assets to Uzbekistan (here and here). Although the current government has taken small steps towards reform, it remains dominated by the same clique of Soviet-era apparatchiks whose corrupt ways were behind the theft of the assets. Returning the money thus runs a high risk that it will go right back to the culprits or their cronies.
At the same time, the Swiss government has an obligation under the UN Convention Against Corruption to return the assets. Moreover, thanks to decades of misrule, living condition for the average Uzbek remain dismal at best. Money for everything from basic education and health programs to investment in public works is desparately needed.
Uzbek civil society now offers a solution to the Swiss dilemma. Acknowledging the reformist leanings of the current government, and wanting to encourage them, civil society proposes that the Swiss government return the funds in tranches. The return would be keyed to progress in realizing the kinds of reforms the government says it is committed to making. Internationally recognized measures would be used to gauge progress.
A phased, conditioned return has two advantages. It offers those in the Uzbek government leverage to persuade reluctant colleagues of the need for change. At the same time, a phased return avoids swamping the government with a massive amount of money its primitive public financial system simply couldn’t manage responsibly.
The proposal appears in a letter to Swiss authorities authored by prominent Uzbek citizen, both those who have had to flee the country to escape political repression and those (anonymously) who remain. The English version is here; a Russian version here. A commentary on the proposal in the Swiss press is here, and background on the circumstance the led to the theft is here.
The Swiss take pride in their nation’s uncompromising defense of human rights. Its diplomats offer unwavering support for the rights of the oppressed in international fora; its NGOs provide generous support to human rights defenders around the world, and as home to the United Nations Human Rights Council and other UN human rights agencies, Geneva is the center of the global discourse on human rights. But if recent press reports are to be believed (here [German] and here [English]), the Swiss government may be ready to ignore gross human rights violations perpetrated by the government of Uzbekistan.
The issue is part of the struggle over how to return the several hundred million dollars that Gulnara Karimova, daughter of its recently deceased dictator, stashed in Switzerland with the help of lackeys Gayane Avakyan and Rustam Madumarov. The monies are allegedly bribes international telecommunications companies paid Karimova to operate in Uzbekistan.
The Uzbek government is seeking their return while Uzbek civil society argues that because the government is so corrupt, the Swiss government should follow the precedent established in a Kazakh case and return the monies directly to the Uzbek people. If the Swiss government does not, and does return the money to the Uzbek government, it will be forced to condone grave human rights abuses Avakyan and Madumarov have suffered at the hands of the Uzbek government. Continue reading
GAB readers know that the Government of Uzbekistan has been pressing countries to return some $1.0 billion under their control which Gulnara Karimova, daughter of the late dictator Islam Karimov, stole through corrupt schemes. They also know that Uzbek civil society has urged a “responsible return,” one that recognizes that despite modest changes since Karimov’s death, Uzbekistan is still ruled by the same close-knit group in charge during Karimov’s time and with the same kleptocratic proclivities. Responding to reports that the Swiss government, which holds several hundred million dollar of Gulnara’s corrupt monies, may soon send these funds back to Uzbekistan with little guarantee they will to go improve the welfare of the Uzbek people, members of Uzbek civil society living in exile wrote the Swiss government today asking it to refrain from any hasty repatriation. Their request is particularly urgent given the evidence they cite that stolen assets Switzerland returned to Kazakhstan through a World Bank program were misused. The request is joined by members of Kazakh civil society members in exile.
OPEN LETTER OF CIVIL SOCIETY ORGANIZATIONS TO THE SWISS GOVERNMENT
We, the undersigned representatives of civil society organizations advocating for transparent and responsible repatriation of assets stolen from the Uzbek people, are urgently calling upon the Swiss government to ensure that any decision regarding the ill-gotten assets of Gulnara Karimova, currently the subject of litigation in several countries, be made with due consideration to the rights and development prospects of the Uzbek people.
We urge the Swiss government not to act hastily and to consider that the promise of reform by the Mirziyoev regime have not yet materialized in practice. Based on all available information we strongly believe that return of these assets without sound conditionalities developed in consultation with major stakeholders, including civil society – which has been in a stranglehold in Uzbekistan for more than two decades – would only further perpetuate corrupt practices in Uzbekistan, leaving the systemic causes of the original criminal conduct untouched. The Swiss government can and should use these assets as an incentive to promote and support the course of reforms in Uzbekistan in the long-term interests of the Uzbek people. Continue reading