ASSET SHARING Between countries in criminal cases - PowerPoint Presentation

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ASSET SHARINGBetween countries in criminal cases

Saskia de Vries, seconded prosecutor to the IPA 2010 project Fight against organised crime and corruption: Strenghtening the Prosecutors' Network

Seizure and confiscation of assets in another country

General rule: the assets stay in the country where they were seized. Exception: if the assets were stolen or otherwise illegally obtained, the assets will need to be returned to bona fide ownersRatio: the country in which the assets were seized is rewarded for its efforts with regard to MLA.

Asset sharing

If assets have been seized in country B at the (rogatory) request of country A, these assets can be shared between country A and B after a final verdict or plea agreement (which includes confiscation) in country A. This is an exception to the rule that assets seized in another country will fall to that country.

Legal basis

UN Convention against illicit trafficking of drugs and psychotropic substances (Vienna, 1988) CoE Convention on laundering, search, seizure and confiscation of proceeds of crime (Strasbourg, 1990)UN convention on Transnational Organized Crime (New York, 2004) UN Convention against Corruption (2005)Council Framework Decision on the application of the principle of mutual recognition of confiscation orders (2006)

UN Convention against illicit drugs

Article 5: 5. a) Proceeds or property confiscated by a Party pursuant to paragraph 1 or paragraph 4 of this article shall be disposed of by that Party according to its domestic law and administrative procedures.b) When acting on the request of another Party in accordance with this article, a Partymay give special consideration to concluding agreements on:i) Contributing the value of such proceeds and property, or funds derived from thesale of such proceeds or property, or a substantial part thereof, tointergovernmental bodies specializing in the fight against illicit traffic in andabuse of narcotic drugs and psychotropic substances;ii) Sharing with other Parties, on a regular or case-by-case basis, such proceeds orproperty, or funds derived from the sale of such proceeds or property, inaccordance with its domestic law, administrative procedures or bilateral ormultilateral agreements entered into for this purpose.

CoE Convention on laundering Proceeds of Crime

Article 15 – Confiscated propertyAny property confiscated by the requested Party shall be disposed of by that Party in accordance with its domestic law, unless otherwise agreed by the Parties concerned

UN Convention on Transnational Crime

Article 14: In accordance with articles 12 and 13 of this Convention, a State Party may give specialconsideration to concluding agreements or arrangements on:(a) Contributing the value of such proceeds of crime or property or fundsderived from the sale of such proceeds of crime or property or a part thereofto the account designated in accordance with article 30, paragraph 2 (c), of thisConvention and to intergovernmental bodies specializing in the fight againstorganized crime;(b) Sharing with other States Parties, on a regular or case-by-case basis,such proceeds of crime or property, or funds derived from the sale of suchproceeds of crime or property, in accordance with its domestic law or administrativeprocedures.

UN Convention against Corruption

Art. 57: (c) In all other cases, give priority consideration to returning confiscatedproperty to the requesting State Party, returning such property to its prior legitimateowners or compensating the victims of the crime.4. Where appropriate, unless States Parties decide otherwise, the requestedState Party may deduct reasonable expenses incurred in investigations, prosecutionsor judicial proceedings leading to the return or disposition of confiscated property pursuant to this article.5. Where appropriate, States Parties may also give special consideration to concluding agreements or mutually acceptable arrangements, on a case by case basis, for the final disposal of confiscated property.

EU Framework decision

Only applicable between member states of EUAssets under 10.000 euro will fall to the executing State in all other cases, 50 % of the amount which has been obtained from the execution of the confiscation order shall be transferred by the executing State to the requesting State.

Best practices Bring the topic up as soon as possible after the seizure of assets

Involve the Asset Recovery OfficesDraft a written agreement (see reader)50/50 division is usual Think about exceptions, such as victim compensation and embezzlement of public funds