Oireachtas Joint and Select Committees
Tuesday, 21 June 2022
Joint Oireachtas Committee on Justice, Defence and Equality
Proceeds of Crime (Gross Human Rights Abuses) Bill 2020: Discussion
I welcome all of our witnesses to today's session, both in person and online. Apologies have been received from Deputies Pringle and Martin Kenny and Senator Ruane. We may be joined by other committee members over the course of the meeting.
I remind everyone to turn off their mobile phones so that they do not interfere with the recording. We have a number of items on our agenda today, the first of which is the Proceeds of Crime (Gross Human Rights Abuses) Bill 2020. We have waived the requirement for pre-legislative scrutiny of this Bill so today's meeting is best described as an engagement with stakeholders to better inform the committee of the provisions contained in the Bill. For clarity, we have already waived the scrutiny requirement so no further steps are necessary in order for the Bill to proceed to the next Stage.
We are joined by Detective Chief Superintendent Michael Gubbins and Mr. Kevin McMeel from the Criminal Assets Bureau, CAB. From the Department of Justice, we are joined by Ms Rachel Woods, assistant secretary and head of legislation for criminal justice, and Mr. Brendan Bruen, principal officer. We are joined remotely by Mr. William Browder from the Global Magnitsky Justice Campaign.
Mr. Browder is joining us online and is very welcome to the committee.
I think all witnesses will be familiar with privilege and the rule that we do not criticise or make charges against any person who, or entity that, does not have a right to defend themselves in the committee. That is particularly so in the case of Mr. Browder. As he is online, we cannot guarantee that privilege will extend to any comments he may make. Please be mindful of that when giving evidence. Unfortunately, he cannot benefit from the same protections that accrue inside the committee room as may accrue outside it. I am sure Mr. Browder is very aware how all that works.
I will invite each of the three organisations before the committee today to make an opening statement. As per usual committee practise, we will ask that each statement be curtailed to three minutes per organisation. Then we will have further questions and answers between the members and witnesses as the meeting goes on. We are going to have a slightly shorter time for questions and answers than we might usually allow. I will ask each member to keep their questions and answers to three minutes. We can do a second round if needs be but we will try to keep the meeting moving expeditiously.
We will begin with the Criminal Assets Bureau and Detective Chief Superintendent Michael Gubbins. There is a clock in the corner. He can keep an eye on it, if he wants to mind his time. He has three minutes to make his opening remarks.
Mr. Michael Gubbins:
The Criminal Assets Bureau, CAB, welcomes the opportunity to address the Joint Oireachtas Committee on Justice on the proposed Proceeds of Crime (Gross Human Rights Abuses) Bill 2020. While CAB acknowledges the positive intentions behind the advancement of the Bill, it has concerns that those intentions may not be realised under its terms. The Proceeds of Crime Act is a statutory scheme which essentially provides for the freezing and confiscation of assets which have been proved on the civil standard to be the proceeds of crime. No prior conviction is necessary. If CAB can provide evidence which, on the balance of probabilities, persuades the High Court that an asset is the proceeds of crime, then that asset shall, subject to an exemption for injustice, be confiscated. Belief and hearsay evidence are, to a limited extent, permitted in such applications. Proceedings taken under the Proceeds of Crime Act are referred to as "in rem". In basic terms, this means they are taken against the property itself as opposed to from the person in possession or control of the asset. This has significant implications within the context of the EU restrictive measures against Russia and Belarus which seek to freeze assets on the basis of the identity of their owner and not on the basis of their provenance. It appears that the Bill at least in part seeks to confiscate assets seized under the restrictive measures.
The concerns of CAB in relation to the efficacy of the Bill are twofold. First, the Bill presupposes the existence of an identifiable category of assets which have been acquired by or in connection with conduct – amounting to or in connection with a gross human rights abuse, as defined in the Bill - which is a recognised offence in this jurisdiction but not in the jurisdiction in which it was committed. In the absence of any clear examples, CAB has significant doubt as to whether such a category of assets exists. While CAB recognises assets can be acquired through a limited number of offences which can take place in connection with gross human rights abuses - for example, corruption - this is almost certainly going to be recognised as a criminal offence per se in the jurisdiction in which it occurred. The dual criminality provision under the Proceeds of Crime Act as currently drafted does not require the home jurisdiction to acknowledge a specific offence or offences as having taken place, it merely requires corruption per seto be recognised as a criminal offence in that jurisdiction. The Bill will have no practical benefit in such circumstances. Second, even assuming such a category of assets intended to be targeted by the Bill exists, it is the view of CAB that the evidential challenge of proving the occurrence of criminality in an unco-operative jurisdiction would likely render the chances of Ireland successfully confiscating such assets insurmountable.
