Illicit Enrichment Research Articles

Rules for the transfer of seized property to the management of the Asset Recovery and Management Agency of Ukraine and its return to the owner in the context of ensuring the inviolability of property rights

Having studied the rules for transferring seized property to the management of the Agency for Search and Asset Management of Ukraine and its return to the owner in light of the principle of inviolability of property rights, the author came to the conclusion that these rules should be changed. The special management regime of particularly valuable seized property must be primarily aimed at achieving the purpose of the seizure. For this purpose, it is sufficient merely to establish a prohibition for the owner to use and transfer his/ her property (freezing of the assets) to ensure its unimpeded collection into state income after delivery of a guilty verdict or an illicit enrichment decision. The legitimate interest of the state in preserving the economic value of assets could be satisfied by their owner under the control of the government authorities or by agreeing with him a responsible custodian of the property, whose activities must be limited to maintaining at the initial level the properties of the property that underlie its value. The transfer of seized property to a manager specified by the Asset Recovery and Management Agency of without the consent of the owner, as well as its forced sale, amounts to to the acquisition of the right to free temporary use of someone else’s property to receive income from it or to convert non-monetary property into its monetary value. These measures should be recognized as exceptional and their implementation should be possible if: (1) their owner will not provide financial or other guarantees for the potential recovery of the corresponding sums by the state; (2) their duration is limited to a reasonable period, which must be determined by the investigating judge (court) while making a judgment regarding permission to carry out these measures; (3) they are accompanied by the full responsibility of the state for any negative consequences of these measures, including the consequences of mismanagement of seized assets, which may lead to their unreasonably accelerated wear, lost profits, disclosure of commercial secrets, loss of trust on the part of employees and counterparties, etc. In addition, proceeds from asset management in case of cancellation of seizure of assets must be returned to their owner together with the assets.

Illicit enrichment in Germany: An evaluation of the reformed asset recovery regime's ability to confiscate proceeds of crime

This study examines the effectiveness of Germany's reformed asset recovery regime, which was implemented in 2017, in terms of its ability to confiscate proceeds of crime and whether it qualifies as illicit enrichment legislation. The research utilizes Dornbierer's (2021) definition of illicit enrichment to evaluate the reformed asset recovery law and analyses trends in asset recovery by reviewing data on assets seized and confiscated since 2017. Additionally, the study compares the reformed asset recovery regime to its predecessor to determine whether weaknesses that reduced the effectiveness of the previous framework to confiscate PoC have been addressed, while also evaluating the reformed regime for any potential weaknesses that may hinder its ability to confiscate proceeds of crime. The study concludes that while the reformed regime introduces some elements of illicit enrichment, it does not satisfy the criteria for illicit enrichment legislation. Nonetheless, the reformed regime is more effective in confiscating proceeds of crime, as evidenced by the high value of assets seized since the reform was implemented. Additionally, most of the weaknesses that existed in the previous system have been resolved. However, the research highlights the remaining challenges regarding the confiscation of proceeds implicated in ML, fraud, and corruption, as well as profits from non-criminal offenses. Future studies could explore whether the increased confiscation of assets leads to a decrease in profit-driven crime.

Distinguishing the acceptance of an offer, promise or receipt of an unlawful benefit by an official from related criminal offenses and fraud

One of the foundations of the current anti-corruption policy and institutional reform in the field of fighting corruption is the establishment of criminal liability for criminal offenses in the field of official activities and professional activities related to the provision of public services. The priority area of law enforcement activities in Ukraine is combating corruption offenses committed by public officials, and one of the types is acceptance of an offer, promise or receipt of an unlawful benefit. The article outlines the conceptual aspect of distinguishing acceptance of an offer, promise or receipt of an undue benefit from related corpus delicti of criminal offenses which provide for liability for offenses in the field of official activity and professional activity related to the provision of public services, namely, it contains some similar features to those of related criminal offenses such as illicit enrichment (Article 368-5 of the Criminal Code of Ukraine), abuse of influence (Article 369-2 of the Criminal Code of Ukraine), and conducting of bribery. In addition, attention is drawn to the distinction between acceptance of an offer, promise or receipt of an unlawful benefit and fraud (Article 190 of the Criminal Code of Ukraine). The article focuses on the common and distinctive features of the elements of a criminal offense under Article 368 of the Criminal Code of Ukraine with related elements, namely: bribery of an official of a legal entity of private law regardless of its organizational and legal form (Art. 368-3 of the Criminal Code of Ukraine), bribery of a person providing public services (368-4 of the Criminal Code of Ukraine), illicit enrichment (Article 368-5 of the Criminal Code of Ukraine), abuse of influence (Article 369-2 of the Criminal Code of Ukraine), provocation of bribery (Article 370 of the Criminal Code of Ukraine) and fraud (Article 190 of the Criminal Code of Ukraine). The author emphasizes the criteria of objective and subjective features which allow for the appropriate distinction.

