BOX 7.13
Asset Recovery Pursuant to an MLA Request in France
In France, an MLA request based on a foreign court decision is sent by the Ministry of Justice to the competent prosecutor’s office, which will ask the court to confiscate the assets. If the court decides to do so, the confiscated assets become the property of the French government. The competent officials (in particular, those within the Treasury Department) will determine whether France is obliged to return the assets under an international agreement. Even if there is no such obligation, the assets may be returned at the discretion of the government or under an ad hoc agreement with the requesting jurisdiction.
7.7 Asset Return In general, there are two methods for asset return if an MLA request is used for confiscation or compensation. The first method is direct recovery through the judicial process. Such recovery can occur if the requested jurisdiction permits the court to order compensation or damages directly to the foreign jurisdiction, or permits the court or competent authority to recognize the foreign jurisdiction as a legitimate owner in a confiscation action. Direct recovery may also occur “voluntarily” through plea agreements by which a defendant agrees to voluntarily repatriate assets located in a foreign jurisdiction to the court in which he or she is convicted.222 In such a case, a practitioner must request that the foreign jurisdiction lift any provisional restraint order that it had previously requested be imposed on the assets. Also, worldwide confiscation orders may be enforced directly by a court without the need for a treaty (see box 7.13 for an example). The second, more common, method of asset return is pursuant to treaties, agreements, or statutory authority to distribute assets after a final order of confiscation. If an MLA request has been submitted pursuant to UNCAC, states parties have an obligation to return confiscated assets in cases of public corruption or when the requesting party reasonably establishes prior ownership or damages to the state.223 In other cases, multilateral and bilateral treaties, asset sharing agreements (either on a case-by-case basis or by permanent agreement), and statutory authorities may be used to share or return the recovered funds (see chapter 9 for additional information on these avenues).
assistance regimes in Commonwealth countries should permit evidence gathered for a criminal proceeding to be subsequently used in civil proceedings and requests for such use should be granted in corruption cases.” 222. In the Montesinos case in Peru, money was recovered from Switzerland through a system of waivers (that is, those who pleaded guilty provided information and signed waivers giving Peru the rights to the funds). 223. UNCAC, art. 57(3)(a) and 57(3)(b). In both cases, the obligation applies only to the convention’s offenses and requires compliance with UNCAC’s provisions on international cooperation and a final judgment in the requesting jurisdiction (requirement for judgment can be waived).
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Asset Recovery Handbook