I thank Detective Chief Superintendent Michael Gubbins. He has done something most people very seldom do. He came in under time, thank you.
On behalf of the Department of Justice, I invite Ms Rachel Woods to make her opening remarks.
Ms Rachel Woods:
I thank the Chair and the committee for the invitation today. As members are aware, the Minister for Justice, Deputy Helen McEntee, has recognised the very important principles behind this Bill and has made absolutely clear that Ireland must not be a safe haven for illicit gains. The Department recognises the vital importance, particularly in light of the situation in Ukraine, of ensuring public officials can be held accountable to the greatest possible extent for human rights abuses they commit. A detailed submission has been provided to the committee and my colleagues and I are happy to address specific areas in more detail where that would be useful. I will refer to some central points at this stage.
The first is the distinction between the political and judicial approaches to targeting assets. The critical feature of the US Magnitsky Act, and indeed that of the more recent EU global human rights sanctions regime, is that a determination may be made at political level to freeze the assets of a person linked to human rights abuses. Freezing does not require proof of a legal standard that the person has committed a specific abuse or that the assets in question result from such abuses. On the contrary, the measures act against the person concerned, and any assets held by or for the benefit of that person. Measures can be taken quickly and can target both those committing abuses along with those directing them.
This political approach is distinct from the judicial one taken in this Bill which hopes to use proceeds of crime legislation. Seizures would be based on a court finding on a legal standard that an asset results from conduct which is both criminal in Ireland and a gross human rights abuse within the definition provided. There is no difficulty in treating gross human rights abuses committed by public officials as criminal conduct and this, of course, applies even where an official might be somehow protected under their domestic law. However, in most cases, gross violations of human rights will already be serious crimes under the law of the state concerned.
The question that arises is whether a person has done the conduct rather than whether the conduct constitutes a crime. The major practical challenge is providing sufficient evidence to meet that legal standard. However, the more fundamental difficulty is that human rights abuses do not usually create profits in and of themselves. They may be committed by a person who is also committing other crimes that generate profits, such as corruption or fraud, or they may be committed to cover up such crimes. However, the asset will still flow from the profit-generating crimes rather than from the human rights abuses. Ultimately, it will be the link to the profit-generating crime that will need to be proven to support a proceeds of crime action.
In our initial assessment of the Bill, the Department identified four conditions that would need to apply in any given scenario for the Bill to yield a practical benefit: first, when conduct is an offence under Irish law but not in the other state; second, when the relevant asset is the proceeds of a human rights abuse rather than another form of crime; third, that sufficient evidence would be available to support a court finding; and fourth, that no other means of recovery is available. The challenge we have faced is identifying situations where these conditions all apply.
We look forward to hearing from other witnesses and from members on this issue in particular. If there is something that can genuinely be done to help target assets and counter abuses, then the Minister has been very clear that she will progress that. In passing, I note that amending legislation to the Proceeds of Crime Act is under development and there is certainly further work to be done in this area.
I thank Ms Woods. Next up is Mr. William Browder. While he might be online today, he has been physically present in the precincts before. I met him when he visited the Houses a couple of years ago. He gave a very useful address to a number of us in one of the side rooms. The committee is glad to have him with us today. He has three minutes for his opening remarks.
Mr. William Browder:
I thank the Chair. It is great to see him again. I thank members of the committee for this opportunity to discuss this hugely important legislation. I am the head of the Global Magnitsky Justice Campaign. My work for the last 12 and a half years has stemmed from the murder of my lawyer, Sergei Magnitsky, after he uncovered a massive Russian Government corruption scheme. He exposed it and in retaliation he was arrested, tortured for 358 days and killed on 16 November 2009. I have made it my mission since then to get justice for him and one of the main tools for justice is the legislation called the Magnitsky Act. The Magnitsky Act was designed to freeze the assets and ban the visas of the people who killed Sergei Magnitsky, the people who profited from his crime and the people who commit similar types of crime in Russia and around the world.
The United States passed the Magnitsky Act in December 2012. At that time, it was specifically for Russia. The Magnitsky Act was then broadened in 2016 - it is called the Global Magnitsky Act - to apply to human rights abusers all over the world.