Illicit Enrichment in Corruption Eradication in Indonesia: A Future Strategy

Corruption crimes in Indonesia are on the rise, particularly through illicit enrichment where individuals accumulate wealth outside of legitimate income. Although Indonesia has ratified the United Nations Convention Against Corruption (UNCAC), the specific issue of illicit enrichment outlined in Article 20 has yet to be implemented in national legislation. This article aims to investigate current and potential future strategies to combat such corruption. The research is a normative study using a comparative law approach and corpus-based critical analysis to assess Indonesia's anti-corruption efforts, explore the international standards set by illicit enrichment regulations, and draw lessons from the unexplained wealth laws in the United Kingdom and Australia. This research concludes that Indonesia has ratified UNCAC, but illicit enrichment in Article 20 of UNCAC has not been regulated in the law, so the practice of corruption is still so massive. To overcome this, strategic steps are needed in the future, such as revising the corruption law to include illicit enrichment regulations, optimizing institutions through bureaucratic reform, and activating community participation. Therefore, these three steps are very important in implementing the Illicit Enrichment regulation in advancing the corruption eradication agenda in Indonesia in the future.

Exploring South Africa’s capacity to criminalise illicit enrichment

Exploring South Africa’s capacity to criminalise illicit enrichment

Integration of digital technologies in anti-corruption initiatives in Botswana: lessons from Georgia, Ukraine and South Africa

Purpose This paper aims to explore the potential role of digitalization in reshaping Botswana's assets and liabilities declaration system. Digitalization presents opportunities to not only improve efficiencies in how services are delivered and citizens are engaged but also to integrate innovative ways to combat wicked problems such as illicit enrichment and conflicts of interest in the public service. Design/methodology/approach This qualitative paper adopts an exploratory research design to investigate how digital technologies can be used to enhance anti-corruption reforms in a developing country context. Primary data, focusing on the shortcomings and successes of Botswana’s asset declaration system, were collected from interviews with key policy actors in Botswana’s anti-corruption landscape, whereas secondary data were drawn from documents such as official reports, news and social media reports and available literature on the topics of digitalization and anti-corruption reforms. A comparative case study approach is used, highlighting successes and challenges in the use of electronic disclosure systems in Georgia, Ukraine and South Africa. Findings The analysis provides insights into the potential benefits and challenges associated with the integration of digital technologies in the asset and liability declaration process. The integration of digital technologies in the anti-corruption efforts of Georgia, Ukraine and South Africa has contributed to the development of robust electronic declaration systems. However, political resistance, costs, technical capacity and verification processes are identified as some of the core challenges confronting agencies tasked with implementing asset declaration systems. Research limitations/implications The political and socio-economic contexts in the country case studies presented are distinct, as are the challenges posed by corruption. Although Botswana can gain insights from the implementation experiences of Georgia, Ukraine and South Africa, policymakers and implementers need to take into account these subtleties and their potential influence on the success or failure of a similar system. The research has implications for policy and practice by proposing an alternative approach to the implementation of Botswana’s asset declaration system. This will be of interest to policymakers, anti-corruption activists and scholars. Originality/value To the best of the authors’ knowledge, prior research has not studied the relationship between digitalization and anti-corruption reforms in Botswana. This paper contributes to the dearth of knowledge regarding the role of digitalization as a driver of anti-corruption reforms. The paper informs policy decisions related to the implementation of digital transformation initiatives in line with Botswana’s anti-corruption and digital transformation agendas.

