The International Legal Framework on Direct and Indirect Enforcement
lies in the discretion left to States Parties to establish either a direct or an indirect mechanism to enforce foreign freezing and seizing orders (article 54(2)(a)). In practice, when a party receives a request for the enforcement of a freezing and seizing order, according to article 54(2)(a), it “may choose to establish procedures either for recognizing and enforcing [it] or for using [it] as the basis for seeking the issuance of its own freezing or seizure order” (United Nations 2010, 216). When, instead, the request is not backed up by a freezing and seizing order, the requested party will obviously have no choice but to trigger its own domestic procedure to issue a freezing and seizing order (article 54(2)(b)). Whether the request for provisional measures is accompanied by a freezing and seizing order, the requesting party must satisfy the requested party that “there are sufficient grounds for taking such actions and that the property would eventually be subject to an order of confiscation […].”10 Also, before lifting any provisional measure, the requested party shall, “wherever possible, give the requesting State Party an opportunity to present its reasons in favor of continuing the measure.”11 The legislation and practice of a number of surveyed jurisdictions (although not the majority of them) confirm that the direct enforcement of foreign provisional measures, although not technically compulsory under UNCAC, is indeed available and used.
2.2 ENFORCEMENT OF FOREIGN CONFISCATION ORDERS UNDER OTHER LEGAL INSTRUMENTS Whereas UNCAC provisions cover proceeds and instrumentalities of corruption-related offenses, identical or similar language is found in other multilateral instruments with overlapping (or partially overlapping) geographical or substantive scopes of application.
2.2.1 The 1998 drug convention and UNTOC Both the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1998 (1998 Drug Convention) and the United Nations Convention against Transnational Organized Crime envisage mechanisms for international cooperation in confiscation covering a broad range of drug trafficking and organized crime–related offenses. The 1988 Drug Convention, in particular, represents the original source of several articles, including on confiscation matters, that were subsequently introduced into more recent criminal justice treaties and used as inspiring text for UNCAC.12
2.2.2 Regional instruments Various regional instruments request that parties establish enforcement mechanisms to recover tainted assets using MLA procedures. These include the following: • 2005 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism
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