On the modalities for the return of illegally acquired assets forfeited in the Swiss Confederation to the benefit of the population of the Republic of Uzbekistan

16.08.2022

Agreement

between the Republic of Uzbekistan and the Swiss Confederation

The Republic of Uzbekistan and the Swiss Confederation (hereinafter: “Parties”)

Willing to fight effectively against corruption at the domestic and international levels;

Recognizing their common goal of recovering illegally acquired assets on behalf, and to the benefit, of all those harmed by the underlying criminal conduct;

Recalling that in 2012, within the framework of a complex criminal investigation in connection with Ms. Gulnara Karimova, the Office of the Attorney General of Switzerland froze assets totaling approximately CHF 800 million;

Recalling the Memorandum of Understanding on the Framework for the Restitution of Illegally Acquired Assets Forfeited in Switzerland to the Benefit of the Population of the Republic of Uzbekistan between the Swiss Federal Council and the Government of the Republic of Uzbekistan (hereinafter: “Memorandum”) that came into effect on 8 September 2020 and that contains the overarching principles that should govern the restitution of assets definitively forfeited as part of the criminal investigation in connection with Ms. Gulnara Karimova, which was initiated in 2012 by the Office of the Attorney General of Switzerland;

Acknowledging that the present Restitution-Agreement is the “Restitution-Agreement” to which Paragraph 3 of the Memorandum refers;

Considering that Chapter V of the United Nations Convention against Corruption (hereinafter: “Convention”) sets out an international legal framework in the field of asset recovery;

Referring to Article 51 of the Convention, which provides that States Parties shall afford one another the widest measure of cooperation and assistance with regard to the return of assets;

Referring further to Article 57 Paragraph 5 of the Convention, which provides that States Parties may give special consideration to concluding agreements or mutually acceptable arrangements, on a case-by-case basis, for the final disposal of confiscated property;

Recalling Goal 16 of the 2030 Agenda for Sustainable Development to “promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels”, and in particular its targets 16.4 (reduction of illicit financial and arms flows) and 16.5 (reduction of corruption in all its forms);

Recalling the three Universal Values of the 2030 Agenda for Sustainable Development which enable the Sustainable Development Goals to be truly transformative, by placing the person and their inherent dignity at the heart of development efforts, empowering all people to become active partners in this endeavor: Leave No One Behind, Human Rights Based Approach and Gender Equality and Womenʼs Empowerment;

Aware of the need for the international community to develop good practices on asset return, as stipulated in Paragraph 25 of the Addis Ababa Action Agenda, as well as the need to undertake and monitor the restitution in a transparent and accountable manner that satisfies the scrutiny of citizens, civil society and the international community;

Recalling in this regard the Principles for Disposition and Transfer of Confiscated Stolen Assets in Corruption Cases, which were endorsed at the Global Forum on Asset Recovery (GFAR) in December 2017 in Washington and which neither infringe national sovereignty nor domestic principles of law;

Have agreed as follows:

ARTICLE 1

Object and purpose of the present Restitution-Agreement

1. The present Restitution-Agreement concerns the modalities for the return — to the benefit of the population of the Republic of Uzbekistan — of all assets, including interest accrued over time, that meet or will meet the following cumulative conditions:

a. The assets have been definitively forfeited as part of the criminal investigation in connection with Ms. Gulnara Karimova, which was initiated in 2012 by the Office of the Attorney General of Switzerland; and

b. The assets have been allocated to the Republic of Uzbekistan by Sharing-Agreements between the Swiss Federal Council and the Government of the Republic of Uzbekistan, which refer to the present Restitution-Agreement.

2. The assets defined under Article 1 Paragraph 1 of the present Restitution-Agreement are hereinafter referred to as the “Funds”. At the time of signature of the present Restitution-Agreement, the Funds amount to approximately USD 131 million.

3. The purpose of the present Restitution-Agreement is to assert the Partiesʼ willingness towards the establishment of a single restitution mechanism for the return of the Funds to the benefit of the population of the Republic of Uzbekistan.