Menakar Urgensi Kriminalisasi Kepemilikan Harta Tidak Wajar melalui Kebijakan Legislasi dalam Upaya Pemberantasan Tindak Pidana Korupsi di Indonesia

Ownership of inappropriate assets by public officials or named illicit enrichment is still a hot issue. Indonesia itself has a wealth reporting instrument for public officials called the State Officials’ Wealth Report (LHKPN) as a means of controlling and supervising the wealth of public officials. In practice, many public officials have unappropriate assets and are suspected to have been obtained illegally, but these assets cannot be taken by the state because they have not been or have been proven to be the proceeds of criminal act. Thus, this research aims to examine the potential for resolving this problem by criminalizing the ownership of improper assets by public officials, which aims to minimize the incidence of state financial losses. Based on the results of the research, it shows that there are at least two alternative ways, namely (a) making the illegal ownership of public officials whose legality is not proven to be one of the criminal offenses of corruption through the revision of the Corruption Law; or (b) formulate and ratify provisions related to illicit enrichment in the Asset Confiscation Bill. The criminalization of illicit enrichment is a form of implementation of the provisions of Article 20 of the United Nations Convention Against Corruption (UNCAC) as ratified by Indonesia with Law Number 7 of 2006 with the aim of preventing corrupt actions by public officials. This research uses a normative research method with a regulatory-legislative approach and a conceptual approach, the results of which are presented in prescriptive form.

Characteristics of Illicit Enrichment as a Corruption Crime

Characteristics of Illicit Enrichment as a Corruption Crime

The Offense of Illicit Enrichment in Spain

The Offense of Illicit Enrichment in Spain

Regulation of Illicit Enrichment and Unexplained Wealth in Indonesia: Challenges and Law Enforcement Strategies in the Context of Eradicating Corruption

Regulation of Illicit Enrichment and Unexplained Wealth in Indonesia: Challenges and Law Enforcement Strategies in the Context of Eradicating Corruption

Urgency and Challenges of Illicit Enrichment Regulation in the Draft Law on Asset Forfeiture in Indonesia

Urgency and Challenges of Illicit Enrichment Regulation in the Draft Law on Asset Forfeiture in Indonesia

Combating modern methods of legalisation (laundering) of the funds obtained by criminal means with the use of cryptocurrency

The problems of combating corruption have not lost their relevance over the years. Tolerant attitudes to corruption as a way to quickly solve everyday problems give rise to new ways of developing illegal activities in various spheres of public life. At the same time, while fully condemning corruption as a means of illicit enrichment, the majority of the population still follows the old path. Consequently, the interests of individuals aimed at enriching themselves by any means, including illegal means, are becoming a counterweight to the development of society.
 Money laundering remains a significant problem in the area of combating corruption. Unfortunately, the methods and means of carrying out illegal activities in order to conceal them and avoid responsibility for their commission are being updated on a daily basis. Successful money laundering requires high intelligence and an understanding of the processes of working with modern financial technologies. One of the areas of money laundering is the use of various types of cryptocurrencies and NFTs. The funds held by the offender go through a complex route before reaching their final destination. Illegally obtained funds introduced into the legal financial system in such a way as to avoid unnecessary questions about the origin of the money, through a significant number of transactions, are integrated into the financial system and can be used for any purpose.
 The current state of research on the development of cryptocurrencies as a tool for money laundering is not sufficiently disclosed at the national level. Most of the scientific works are of foreign origin. The article is aimed at finding ways to improve the current anti-corruption legislation. The author outlines the main features of the development of money laundering schemes using cryptocurrency as an instrument of such schemes. The author defines the main definitional categories of such concepts as “cryptocurrency”, “NFT”, “smurfs”, “drops”, etc. The main shortcomings of the institutional and regulatory mechanism for detecting and investigating this category of offences have been highlighted, taking into account the use of modern financial technologies. The study may be useful in improving legislation in the field of corruption prevention.

Mechanism For Asset Forfeiture In The Money Loundering Criminal Law And Asset Forfeiture Bill (Law Comparison With The United States)