After that, the Canadian Parliament unanimously passed its own Magnitsky Act, as did the UK, European Union and Australia. Norway has a Magnitsky Act, as do Kosovo and Montenegro. I am hoping that this legislation being considered today will become the Irish Magnitsky Act to be passed in due course.
I wish to say a couple of things regarding what is happening in Ireland. Some may ask why Ireland needs a Magnitsky Act or some version of it when the European Union has one. I have seen the dysfunction of the European Union when it comes to sanctions. Every country has a veto right over the sanctions list. In the Magnitsky case the Hungarian Government vetoed any Magnitsky killers being sanctioned in the EU, so only the United States, Canada, the UK and Australia, along with Lithuania, Latvia and Estonia, have sanctioned Magnitsky's killers. Those same individuals could travel to Ireland right now and open bank accounts in Ireland. They could transact business and buy property in Ireland. Ireland has an opportunity to have a Magnitsky Act whereby it can operate its own sovereignty, so Ireland is not a soft touch for people such as Magnitsky's killers and they cannot come to this country.
I also wish to respond quickly, if I have the time, to the statement by previous speakers. The way the Magnitsky Act is structured in other countries is that a person is identified and any assets that belong to that person are subject to freezing. It is next to impossible to prove that assets coming from a human rights abuse are in a jurisdiction. It relies on the offending jurisdiction to provide evidence, which is often impossible. However, it is not so impossible to provide evidence of human rights abuse, so it is very much in Ireland's interest to have a legislative measure similar to that of all the other countries which states that if a person is guilty of human rights abuse based on whatever legal standard Ireland decides to apply, that person's assets in Ireland's jurisdiction will be frozen. Anything more complicated than that will make it an inoperable legislative measure. I will leave it at that.
I thank Mr. Browder. It is very interesting. There will be a number of questions for Mr. Browder from around the table as regards understanding how this works elsewhere. We have received submissions as to what difficulties and concerns exist from a legislative perspective so his input may be very useful in terms of how they have been overcome elsewhere. I look forward to that discussion.
Each member will have approximately three minutes for their questions and answers. I will give Deputy Howlin, as proposer of the Bill, greater latitude because I am sure he will have plenty to say about it and, in fairness, he has worked very hard to get it to this stage. I invite Deputy Howlin to make some opening remarks and then put his questions. I will not have him on the clock in the same way as others because he is the sponsor of the Bill.
I greatly appreciate that. I warmly welcome the written and detailed submissions from the Department of Justice, CAB and Mr. Browder, with whom I have had conversations.
I will make a few general points. First, Magnitsky is a general heading. When I looked at this some years ago, and this predates any current human rights abuses ongoing in Ukraine, I wanted to see how we could have something effective in our jurisdiction. I was a member of the Government when the Proceeds of Crime Act 1996 was enacted. I remember many of the arguments made at the time, with all due respect to some of the arguments I have heard just now, about how impractical that unique new legislation would be to confiscate assets from people without a criminal conviction. It was groundbreaking at the time, and impractical. In fact, I had a discussion last night with Mr. Greg Sparks to refresh my memory - he was programme manager for Mr. Dick Spring at the time - and he gave me chapter and verse on how difficult it was to convince people, including senior officials in the Department of Justice, that this was actually a very practical thing. It is now regarded as the most practical legislative measure we have to combat crime.
I will briefly go through the purpose of the Bill. The purpose is to do a couple of simple things. One is to enact that the conduct that takes place outside the State would be criminally unlawful if it occurred within the State and can be declared as criminal conduct if it would constitute an offence under the law of the State if it is connected with a gross human rights abuse and some property obtained or received as a result of or in connection with that conduct, that is, the gross human rights abuse, is situated within the State. The rule would relieve CAB of the dual criminality issue. CAB addressed that fairly in its submission. I do not think it has a difficulty with the issue of removing the dual criminality test. If it has, it should let me know. In terms of gross human rights abuses, it would be a vacuous thing to try to do in some jurisdictions where obviously human rights abuses will never be made illegal and, in fact, are part of the normal operation of government.