ARTICLE 2

General principles

The Parties agree that the restitution and the implementation of the present Restitution-Agreement shall be based on the following principles:

a. The restitution of the Funds shall benefit the population of the Republic of Uzbekistan and follow the objective of improving its living conditions, strengthening the rule of law or fighting impunity;

b. The Parties recognize that they have a mutual interest in ensuring that the Funds are not at risk of being misappropriated again and that they have obligations towards their own citizens for providing such assurances;

c. All steps shall be taken to ensure that the Funds benefit neither persons whose assets have been forfeited or who were involved in the commission of the offences, nor the heirs or associates of such persons;

d. The end use of the Funds shall support sustainable development, be in line with the development strategy of the Republic of Uzbekistan and be consistent with the 2030 Agenda for Sustainable Development;

e. Transparency and accountability shall be guaranteed;

f. Mechanisms monitoring the use of the Funds shall be established and financed from the Funds;

g. When restituting the Funds, existing political and institutional frameworks (policies and programs) shall be used when considered appropriate by the Parties, in order to ensure coherence, avoid duplication and optimize efficiency;

h. Information on the restitution, administration and use of the Funds shall be made public and available to the population in both Switzerland and the Republic of Uzbekistan;

i. Consideration shall be given to the role of the public (civil society or community-based organizations) to fulfill these principles.

j. The Parties shall maintain a fruitful cooperation based on strong partnership, continuing constructive dialogue and mutual respect, which promote trust and confidence, and shall be guided by the principles of ethics and transparency.

ARTICLE 3

Single restitution mechanism

1. The return of the Funds shall be implemented through a United Nations (hereinafter: “UN”) Multi-Partner Trust Fund called “Uzbekistan Vision 2030 Fund” (hereinafter: “Uzbekistan Vision 2030 Fund”).

2. The Uzbekistan Vision 2030 Fund is based on the following documents, which are accessible on the website of the United Nations Development Programme (hereinafter: “UNDP”) Multi-Partner Trust Fund Office and which are not an integral part of the present Restitution-Agreement:

a. Standard Administrative Arrangement between the Swiss Federal Council as custodian of funds recovered in Switzerland, on behalf of and for the benefit of the population of the Republic of Uzbekistan and the UNDP Multi-Partner Trust Fund Office (hereinafter: “SAA”);

b. Memorandum of Understanding between the Participating UN Organizations and the UNDP Multi-Partner Trust Fund Office regarding the Operational Aspects of the “Uzbekistan Vision 2030 Fund” in Uzbekistan (hereinafter: “MoU”);

c. Terms of Reference of the United Nations Multi-Partner Trust Fund “Uzbekistan Vision 2030 Fund” (hereinafter: “TOR”);

d. Documents regulating the relationship with other actors, such as the UN Specialized Agencies.

3. The Uzbekistan Vision 2030 Fund shall decide on the allocation of the Funds and monitor the use of the Funds, taking into account the evolving needs of the Republic of Uzbekistan over the duration of the entire restitution process.

ARTICLE 4

Organs of the Uzbekistan Vision 2030 Fund

1. The Uzbekistan Vision 2030 Fund is composed of the following organs:

a. High-level Strategic Committee: The High-level Strategic Committee maintains political dialogue on the restitution, provides recommendations on the strategic direction and structure of the Uzbekistan Vision 2030 Fund, and provides oversight over its strategic direction.

b. Management Committee: The Management Committee is responsible for the management of the Uzbekistan Vision 2030 Fund.

c. Secretariat: The Secretariat is housed in the UN Resident Coordinatorʼs Office in Tashkent and supervised by the UN Resident Coordinator in Tashkent. The Secretariat supports the Management Committee and the High-level Strategic Committee in all their tasks and is responsible for the daily management of the Uzbekistan Vision 2030 Fund.

d. Administrative Agent: The Administrative Agent is the UNDP Multi-Partner Trust Fund Office in New York. It administers the Funds transferred to the Uzbekistan Vision 2030 Fund.

e. Implementing Organizations: The Implementing Organizations implement the programmatic activities funded by the Uzbekistan Vision 2030 Fund.

f. Civil Society Advisory Council: The Civil Society Advisory Council is composed of representatives of national and international civil society organizations, and academia. It ensures interaction between the Uzbekistan Vision 2030 Fund and civil society. It has a consultative role.

2. The composition, functions and competences of the organs of the Uzbekistan Vision 2030 Fund are described in the TOR.

3. Through their participation in the High Level Strategic Committee and in the Management Committee, the Parties shall ensure that the principles mentioned in Article 2 of the present Restitution-Agreement are respected.

