Center of Excellence for Reducing the Supply of Illicit Drugs - CdE

Management of Illicit Assets and Financial Flows

Published in October 2022

Contextualization of the theme

The problem of crime and violence has been striking in Latin America in recent decades, a region that has some of the worst indicators in the world in these areas. Plans, actions and projects have been developed in this group of countries with the intention of improving public security in general.

Regarding the role of public institutions in fighting criminal organizations in Brazil, one aspect seems to have gained prominence in the public policy agenda and in society's perception — the decapitalization of these organizations. In other words, the institutions responsible for monitoring and repressing crime have valued actions that result in an effective economic loss aimed at dismantling criminal groups.

It has been increasingly common for police officers responsible for investigating criminal groups to perceive that, after a major drug apprehension, police work must continue in order to seek to hold the “top” of criminal organizations accountable, as well as harm them. groups. In this sense, this chapter seeks to highlight international strategies for decapitalizing crime, in addition to presenting the Brazilian context.

At first, a methodology that has been used by UNODC with the purpose of estimating the size of the illicit market will be presented. If in Brazil it is possible to observe an operational advance in the decapitalization of crime, the country still lacks the development of similar methodologies for the systematization of information and data production, which allows for more accurate estimates regarding the economy moved by criminal activities. This methodology is known as the measurement of “illicit financial flows”.

Next, some promising practices on the topic of asset management seized from crime will be explored. This theme has also gained relevance in Brazil in recent years, being an important area of ​​action of the public power, with the purpose of discouraging crime through resources generated from assets seized from criminal organizations. The CdE recently launched a newsletter on the topic entitled “Drug Traffic Asset Management – ​​Decapitalizing Organized Crime to Strengthen Public Policies in Brazil”¹.

Illicit Financial Flows

Today, the global economy is integrated and legal and illegal financial flows move easily around the world. This notion of extraterritoriality from the perspective of the financial system, based on the legal and political rules of the different States, creates a favorable environment for the manipulation of monetary resources that transit from one place to another (MACHADO, 2017), with the practice being recurrent money laundering² and currency evasion.

Estimates indicate that the global value of the transnational illicit drug market is around 450 and 600 billion dollars (GLOBAL FINANCIAL INTEGRITY, 2017). This figure derives from the size of seizures of the main drugs worldwide (cocaine, amphetamines, marijuana and opioids), registered by the more than 130 countries associated with the United Nations' illicit drug seizure registration protocol.

To have a dimension of the problem, the report prepared by the Commission on Drug Policy of the Western Hemisphere details the process of money laundering resulting from illegal practices, which aims to introduce resources into legitimate funds through accounting gimmicks to mislead the illicit source of money. “Asset laundering” is how the publication names this practice, since illicit products are not just money³, but also of valuable goods such as precious stones, luxury items and even digital currencies (WESTERN HEMISPHERE DRUG POLICY COMMISSION, 2020).

The publication also points out the mass transport of currency across borders as one of the main ways for money laundering: once the amounts enter a foreign country, they are converted into local currency and deposited in a financial institution through fraudulent methods. . This crime has a significant impact on the public budget of states, and in 2013 it was estimated that Latin American countries failed to raise more than US$ 1 trillion from illicit capital outflows (WESTERN HEMISPHERE DRUG POLICY COMMISSION, 2020).

Cryptocurrencies and Illicit Financial Flows

Currently, new modalities for money laundering are being used, among which cryptocurrency transactions have stood out. Likewise, techniques of investigation and confiscation of this type of property must be improved in order to curb crime in the face of new challenges that arise.

Publication made by UNODC and the Central Asian Regional Information and Coordination Center for Combating Illicit Traffic in Narcotic Drugs, Psychotropic Substances and Their Precursors (CARICC) highlights the common use of cryptocurrencies as a form of payment for “criminal services” or products illicit. The possibility of carrying out fragmented applications, through semi-anonymity, are resources operated by criminal organizations for money laundering, as well as the exchange of cryptocurrency as a form of payment between them.