In the CAB submission, it has adopted the argument that was put forward in the written submission from the Department of Justice which, at its core and is the core argument against it, is that while abuses may be committed by a person who is engaged in other profit-generating criminal activities such as corruption, fraud or embezzlement, the assets will flow from other crimes rather than from the human rights abuses themselves, and that the primary provisions of the existing 1996 legislation, in common with other confiscation frameworks, can only be used against the assets that are obtained from such criminal conduct. That is the core of its case. Even in situations where the human rights abuse is committed to cover up such profit-generating crimes, it is still essential, in CAB's contention as I read it, that the assets to be seized are the product of those crimes.
I challenge the Department's contention that the confiscation powers can only be used against assets that are the result of criminal conduct. The definition of "proceeds of crime" is set out in section 1 of the 1996 Act as meaning "any property obtained or received at any time ... by or as a result of or in connection with" criminal conduct. The passage quoted in the submission concentrates on two of those six tests, any one of which must be satisfied before property can be the proceeds of crime under the Act - if it was obtained by criminal conduct, if it was obtained as a result of criminal conduct, if it was obtained in connection with criminal conduct, if it was received by criminal conduct, if it was received as a result of criminal conduct and if it was received in connection with criminal conduct. They are the definitions set out. I contend, contrary to the point that was made, that it is not necessary that it flows from crime. It is sufficient, and I was at the Cabinet table when these matters were discussed and agreed, that they were obtained or received in connection with crime, which obviously is a less onerous test.
If an individual or an official of a foreign state routinely abuses his or her position to commit gross human rights abuses, whether he or she is acting licitly or illicitly in connection with the office, it is our contention that if there are goods got in connection with the commission of those human rights abuses, he or she would be liable to have those goods confiscated under the Proceeds of Crime Act. If the definition in the Bill I have drafted is not sufficiently clear, it is possible to amend it to make it sufficiently clear.
More troublingly, and I will end on this point, the submission goes on to assert that the seizure of assets arising from criminal conduct outside the State generally requires the co-operation of the authorities of that state. Where gross human rights are alleged against persons in positions in authority, it is self-evident that this would present significant challenges. The submission is willing to contemplate scenarios where a foreign state is co-operating with Irish authorities and in seeking Irish assistance to recover those assets that were corruptly obtained that are now located in Ireland, generally a legal issue with dual criminality does not arise in these cases, which are dealt with by way of mutual legal agreements.
My concern is this argument is unwilling to consider a scenario where the official in question serves under an uncooperative foreign state. However, that is precisely the whole concept of what the Magnitsky laws are designed to deal with, namely, an uncooperative abusive foreign state where there are officials trying to act properly and whistleblow on that activity. It seems the two contentious points that have been raised can be addressed. First, by making it clear this direct connection of proceeds to a human rights abuse is not the definition intended in the original 1996 Act and, second, the co-operation of a foreign state will obviously not happen in this instance.
I am conscious the legislation I am proposing has universal application. It is not simply confined to Russia, about which there has been some commentary today. Mr. Browder is generally concerned with that but this Bill pre-dates the current activities of the Russian Federation in Ukraine. It deals with any human rights abuser who wants to stash goods in Ireland. Bluntly, the points made about the difficulties in getting evidence, or the challenges in following through on the legislation, have never been an impediment to us as legislators. If were dealing with, for example, domestic abuse, it would never be a matter for us to say we could not deal with it because it is too difficult to get into the home to find out about the abuse or get a witness statement. If something needs to be legislated for because it is the morally right thing to do, we should enact legislation no matter how challenging or difficult it is.
Mr. Brendan Bruen:
I will briefly answer and will ask the CAB representatives to come in on this as well. The question of at what point assets can be considered the proceeds of crime is very much at the root of this. In the situations we have looked at, the human rights abuse does not generate the asset. Even in the Sergei Magnitsky case, I do not think the argument is that the abuse itself generated the asset; the key question in that situation is what generated the asset. In those cases where it is clearly corrupt behaviour, or the argument is that it is corrupt behaviour, embezzlement or fraud, there is no current impediment to being able to chase or freeze those assets. The question of could it be connected else-----
Mr. Brendan Bruen:
Certainly, if the asset is the proceeds of criminal conduct, and such criminal conduct is defined as an offence under Irish law and under the law of the state concerned. It would not be expected that a dual criminality bar would arise in those cases. Do the CAB representatives have a view?