ARTICLE 5

Transfers of the Funds

The Swiss Confederation shall transfer the Funds to the Uzbekistan Vision 2030 Fund in accordance with Section I of the SAA and with the schedule of payments set out in Annex B to the SAA. The transfers shall be made to the following account, denominated in USD and held by the UNDP Multi-Partner Trust Fund Office:

Name of Bank: Citibank, N.A. Address of Bank: 111 Wall Street, New York, New York 10043 Account Number of Beneficiary: 36349626 SWIFT Code: CITIUS33 ABA: 021000089 Currency: USD Name of Account Beneficiary: UNDP Multi-Partner Trust Fund Office Address of Account Beneficiary: 304 East 45th Street, 11th Floor, New York, NY 10017, USA Reference: Uzbekistan Vision 2030 Fund Account

ARTICLE 6

Use of the Funds

1. The Funds shall be used for the implementation of the Uzbekistan Vision 2030 Fund in accordance with the principles and procedures provided for in the present Restitution-Agreement, the TOR, the SAA and the MoU, and in line with the UN Sustainable Development Cooperation Framework for Uzbekistan (UNSDCF).

2. The Parties shall use their best efforts to ensure that in all procurement processes, as well as in all other processes related to program identification and selection, the highest standards of transparency and accountability are built in and implemented.

3. Eligible programs to be financed by the Funds should address soft and hard components in an appropriate manner, depending on the nature of each program, and be implemented in accordance with the principles and criteria provided for in the UNSDCF and in the TOR. Eligible programs shall also address issues of empowerment and capacity building (people and institutions), knowledge transfer, development and implementation of systems and policies, and build in citizen participation, including the principle of “leave no one behind”.

4. The Funds shall not be used:

a. for payments or other benefits, directly or indirectly, (i) prohibited by a decision of the United Nations Security Council taken under Chapter VII of the Charter of the United Nations; (ii) that in any manner would involve, support, promote or facilitate, or would have the appearance or effect of involving, supporting, promoting or facilitating, any unlawful, corrupt, fraudulent or unethical activities or practices, including favoritism or nepotism; or (iii) to public officials of the Parties, or their personal or business associates, not in line with UN policies and procedures;

b. for large-scale infrastructure programs, in sectors such as Energy, Road, Railway, Transport, Logistics, Telecommunication;

c. for programs, or any component of a program, that may serve political purposes or proselytism.

5. The Parties shall use all reasonable efforts to ensure that the Funds are not used to provide support or assistance to individuals or entities associated with terrorism as designated by any UN Security Council sanctions regime.

ARTICLE 7

Monitoring of the use of the Funds

The Parties shall provide all necessary support to the monitoring and evaluation activities provided for in the TOR, the SAA and the MoU, in order for these activities to be in line with the highest monitoring and accountability standards as well as the highest degree of due diligence.

ARTICLE 8

Reporting, transparency and accountability

The Parties shall provide all necessary support to the reporting, transparency and accountability procedures and measures provided for in the TOR, the SAA and the MoU.

ARTICLE 9

Costs

1. The Parties shall use their best efforts to ensure that the costs related to the Uzbekistan Vision 2030 Fund are as low as possible.

2. The Parties acknowledge that:

a. The Administrative Agent will be entitled to allocate an administrative fee of one percent (1%) of the Funds to cover the Administrative Agentʼs costs of performing the Administrative Agentʼs functions;

b. Indirect costs of the Participating UN Organizations recovered through program support costs will be seven percent (7%) of the Funds and that all other costs incurred by each Participating UN Organization in carrying out the activities for which it is responsible under the Uzbekistan Vision 2030 Fund will be recovered as direct costs;

c. The costs of the Secretariat will amount to a maximum of two percent (2%) of the Funds.

3. The Parties agree that the actual costs incurred by the Early Secretariat, the funding of which was advanced by the UN Development Coordination Office, shall be reimbursed through the Funds.

4. Costs incurred by the Parties in relation to their respective activities in the implementation of the present Restitution-Agreement shall not be reimbursed by the Funds, but rather be borne by the Parties. Such costs include notably remuneration of Partiesʼ representatives in the organs of the Uzbekistan Vision 2030 Fund for the time spent preparing and attending meetings, and compensation for their related travel costs.

ARTICLE 10

Disclosure

1. The Parties agree to disclose the present Restitution-Agreement.

2. The Parties acknowledge that information and documents related to the Uzbekistan Vision 2030 Fund shall be disclosed and posted for public information on the website of the UNDP Multi-Partner Trust Fund Office, in accordance with the TOR, the SAA and the MoU. Such information and documents may also be posted on other websites of the UN or on the relevant websites of the Parties.

3. Information and documents referred to in Article 10 Paragraph 2 of the present Restitution-Agreement include and are not limited to:

a. The SAA, the MoU and the TOR;

b. Information on the contributions to the Uzbekistan Vision 2030 Fund;

c. Information on transfers and expenditures;

d. Annual and final financial and narrative reports.

