The paper highlights that the need to establish the link between a specific asset and a crime is an acute challenge in confiscation of proceeds of crime, potentially limiting the capacity of law enforcement bodies to take timely measures to prevent further use and concealment of the property of illegal origin.

In order to address this problem, the authors of the publication suggest exploring equivalent value-based measures (EVBM) that allow for arrest, seizure and confiscation of assets of the cost that is equivalent to the value of the benefit of the crime regardless of their origin.

The possibility to use EVBM is allowed by such international documents as:

• United Nations Convention against Corruption;
• Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism;
• Directive on the Freezing and Confiscation of Instrumentalities and Proceeds of Crime;
• Regulation on the Mutual Recognition of Freezing Orders and Confiscation Orders;
• Directive on Asset Recovery and Confiscation;
• Convention on Combating Bribery of Foreign Public Officials in International Business Transactions;
• African Union Convention on Preventing and Combating Corruption; and
• Regulation on the Prevention and Suppression of Money Laundering and the Financing of Terrorism and Proliferation in Central Africa.

In assessing the use of EVBM, the StAR experts analysed the laws and law enforcement practice of 22 jurisdictions, including states with different legal systems and level of engagement in international cooperation on asset recovery. It was found that despite the potential usefulness and even presence of basic EVBM provisions in most countries reviewed, they are employed on a regular basis only in less than a third of them (France, the United Kingdom, the Republic of Korea, Spain and India). In the opinion of the authors of the publication, this can be explained by:

• The difficulties in calculating the benefit of criminal activities and, as a result, in establishing the equivalent value (in case of mutual legal assistance, also the different approaches to the calculation: in some countries the courts can take into account only the net profit, in the others, the total sum, including the profit without considering the expenses);
• The limited possibility to confiscate the assets that are instrumentalities of crimes: for example, in Bosnia and Herzegovina, Brazil, Nigeria and Switzerland this is not provided for by law, whereas in some countries this is possible only under a broad list of conditions;
• The lack of experience in the use of EVBM by investigators and other authorised officials (Brazil, Singapore, Bosnia and Herzegovina and Nigeria);
• The elevated costs of investigation, including the identification and assessment of assets, and the source of income of the accused (Singapore);
• The lack of judicial precedents explaining the application of EVBM (Singapore);
• The possibility for the accused to get a loan to pay the sum indicated in the confiscation order, while preserving the ownership of their assets (the UK);
• The use of different EVBM mechanisms and procedures in different jurisdictions that potentially hamper the provision of mutual legal assistance in asset recovery etc.

Additionally, the StAR experts found that depending on the approach, the reviewed countries can implement one of the following EVBM options:

• Confiscation of both the proceeds of crime and the assets of equivalent value (France, Bosnia and Herzegovina and the US);
• Confiscation, providing for the obligation to pay the sum of money equivalent to the alleged value of the benefit stemming from criminal behaviour: the payment can be made with the money received from the sale of any asset owned by the accused (Botswana, Hong Kong, Jersey, Nigeria, South Africa and the UK).

EVBM can be used as:

• An auxiliary tool – confiscation of assets of equivalent value is made only in the event that the proceeds of crime cannot be accessed (France, Hong Kong, Botswana, the US, Israel, India, Indonesia, Jersey, Nigeria, Pakistan, Panama, Singapore, South Africa and the UK);
• The main confiscation tool – confiscation of any assets of equivalent value possessed by the accused (Bosnia and Herzegovina, Brazil, India, Italy, the Republic of Korea, Lebanon, Romania, Spain, Switzerland and the US).

The authors believe that another important element of the use of EVBM is the possibility to employ the provisional measures mitigating the risk of dissipation of assets throughout the investigation – freezing, seizure and/or other method to restrict the disposal of property. At the same time, the StAR experts established that not all reviewed jurisdictions have the necessary legal provisions in place (Lebanon, Bosnia and Herzegovina, Panama), and a number of countries having the relevant measures hardly use them.

StaR also puts forward a number of recommendations on how to enhance the effectiveness of the use of EVBM in the publication, in particular:

• Domesticate international treaty provisions dealing with EVBM;
• Consider adopting EVBM as a primary rather than auxiliary tool, which would allow for confiscating the most appropriate assets also from the point of view of long-term management;
• Adopt/improve the legal acts allowing for using provisional measures;
• Build the capacities of the persons responsible for asset recovery in using EVBM by implementing relevant training and awareness-raising initiatives, including, among other things, the information on the EVBM definitions used in different jurisdictions.