To get an idea of ​​the problem, among the 20 countries in which the highest intensity of use of cryptoactives was identified, there are countries where there is high production of drugs, such as Colombia and Afghanistan, as well as States identified as the main routes of the drug trafficking. Faced with this rapid innovation, security agencies are still developing the necessary tools for the effective investigation of crimes that use cryptocurrencies (UNODC; CARICC, 2021).

USA

Starting in 2014, the US recognized virtual assets as goods for tax purposes, which have already generated considerable tax revenue in the country. Regarding the seizures of cryptocurrencies, in 2021, around 1,2 billion dollars were confiscated. After the seizure of this type of asset, it is converted into local currency, which is deposited in funds managed by the US government. Another way for seized crypto assets to be returned to society is through auctions, which also raise considerable monetary value (idem).

United Kingdom

In 2021, the UK Metropolitan Police made a record seizure of $250 million in cryptocurrencies, linked to money laundering from criminal activities.

Germany

In 2019, the German police closed the activities of a network known as The Wall Street Market that operated on the Darknet, in which drugs (cocaine, heroin, marijuana and amphetamines), stolen data, among other illicit activities were trafficked. Within this market with thousands of sellers, and illicit transactions, cryptocurrency offers were used (idem).

Brazil

In 2021, the Federal Police of Brazil seized R$150 million in cryptocurrencies in a single operation, which were linked to an illegal financial pyramid scheme. In addition, the Federal Police of Brazil seized more than R$1 billion worth of cryptocurrencies during the same year.

Source: UNODC; CARICC, 2021.

In this sense, from 2003 onwards, a global movement of “tax justice” emerged. that had the ability to influence public policy around the world. Subsequently, in 2013, a series of innovative proposals in this area appeared on the agendas of several groups of countries, such as the G8, G20 and the Organization for Economic Cooperation and Development (OECD), in a way, the FFIs agenda emerges as an opposition to the idea that the problem of corruption is an issue exclusively for poorer countries (COBHAM; JANSKÝ, 2020).

In addition to the importance of these topics as areas of knowledge in themselves, their relevance as part of a global effort in the context of the United Nations 2030 Agenda, whose goal 16.4 has as one of its purposes is the reduction of illicit financial flows. In 2015, the United Nations created an indicator with the purpose of reducing illicit financial flows within the scope of the Sustainable Development Goals, as shown in the table below.

Goal of Agenda 2030

Source: INSTITUTE OF APPLIED ECONOMIC RESEARCH (2018).
Prepared by: CdE – Center of Excellence for Reducing the Supply of Illicit Drugs.

In Brazil, little has been produced in this area. There are some exceptions to publications that focus on this theme, such as the research that makes an economic assessment of drug trafficking in the state of Acre, in which an economic and financial analysis of drug trafficking in this region is carried out, in addition to identifying the common factors among people who migrate to this activity (LIMA LIMA, DA SILVA, ALMEIDA, 2011).

The lack of indicators that make it possible to measure illegal activities is one of the major difficulties in planning public policies to restrict drug trafficking and related crimes. In this sense, the theme of “Illicit Financial Flows” (IFFs) gains importance as a complex field of knowledge with the potential to support actions in the area of ​​public security.

Therefore, in addition to a global estimate of FFIs, the effective reduction of illicit financial flows requires the construction of indicators that cover the complexity of the different stages of the production chain of an illicit market, considering regional and local peculiarities, as well as mapping activities aimed at decapitalizing criminal organizations.

In this section, the work of the Centro de Excelencia para Información Estadística de Gobierno, Seguridad Pública, Victimización y Justicia (CdE Mexico) — UNODC project based in Mexico that works in partnership with Instituto Nacional de Estadística y Geografía (INEGI) in the development of statistical systems on security and criminal justice. Among the areas of activity of CdE Mexico, there is the development of methodologies and studies with the aim of measuring illicit financial flows.