Mr. Kevin McMeel:
I will come in on that. I will respectfully say there is a slight disparity between the submission made by Mr. Browder and what is intended by the Bill. As I understand it, Mr. Browder talked about - I do not mean this in a pejorative sense - the intention of the Magnitsky movement being to target the assets of gross human rights abusers worldwide, regardless of how those assets have been acquired. In fact, Mr Browder alluded to the fact it is often just too difficult to be able to pinpoint a particular asset derived specifically from an act of gross human rights abuse.
Mr. Kevin McMeel:
Absolutely. It is important to recognise CAB does not object to the Bill in any way. We are here to try to assist and point out difficulties we see. That is important when we pointed to the evidential challenge. The Deputy is absolutely right. If there are evidential difficulties in bringing about a Bill, that is not necessarily a reason not to bring it about, but it is important for us as the people who will utilise the legislation to point out there are potential difficulties in realising practical benefits from the Bill.
On what the Deputy pointed out, he is saying there would be a lower threshold in connection with the conduct than what asset can be specifically derived from it. I have been involved with CAB for ten years and have been in my current role for three years. I have looked at the jurisprudence in respect of proceeds of crime cases conducted by CAB over the full 25 years of its existence. I have not seen a case that distinguishes specifically between what the Deputy pointed out. I am not saying it is not included in the Bill but the courts always look to see whether the asset was derived specifically from the criminal conduct. It does not need to be specific criminal conduct, but if we are saying that criminal conduct is now to be expanded and will not include the dual criminality provisions when that conduct constitutes a gross human rights abuse, or is in connection with a gross human rights abuse, the question then arises as to whether a gross human rights abuse in of itself can generate proceeds. That is the point we are trying to make.
That is no problem at all. I thank all the contributors for their presentations. I will make a couple of general points. I commend Deputy Howlin on bringing forward this legislation that is very apt in the present climate we find ourselves in. The Magnitsky Act was mentioned, which was first introduced in the US in December 2012. It was introduced in different jurisdictions around the globe thereafter. How does this Bill compare to that? Is there anything in the Magnitsky Act and not in this Bill that the witnesses believe would add strength to that legislation?
The CAB representative talked about co-operation and non-co-operation from offending States. How big an issue is that? If there is, as one would imagine, zero co-operation from an offending state, is that a game deadener? Is there any life thereafter, if that is the case?
On assets more generally that are held by individuals from wherever - I may be slightly off tangent but I hope the Chair will bear with me - how do we find out, or what mechanism do we use as a State to find out, what individuals from what countries hold assets within this jurisdiction?
Mr. Kevin McMeel:
I am happy to deal with two of those questions regarding co-operation from a State in which the offence took place.
In a general context, we have dealt with corruption cases in Thailand and Nigeria in the last six to eight years. We have been successful in those cases without the co-operation of the state in which the corruption occurred. That was not because the state was unco-operative, but because we were able to get the evidence from elsewhere, from other international law enforcement partners. I think the US authorities assisted in providing evidence in both those cases. We were able to present that to the High Court to seize assets situated in this country that were the proceeds of corruption in the two jurisdictions I referred to.
This is part of the point we are trying to make. Regarding the legislation as currently enacted, we had corruption in the example I gave. Corruption is recognised as a criminal offence in Nigeria and Thailand. Corruption is recognised as an offence, I would suspect, in virtually every jurisdiction we are seeking to target. The question as to whether a particular act is recognised as corruption in a country is of little consequence in the High Court. In the Magnitsky case, the case which brought about this whole affair, my understanding is that there was corruption which led to the generation of approximately $230 million worth of assets and that it was not recognised as an act of corruption in the jurisdiction in which it occurred. In that case, under our current legislation, if there were assets in this jurisdiction which were identifiable and if we had evidence of corruption, we would still be able to seize and confiscate those assets, provided we had enough evidence to convince, on the balance of probabilities, the High Court that they were, in fact, the proceeds of that corruption. Whether a gross human rights abuse occurred in connection with that corruption, or otherwise, would be immaterial because both would be recognised as a criminal offence in this jurisdiction and in the jurisdiction in which the offence occurred, although I recognise that the specific offence may not be recognised as having been an offence of corruption in the jurisdiction in which it occurred.
Co-operation is important, but it is not necessarily that important in the jurisdiction in which an offence occurred, provided the offence is an offence in the jurisdiction in which it occurred. This Bill does not actually help us in that scenario. The difference between the provisions of the 2012 Magnitsky Act in the US and the one we are dealing with here is as highlighted in the submission. One is concerned with political sanctions and the other is legislation in the realm of the civil law, but it straddles the criminal law as well. We must show an Irish court before a judge, and convince that judge, that the proceeds in a case are the proceeds of criminal conduct, whatever the definition of that criminal conduct might be.