Objective: This paper attempts to compare the law between Indonesia and The United States of America regarding the mechanism of asset forfeiture in the context of criminal law. In Indonesia, several criminal law provisions already regulate the possibility of confiscating and forfeiting the proceeds of criminal acts. However, under these provisions, asset forfeiture can only be carried out after the perpetrator of the criminal act is legally and convincingly proven to have committed a criminal act. The Asset Forfeiture Draft Law the text of which is just about to be submitted to parliament can bridge the norm of illicit enrichment or improperly obtained wealth, which is actually set out in the UN Convention Against Corruption, but not yet in Indonesian law. Theoretical framework: To present Indonesian and U.S. experience in regulating the possibility of confiscating and forfeiting the proceeds and instruments of criminal acts. It takes a complete and comprehensive normative juridical approach to asset forfeiture law, presents theoretical elaboration from international scientific publications, reports, and empirical studies. This paper presents a comparison between Indonesian and United States law regarding the forfeiture of assets resulting from money laundering. The United States has been the initiator of the Non-Conviction Based Asset Forfeiture mechanism. As a result of applying the concept of Non-Conviction Based Asset Forfeiture, the United States has benefited by being able to recover state losses suffered due to corruption without having to go through criminal proceedings. Thus, it has been able to minimize state losses occurring due to corruption. Methodology: There have been many studies examining asset forfeiture in various countries, but no study has been found thus far which adequately describes the norms and implementation of laws Indonesian and United States laws, respectively. It is important for Indonesia to understand the United States’ experience, both normatively as well as empirically. Therefore, the normative juridical approach with comparative study approach serves as a tool to investigate various legal aspects of the two countries. Articles with relevant themes that occur in various countries, including Indonesia and the United States, are included in this study. Results and conclusion: An asset forfeiture mechanism is required in national law which adopts the model of forfeiture of assets resulting from criminal acts through civil law. The implementation of the model of criminal asset forfeiture by the means of civil law is needed for the prompt recovery of state losses without first having to prove the criminal act committed by the perpetrator. Originality/ value: This paper is a comparative study of Indonesian and U.S. law respectively which highlights money laundering and asset forfeiture. This study also demonstrates that the asset forfeiture mechanism applied in the United States of America using Non-Conviction Based Asset Forfeiture is a revolutionary concept in forfeiting the proceeds of crime.

Unmasking Illicit Enrichment: A Comparative Analysis of Wealth Acquisition Under Indonesian, Thailand and Islamic Law

Within the context of both countries, influenced significantly by Islamic legal norms, corruption and illicit enrichment are condemned as violations of justice, honesty, and integrity. In Thailand, where the legal framework for handling illicit enrichment is relatively well-structured, these values can be further integrated to enhance transparency and accountability. Shifting the burden of proof, in line with Islamic ethical principles, can imbue the law enforcement process with a robust moral and social dimension. In Indonesia, where the concept of illicit enrichment is not fully articulated in anti-corruption legislation, these values can serve as a foundation to complement the existing legal framework. The KPK, empowered to monitor officials' wealth, can incorporate these principles into its vetting and investigative mechanisms, reinforcing a values-based approach to corruption prevention and prosecution. Applying Islamic teachings in governance and law can provide an ethical underpinning, fortifying existing legal structures. It entails not only introducing new rules but also nurturing a culture of integrity in society and emphasizing the moral responsibility of public officials. By grounding their legal systems in profound Islamic values, both countries can advance their battle against corruption and illicit enrichment, fortify their legal frameworks, and ultimately promote the development of more transparent and accountable governance.

The Criminalization Of Illicit Enrichment in Combating Corruption in Indonesia

Despite Indonesia's ratification of the United Nations Convention against Corruption, 2003 (UNCAC, 2003), there are still some norms that have not been adequately accommodated by national anti-corruption laws, particularly concerning illicit enrichment. This legal study aims to examine the practical implementation of illicit enrichment as a corruption offense in Indonesia and propose the criminalization of illicit enrichment as a future corruption offense. The research methodology employed is normative juridical, which involves analyzing secondary data, with a focus on literature reviews and relevant legislation. The research findings and discussions indicate that the practice of illicit enrichment has been increasingly prevalent, as evidenced by cases involving defendants Bahasyim Assifie and Dhana Widyatmika, who were charged under different articles, namely Article 12 of the Anti-Corruption Law and Article 3 of the Anti-Money Laundering Law, which differ from the essence of illicit enrichment as outlined in UNCAC, 2003. Considering the enforcement practices, it is imperative to criminalize the act of unlawful enrichment or illicit enrichment through the revision of the Anti-Corruption Law or the Criminal Code.

Improbidade administrativa e um estudo acerca da amplitude e subjetividade do art. 11 da Lei nº 8.429/1992: análise de um recorte jurisprudencial do Tribunal de Justiça de Santa Catarina

Corruption and misconduct in public office, prevention and combat are constant objects of studies about Public Administration, considering the negative impact on the democratic order, public interests and public policies. There is not exactly a legal concept for acts of administrative improbity, but Law No. 8.429/92 – The Administrative Improbity Act – known as LIA, presents a typology so that its configuration can be identified, dividing them into: acts that imply illicit enrichment (art. 9); acts that cause damage to the Treasury (art. 10); and acts that violate the principles of Public Administration (art. 11). The present study is related to the research developed by the research project “Prevention and fight against corruption: the contribution of the systematization of data related to acts of administrative improbity in the jurisprudence of the Court of Justice of Santa Catarina (2015-2017)”, developed by SAPIENTIA – Research Group for the Study of Social and Organizational Transformations. The incidence of the LIA articles was identified, used as grounds for the initial petition of actions of misconduct in public office, with the objective of identifying which of them were more frequent, being the target including the innovations brought by Law No. 14.230/21, which made profound changes to the legal regime for acts of administrative improbity. The relevance of the research is justified by the fact that it corresponds to a period that preceded the Law No. 13.655/18, which included provisions on legal certainty and efficiency in the creation and application of public law in the Introduction to the Norms of Brazilian Act.