A recent publication entitled Conceptual Framework for The Statistical Measurement of Illicit Financial Flows, prepared by UNODC in conjunction with the United Nations Conference on Trade and Development (UNCTAD), provides an overview of this methodology, which will be discussed next.

Methodology

The definition brought by UNCTAD and UNODC to refer to FFIs broadens the understanding beyond illicit practices, including in the calculation of these flows also behaviors associated with some tax and commercial practices. The International Classification of Crimes for Statistical Purposes (ICCS) identifies four activities that can generate FFIs:

    1. Tax and commercial activities
    2. illegal markets
    3. Corruption
    4. Activities of the exploitation and financing of crime and terrorism

From each of these four activities, two stages emerge, the first being income generation itself — which refers to cross-border transactions made “in the context of the production of illicit goods and services or that generate illicit income for an actor during a non-productive illicit activity”. The second stage refers to the management of illicit income — which is related to “cross-border transactions that use illicit income to invest in financial and non-financial assets or to consume goods and services” (UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT; UNITED NATIONS OFFICE ON DRUGS AND CRIME, 2020, p. 7-8 – our translation).

One of the great challenges in classifying illicit financial flows is their multidimensional nature and the possibility of referring to a wide range of activities, from flows originating in illegal operations and the possibility of these being moved to licit funds, created from legal means. , but used illegally. In addition, not all FFIs are generated from illicit activities, as this indicator can also include aggressive tax evasion, as it is considered an operation harmful to sustainable development in many countries, despite not being an illegal practice (UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT; UNITED NATIONS OFFICE ON DRUGS AND CRIME, 2020).

Categories of activities that can generate illicit financial flows

Source: UNCTAD; UNODC.

In some UNODC research, an illicit financial flow is considered when these practices cross the border from one country to another. The methodology described in this chapter is a conceptual way of presenting it. Each research may present peculiarities, which are adapted according to the variables researched, as well as the described reality.

One of the main challenges of this type of study is obtaining data and information, which are often scattered among different government agencies. Therefore, part of the work that involves the calculation of FFIs requires an ability to articulate with different institutions that produce information by the nature of their activities. or for its expertise in developing knowledge, in order to ensure the quality of the data obtained in order to aggregate them properly.

In this sense, the methodology has a flexible nature, considering that it must adapt to the type of market and illegal practice that is intended to be verified, and enables the production of studies and estimates — which can support the planning of public security and safety policies. to reduce the supply of illicit drugs.

As an example, CoE Mexico has been improving this methodology for measuring illicit financial flows and adapting it to the reality of the countries where this estimate was made. A first effort was made to apply the methodology in a pilot carried out in Mexico, Colombia, Ecuador and Peru in recent years, focusing on the following illegal markets: drug trafficking, human trafficking, smuggling of immigrants and illegal mining.

The potential benefits of developing this type of information refer to a greater ability to guide public resources in the fight against criminal organizations, which are often scarce. Understanding FFIs can contribute to more effective actions in fighting crime.

Management of seized assets

The issue of managing seized assets has gained space in the international scenario as a good practice that benefits society as a whole by supporting the fight against crime, while stimulating the increase of the public budget. In this sense, the production of knowledge on the subject gains relevance as one of the objectives for its actions to be improved within the scope of public policies. In this section, the United Nations convention that deals with this topic will be presented, as well as some initiatives of other international organizations and projects that deal with the theme with the aim of inducing improvements in the area.

Methodology and description of experiences

UN

The topic of asset management is an ongoing global effort that can be seen, for example, in paragraph 3 of article 31 of the United Nations Convention Against Corruption (UNCAC) of 2005. One of the important aspects of this device is the encouragement to create of mechanisms for the decapitalization of assets arising from criminal practices, as well as the management of these assets. The aforementioned article dealing with the topic of asset management follows in the box.