Mr. William Browder:
The Magnitsky case is a perfect test for what would work here and what would not. I have seen this because I have worked now with many different governments and parliaments on these sanctions. The Magnitsky case is all about, as was said, the uncovering by Sergei Magnitsky of a $230 million scam. He exposed it and he was then arrested by the people he exposed and tortured to death. A number of people were then involved in the cover-up of his murder and the financial crime he had exposed. When we went to get sanctions imposed, certain countries, such as the UK, originally passed a Magnitsky Act that just went after human rights abuses. They did not go after kleptocracy or corruption, and that meant they could only go after about 25 of the 50 people who had been sanctioned in America. That was obviously not very helpful. The people committing the human rights abuse tended to be some of the low-level officials, whereas the high-level officials were the ones who were involved in ordering the crime and in benefiting financially from it. Eventually, the UK added a series of new provisions so that its legislation could capture corruption. We ended up getting all the perpetrators, including those involved in the cover-up after the murder.
As far as this law goes, it is important that the definitions are not so tight that one cannot capture the people involved in a crime. If one can prove that people are benefiting financially from a human rights abuse, that is great, but that is a very small subset of people. To prove that somebody is involved in kleptocracy is much easier. To prove that somebody has been involved in human rights abuse is not that hard, but to connect kleptocracy to human rights abuse is almost impossible. Therefore, it is extremely important that the definition, however it ends up being defined, captures as many of these participants in the crime as possible. When it comes to proving it, there are probably 500 people or entities now on the global Magnitsky list of the US. I cannot say this with certainty, but I believe all those people were sanctioned not because there was any co-operation from any foreign government, but because of information provided by the victims, NGOs or by the US Government itself, which found ways of acquiring such information, through intelligence sources, etc. If the burden of proof is on the balance of probabilities, that proof can come from wherever it needs to come from and it does not need to rely on the co-operation of a foreign government. It would be naive and unrealistic to expect to expect one would get such co-operation from those people.
I thank Mr. Browder. I have several questions. The point made by the representatives of the Department was that the revenue from a human rights abuse might be derived from what is called a profit-generating crime as opposed to human rights abuse. I would like to understand and flesh that out a little. If people were engaged in human trafficking and then using those trafficked people in the commission of further crimes, be that drug distribution or other activities, is the relevant fact that they are incidental to the crime? Is it incidental to the offence in this regard that the perpetrators are treating people in a way that violates their human rights? Is the actual crime committed the drug trafficking or whatever other illegal activity it might be? Is there a link if people’s rights are being violated, in cases where that violation of rights does not generate a profit in itself? I invite Mr. Browder to elaborate on that distinction a little further in respect of the statement that I think came from the Department. That is why I am looking at Ms Woods. I think she may have said it was a profit-generating crime rather than a human rights abuse. Are they not interlinked?
Ms Rachel Woods:
They can be interlinked. The point, however, is that the assets generated by the profit-generating crime can already be seized. We do not need further legislation. If there is human trafficking or drug trafficking, then we already have the powers to seize those assets. In those cases, we do not need to prove the much more difficult human rights abuse link. This is the distinction.
Mr. Brendan Bruen:
To expand on that point, many other crimes involve human rights abuses. Drug trafficking, in and of itself, involves human rights abuse. In a narrow conception of human rights abuses, as set out in the definition, that is somewhat separate to those other offences. To return to Deputy Howlin’s point, when we are looking at an asset that results or is obtained from a certain type of conduct, we are also looking to see if that asset was obtained from drug trafficking, corruption, embezzlement or fraud. I refer to the asset, in and of itself, not having resulted or having been obtained from the human rights abuse aspect of such an offence.
I will broaden out the contributions and invite the other witnesses to comment. The difficulty, as it has been put to us, is that there may be assets within the jurisdiction generated by what are called existing crimes, shall we say, or more common or garden crimes, as opposed to human rights crimes. Assets in those cases are already subject to the laws of the State and to seizure by CAB and similar agencies. We may then have another scenario where a human rights abuser is resident in a different country but who happens to hold assets in this jurisdiction. Our question in that scenario, which would appear to be the category at which this legislation is directed, is how we can be sure that those assets were generated or that wealth was created through activity involving human rights abuse. Is this the central difficulty?