4. The Parties acknowledge that evaluation and audit reports shall be disclosed in accordance with the rules and regulations of the Implementing Organization concerned, the TOR, the SAA and the MoU.

ARTICLE 11

Communication

The communication related to the Uzbekistan Vision 2030 Fund shall be made in accordance with the TOR, the SAA and the MoU.

ARTICLE 12

Anti-corruption and good governance

1. The Parties acknowledge that the SAA and MoU provide mechanisms for the reporting of allegations of fraud, corruption, unethical behaviour, collusion, coercion, obstruction, sexual exploitation, sexual abuse and sexual harassment in the use of Funds received by the Uzbekistan Vision 2030 Fund, and that such allegations will be treated in accordance with the rules and regulations of the Participating UN Organizations and the Administrative Agent as specified in the SAA and MoU. Such allegations shall be reported in accordance with the mechanisms specified above.

2. With respect to the Funds provided through the present Restitution-Agreement to the Uzbekistan Vision 2030 Fund, the Parties shall provide all necessary support, as requested by the Participating UN Organizations and the Administrative Agent, in the Participating UN Organizationsʼ and the Administrative Agentʼs implementation of their procedures and measures described in Article 12 Paragraph 1 of the present Restitution-Agreement with respect to allegations of fraud, corruption, unethical behaviour, collusion, coercion, obstruction, sexual exploitation, sexual abuse and sexual harassment.

3. The Parties shall take appropriate measures to prevent and address any corrupt, fraudulent, collusive, coercive, obstructive and unethical practices, including those related to conflict of interest, in connection with the implementation of the present Restitution-Agreement.

ARTICLE 13

Settlement of differences

Differences arising out of interpretation, operation and implementation of the present Restitution-Agreement shall be settled amicably through consultation between the Parties.

ARTICLE 14

Effect

The present Restitution-Agreement creates legally binding rights or obligations only between the Parties. In accordance with Article 100 of the United Nations Charter, the Parties undertake to respect the exclusively international character of the responsibilities of the UN staff and acknowledge that the UN staff shall not receive instructions from the Parties.

ARTICLE 15

Entry into force

The present Restitution-Agreement shall enter into force upon the last signature by the Parties.

ARTICLE 16

Duration

The present Restitution-Agreement shall remain in force until the Parties have fulfilled their obligations as set forth in the present Restitution-Agreement and until the activities provided for in the TOR, the SAA and the MoU have been completed.

ARTICLE 17

Amendment, termination and unspent balances

1. The present Restitution-Agreement may be amended at any time by mutual consent of the Parties. All such amendments shall be agreed upon by the Parties in writing. These amendments shall enter into force in accordance with Article 15 of the present Restitution-Agreement.

2. Prior to the termination of the present Restitution-Agreement by either Party or of the SAA by Switzerland, the Party contemplating termination shall request consultations on the reasons of termination. If within six months of the date of the request these consultations have not led to a solution, the present Restitution-Agreement may be terminated by either Party on thirty-five (35) days written notice to the other Party and the SAA may be terminated by Switzerland in accordance with the provisions of the SAA.

3. In the event that the UNDP Multi-Partner Trust Fund Office sends a termination notice of the SAA to Switzerland, Switzerland shall immediately send a notice of termination of the present Restitution-Agreement to Uzbekistan with the effect that the present Restitution-Agreement shall terminate on the same day as the SAA.

4. Notwithstanding the termination of the present Restitution-Agreement, the Funds transferred to the Uzbekistan Vision 2030 Fund up to and including the date of termination of present Restitution-Agreement shall continue to be used to support the Uzbekistan Vision 2030 Fund until completion of the Uzbekistan Vision 2030 Fund. Any balance remaining in the Uzbekistan Vision 2030 Fund upon completion of the Uzbekistan Vision 2030 Fund shall be used for a purpose mutually agreed upon between the Parties.

5. Any Funds not yet transferred to the Uzbekistan Vision 2030 Fund at the date of termination of the present Restitution-Agreement shall be used for a purpose mutually agreed upon between the Parties. In that case, the Parties shall enter into negotiations in order to find another mutually agreeable solution for the return of such Funds.

ARTICLE 18

Appendix

For illustration purposes only, a diagram describing the architecture of the restitution mechanism is attached to the present Restitution-Agreement.

IN WITNESS WHEREOF, the undersigned being duly authorized by their respective Governments, have signed this Agreement.

Signed in two originals, in the city of Bern, Switzerland, in the English language, on the 16 August 2022.

(signatures)

APPENDIX For illustration purpose only