Article 31
Preventive embargo, seizure and confiscation

1. Each Member State shall, to the greatest extent permitted in its domestic legal system, adopt the measures necessary to authorize confiscation:
a) From the proceeds of a crime qualified under this Convention or from goods whose value corresponds to that of such proceeds;
b) Property, equipment or other instruments used or intended used in the commission of offenses qualified in accordance with this Convention.
2. Each Member State shall adopt such measures as may be necessary to enable the identification, location, preventive embargo or seizure of any property referred to in paragraph 1 of this Article with a view to its eventual confiscation.
3. Each Member State shall, in accordance with its domestic legislation, adopt such legislative and other measures as may be necessary to regulate the administration, by the competent authorities, of the confiscated, confiscated or confiscated property included in paragraphs 1 and 2 of the present Article.
4. When this proceeds of crime has been transformed or converted partially or totally into other goods, these will be subject to the measures applicable to such proceeds in accordance with this Article.
5. When this proceeds of crime has been mixed with goods acquired from lawful sources, these goods will be subject to confiscation up to the estimated value of the mixed proceeds, without disregarding any other option of preventive embargo or seizure.
6. Income and other benefits derived from this proceeds of crime, from goods into which such proceeds have been transformed or converted or from goods which have been merged with such proceeds of offense shall also be subject to the measures provided for in this Article, in the same manner and to the same degree as the proceeds of the crime.
7. For the purposes of this Article and Article 55 of this Convention, each Member State shall provide its courts or other competent authorities to order the production or seizure of banking, financial or commercial documents. Member States may not refrain from applying the provisions of this paragraph on the basis of banking secrecy.
8. Member States may consider requiring an offender to demonstrate the lawful origin of the alleged proceeds of crime or other property subject to confiscation, insofar as it complies with the fundamental principles of their domestic legislation and with the nature of the judicial or other proceedings.
9. The provisions of this Article shall not be interpreted as prejudice to the rights of third parties acting in good faith.
10. Nothing in this Article shall affect the principle that the measures provided for therein will be defined and applied in accordance with and subject to the domestic legislation of the Member States.

Source: UNITED NATIONS CONVENTION AGAINST CORRUPTION (2005) – Emphasis added.

Almost all United Nations Member States have procedures for confiscating assets derived from crime. established in accordance with article 2 of the Convention, which defines such procedure as “the definitive deprivation of property by order of a court or other competent authority” (UNITED NATIONS CONVENTION AGAINST CORRUPTION, 2005, p. 7).

UNODC is part of the effort to help create mechanisms that contribute to fighting corruption. In addition to advising Member States on the implementation of the convention, UNODC has prepared a study that monitors the implementation of UNCAC as a way of supporting the commitments represented by that convention and providing technical assistance for its implementation. Although some common issues and difficulties were observed among the countries studied, there was a trend towards a legislative convergence that improves the applicable norms within the scope of UNCAC (UNITED NATIONS, 2017).

The aforementioned study, entitled State of implementation of the United Nations Convention against Corruption10, it is a very useful publication in the area of ​​asset management due to the diversified content on the subject, reporting a series of procedures and legislation in force in several countries. Among the topics covered, the following stand out: Forfeiture based on value; Domain extension; Confiscation not based on conviction; Identification, tracking, freezing and seizure; Asset management; Scope of property subject to seizure and confiscation; Production of bank, financial or commercial records, among others (UNITED NATIONS, 2017).

Another important UNODC publication, Effective management and disposal of seized and confiscated assets11, surveys the management of seized assets in 64 countries. Regarding the implementation of article 31 of the UNCAC, among the 3 main challenges pointed out by the nations that took part in the study, 24% reported “Absent or inadequate measures to facilitate confiscation and excessively burdensome requirements”, 23%, “Challenges in the administration of frozen, seized or confiscated” and 18%, “Coverage of transformed, converted and mixed criminal proceeds, as well as income and benefits derived therefrom” (UNITED NATIONS OFFICE ON DRUGS AND CRIME, 2017, p. 2).

The study makes an important survey of manuals and documents with good practices from renowned international organizations, with the objective of compiling information on asset management legislation in the provisional phase, during the disposal process, and in the final phase, as well as mechanisms for preserve the value of seized goods.