Let us take it back to first principles. Let us say a human rights abuser is resident in another jurisdiction - it can be anywhere - and that human rights abuser is well chronicled and well documented and we would say that the burden of proof is met for the purpose of this consideration and that we have evidence that would arise in a prosecution, and that abuser has assets within the State of Ireland. Is there a difficulty in moving on those assets and would this Bill help us to do that?
Mr. Kevin McMeel:
This goes back to the first point I made. Mr. Browder talks about the intention of the movement as opposed to this particular Bill being concerned with the seizure of all assets that are owned by a human rights abuser regardless of how those assets are generated. I hope I am not misinterpreting what was the intention. I think Mr. Browder agrees with me. If that is the case, then this provision, to my mind, will not achieve that result. That is my concern and the concern of CAB, and I think it is also the concern of the Department in this regard.
How does that differ from sanctions that might be passed at EU level, for example, where certain individuals are no longer permitted to hold, trade in or dispose of assets within the State because they are considered to be persona non gratabecause of international events? How does it differ from that situation?
I do not want the two very separate issues to be confused. The Department of Justice submission made it crystal clear. I made a decision in crafting this legislation to modify the proven proceeds of crime legislation and to broaden the definitions of criminality to include abuses of human rights. This is our stab at it. It is different from many of the legislative pieces that are enacted in other jurisdictions that go under the banner of Magnitsky because I think this is an effective way of doing it. It will not be uniform and it will not capture everything, but it does a number of things. First, it is a signal that we regard human rights abuses as a very serious matter, if people want to have assets here.
If we look at the definition in the Bill, the conduct is connected with a gross human rights abuse if it involves acting as an agent for another in connection with a gross human rights abuse, directing or sponsoring such an activity that is a human rights abuse, and profiting from such an activity or providing material assistance in support of or connection with carrying on a human rights abuse, including by providing goods or services, or financial or technological assistance. It is a broad definition. My understanding is that the Department had two difficulties with the Bill from a practical point of view. One was the dual criminality issue and I am not clear of the Department’s stand on that now. Does it still think the dual criminality test is an essential part?
That is helpful. I am going to wrap up the discussion shortly because we have other issues to discuss. To elucidate that further, and I hope I do not complicate it further, if there is an individual who has clean money and dirty money, the clean money is accumulated through a legitimate business interest and the dirty money is accumulated through criminal activity or certain activity in another jurisdiction which has involved human rights abuses. As I understand it, our objective in this Bill is to render that dirty money available to CAB and other agencies to be able to move on it. There is a difficulty in the sense that the distinction must be made between how the money has been generated and whether it is the clean or dirty money. Is that the issue?
Could I test that one contention, perhaps with the Department of Justice? In essence, CAB is telling us that what is intended in the Bill can already be done. Can Mr. McMeel give me any recent example where somebody who was a gross human rights abuser was moved against in terms of their assets in this State?
Mr. Kevin McMeel:
It was probably in 2014. He was the kleptocrat leader of the Republic of Nigeria in the 1990s and would have been guilty of, or certainly would have come within the definition of, gross human rights abuse. His crime was embezzlement and corruption and, therefore, we were able to seize the moneys. We were agnostic to the fact he was a gross human rights abuser and that did not come into it, other than that it added context to the embezzlement and corruption. We were able to return those funds, which I think were somewhere in the region of $5 million, although I do not want to misquote.
Mr. Kevin McMeel:
The moneys were returned to Nigeria late last year, I think, or the year before, in 2020. That is just an example. It did not matter that they were a gross human rights abuser. The fact they were involved in the abuse of human rights was immaterial to our application and we were able to show that the moneys-----
Excuse me, this will be my final question. In terms of somebody who is a gross human rights abuser who has assets here, simpliciter, is there any way of moving against that person simply because he or she is a notorious abuser of human rights involved in torture?
I will conclude our discussion on that matter but we have other matters before the committee today. I thank the witnesses, both those physically present and Mr. Browder online, for joining us and for their very helpful submissions. We have already waived scrutiny of this Bill but we felt it was useful to have an engagement on it to better understand it. It is with the Minister for the next steps. We have signed off in this committee on its readiness to go forward. It is in the Department’s court in terms of what happens next, but we hope it will progress soon. I look forward to it coming to the next stage. I will release the witnesses as we are dealing with another matter shortly.