Anti-corruption policy in Ukraine – ways of improvement and current state

The article contains a study of the current state of the fight against corruption in Ukraine, the reasons for the adoption of the new Anti-Corruption Strategy 2014-2017, its purpose and effectiveness, the consequences of implementation and provisions that were not implemented. New ways of improving the anti-corruption policy and solving the issue of preventing and countering corruption in Ukraine are proposed. The article analyzes the role of key anti-corruption bodies, such as the National Anti-Corruption Bureau of Ukraine (NABU) and the National Agency for the Prevention of Corruption (NAPC), in the implementation of the anti-corruption strategy.It is noted that these bodies have great potential in uncovering corruption schemes and bringing perpetrators to justice, but need to be strengthened with resources, independence and effective cooperation with other sectors of government.New ways of improving anti-corruption policy and solving the problem of combating corruption in Ukraine are proposed. One of the key aspects is to strengthen legislation, including the adoption and implementation of effective anti-corruption laws and mechanisms. The author emphasizes the need to develop mechanisms of control and supervision over the government, which involves the establishment of independent anti-corruption bodies with the power to investigate and prosecute those involved in corrupt practices.In addition, the article points out the importance of active public participation in the fight against corruption. The involvement of civil society organizations, journalists and active citizens is an important step in ensuring openness, checking the activities of the authorities and identifying corruption cases. It is necessary to create a favorable environment for their activities, ensure their safety and support.Among the new ways to improve anti-corruption policy in Ukraine is the need to strengthen mechanisms for verifying financial declarations of public officials and introduce an electronic declaration system that will ensure greater transparency and make it impossible to conceal illicit enrichment. In addition, speeding up judicial proceedings and ensuring the independence of the courts will be important factors in ensuring effective prosecution of corrupt officials.Overall, addressing the problem of corruption in Ukraine requires a comprehensive approach and long-term efforts by the government, civil society and the international community. Improving the anticorruption policy and implementing the proposed measures will help to increase the effectiveness of anti-corruption efforts, ensure stability and development of Ukraine, and increase public trust in state institutions.

Weak State as a Security Threat: Study Case of El Salvador (2014-2019)

Weak State as a Security Threat: Study Case of El Salvador (2014-2019)

Urgency of Regulate Illicit Enrichment Through of Asset Forfeiture Bill to Corruption Eradication in Indonesia

Urgency of Regulate Illicit Enrichment Through of Asset Forfeiture Bill to Corruption Eradication in Indonesia

The separate aspects of investigation the illegal enrichment in Ukraine

The article examines the interpretation peculiarities of the illicit enrichment in Ukrainian legislation, one of the most common crimes in modern criminology in many countries of the world, but due to its volatility, it is difficult to identify, and therefore, for the prevention of the crime, it is necessary to develop the comprehensive approach with the using of legislative instruments in combination with management tools. Due to the high level of possibility to cover this type of crime up, it is necessary to apply not only for methods of combating illicit enrichment, but also to minimize the reasons that act as the incentive to commit it. The study emphasizes the definition of the term illicit enrichment as the illegal acquisition by an official of assets whose value exceeds legitimate income, the origin of which could not be rationally justified, which has been amended and supplemented by wording throughout the process of its criminalization due to a number of discrepancies with the basic state law. The author identifies the signs by which this type of crime can be identified, namely, the presence of a preliminary intent, the increase in the value of tangible assets which does not correspond to official income, and the absence of the reasonable explanation of the origin of assets. The author considers the expediency of including this phenomenon as a component of the criminal code terminology and a type of criminal offense, as well as establishing a clear distinction between illicit enrichment and other types of corruption crimes. Considerable attention is paid to the choice of methods of punishment for the acquisition of assets whose value contradicts the legitimate income, as well as to certain problematic issues related to the improvement of criminal liability for illicit enrichment. In addition, the author has analyzed the results of the introduction of the institution of recognizing unjustified assets and their recovery into the State's revenue as an effective means of returning illegally acquired assets and an effective way to counteract the illicit enrichment.