The United Nations Conference against Corruption, at its eighth session meeting held in 2019, prepared a guide with 14 non-binding guidelines to advise Member States in the area of ​​asset management.

UNCAC Asset Management Guidelines

Source: UNITED NATIONS (2019).
Prepared by: CdE – Center of Excellence for Reducing the Supply of Illicit Drugs.

From a global perspective, the United Nations naturally stands out as a promoter of actions in the area of ​​asset management, advising Member States and encouraging promising practices in the area.

CICAD

In addition to the UN, there are other interesting initiatives that have fostered the development of diagnoses, legislative debates and practical actions to improve the management of seized assets, such as the Executive Secretariat of the Inter-American Drug Abuse Control Commission of the Organization of American States ( CICAD/OAS), which initiated the project on Seized and Confiscated Goods in Latin America (BIDAL project12). The initiative is the result of a series of detailed analyzes aimed at defining the best course of action for national drug enforcement agencies to address the recurring lack of funds to finance demand reduction programs, drug law enforcement and mechanisms to manage efficiently the seizure of assets derived from organized crime and illicit drug trafficking.

During its creation and first phase, in 2008 and 2009, the BIDAL project was implemented in three countries: Argentina, Chile and Uruguay, chosen for the similarity of their legal systems and geographical proximity. In 2011 and 2012, in the second phase, it was applied in El Salvador and the Dominican Republic, allowing situational diagnoses to be carried out, such as: identification of the strengths and weaknesses of each country in relation to the investigation, seizure and administration of seized assets and confiscated, final destination, exchange of experiences and best practices in the context of international cooperation. In 2014, the project made a diagnosis with recommendations for the Brazilian context.

The following illustration summarizes the actions carried out in the countries where the project worked.

Basel Institute on Governance

Other actions developed in the area of ​​asset management have been carried out by the non-profit organization Basel Institute on Governance, founded in 2003 and active in different parts of the world, through partnerships with public and private sectors, in order to prevent and combat the corruption. Among other areas of activity, the institute created the International Center for Asset Recovery13 (ICAR), which aims to support the recovery of stolen goods. The work of this centre is provided by counseling and training partners, in addition to offering spaces for exchanging information to assist in legislative reforms involving asset management.

This initiative has a guide to good practices, which covers topics from the investigation strategy to legal mechanisms and challenges involving the recovery of assets.14.

Stolen Asset Recovery Initiative

An initiative resulting from a partnership between UNODC and the World Bank, the Stolen Asset Recovery Initiative15 (StAR) seeks to support efforts that contribute to ending resource havens arising from crimes such as theft or corruption. This initiative benefits from the influence of its partner organizations to leverage international efforts to recover stolen assets.

StAR has in its collection several publications with recommendations and lines of action for asset recovery and for promoting measures against corruption. Among some of these publications, it released a recent best practices book entitled Asset Recovery Handbook: A Guide for Practitioners. The publication takes stock of legislation and conventions in the area of ​​asset recovery, exposing examples, procedures and information relevant to the area (BRUN, 2021).

StAR's impact is on the promotion and dissemination of knowledge through the expertise of specialists directly involved with the work of asset recovery. The initiative also maintains a database with important cases for understanding and offering technical assistance, operating in almost 70 countries.

CdE Thematic Bulletin – Management of Drug Trafficking Assets – Decapitalization of organized crime to strengthen public policies in Brazil

As a source of information, this bulletin presents some international experiences and uses data from the Asset Management System of the National Anti-Drug Fund (GFUNAD) and the mapping of processes and workflows carried out by SENAD and the actors involved at the state level. The bulletin addresses the National Policy on Drugs (Pnad), which has as one of its assumptions the reduction of the supply of drugs and as one of its main instruments of management and action the National Anti-Drug Fund (FUNAD) — which in turn counts as a an important source of financing is the proceeds from seizures and the sale of goods arising from crimes related to drug trafficking.

A recent legislative change (Law No. 13.840/2019) regulates early disposal, that is, it allows the sale of assets before the final judgment, creating new mechanisms for asset management, avoiding the depreciation of seized assets and contributing to greater collection from FUNAD, which in turn will support public policies on drugs.

Goods that go to auction generate more complex administrative actions. There is great diversity among the assets categorized as “Miscellaneous”, including living goods, precious stones and companies. In view of this, SENAD entered into partnerships to deal with the specificities that these assets demand. Among the goods that go to auction, vehicles are the most frequent. Data suggest that early divestment can mean that, on average, they are sold for a higher price.

Dispersion between the appraisal value and the sale value of the auctioned vehicles, according to the type of sale

Source: GFUNAD – Ministry of Justice and Public Security (2020).

 

Types of assets auctioned in 2020

Source: GFUNAD – Power BI/SENAD Panel, 12/02/2021 – Ministry of Justice and Public Security (2021).

Changes in legislation, data obtained from GFUNAD and subsidies collected in interviews with state and national managers point to significant changes in the process of managing assets linked to drug trafficking in recent years. The new legislation, the restructuring of SENAD, the implementation of the Check in Project and the hiring of auctioneers brought improvements in asset management in the country, a topic analyzed in this CdE publication.

footnotes

  1. Some of the information and data from this publication can be found in the box at the end of the chapter.
  2. Also known as “Money Laundering”, which means the process of hiding the illicit origin of certain assets or goods.
  3. This corroborates the idea presented in this chapter, which deals with estimating illicit financial flows and provides an insight into the management of seized assets.
  4. A movement that sought to promote a fairer tax system, which fostered mechanisms to combat corruption and reduce foreign exchange evasion (DALLYN, 2017).
  5. Abbreviation for “Center of Excellence”.
  6. Organ of the Mexican State responsible for producing official statistical data, similar to the Brazilian Institute of Geography and Statistics (IBGE) in Brazil.
  7. For example, the data on drug seizures from the different police forces to have an estimate of the illicit drug trafficking market.
  8. For example, social and/or economic indicators produced by State bodies.
  9. Only 7 countries diverge and do not have asset confiscation procedures under UNCAC (UNITED NATIONS, 2017).
  10. Available at: https://www.unodc.org/unodc/en/corruption/tools_and_publications/state_of_uncac_implementation.html. Accessed on: 24 Aug. 2021.
  11. Available at: https://www.unodc.org/documents/treaties/UNCAC/WorkingGroups/workinggroup2/2017-August-24-25/V1705952e.pdf. Accessed on 24 Aug. 2021.
  12. Acronym in Spanish that refers to “Proyecto de Administración de Bienes Incautados y Decomisados ​​en América Latina” (BIDAL).
  13. Available at: https://baselgovernance.org/asset-recovery. Accessed on: 29 Sep. 2021.
  14. Available at: https://learn.baselgovernance.org/pluginfile.php/6239/mod_resource/content/4/Asset%20recovery%20guidelines.pdf. Access on: 15 Oct. 2021.
  15. “Stolen Asset Recovery Initiative” in free translation. Available at: https://star.worldbank.org/. Accessed on: 16 Aug. 2021.

References

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COBHAM, A.; JANSKÝ, P. Estimating Illicit Financial Flows: A Critical Guide to the Data, Methodologies, and Findings. Oxford: Oxford University Press, 2020.

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UNITED NATIONS OFFICE ON DRUGS AND CRIME. Effective management and disposal of seized and confiscated assets 2017. Vienna: UNODC, 2017. Available at: https://www.portalbcft.pt/sites/default/files/anexos/unocd_administracao_e_disponibilizacao_bens_apreendes_e_declarados_perdidos.pdf. Accessed on: 15 Jul. 2021.

UNITED NATIONS. Conference of the States Parties to the United Nations Convention against Corruption. CAC/COSP/2019/16. Abu Dhabi: 3 Oct. 2019. Available at: https://www.unodc.org/documents/treaties/UNCAC/COSP/session8/CAC_COSP_2019_16_E.pdf . Accessed on 27 July. 2021.

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