The International Legal Framework on Direct and Indirect Enforcement
• UNCAC States Parties shall be in a position to trigger both procedures: (a) recognize and enforce foreign confiscation orders issued by another party (direct enforcement) and (b) submit a foreign request to their competent authorities for the purpose of obtaining an order of confiscation and, if such order is granted, give effect to it (indirect enforcement). See Recommendation 5.1.2 in this study. • In relation to foreign (provisional) freezing and seizing orders, States Parties can choose to enforce them directly or indirectly. In practice, the legislation of some surveyed jurisdictions allows for the direct enforcement of such orders. • States Parties should determine, also based on their constitutional requirements on incorporating treaty provisions into their legal systems, the extent to which legislative action is needed to ensure that UNCAC requirements on direct and indirect enforcement are properly introduced and effectively available as part of domestic MLA proceedings. See Recommendation 5.1.1 of this study. • In addition to UNCAC, other multilateral treaty frameworks require parties to enforce foreign freezing and seizing and confiscation orders. States Parties to both UNCAC and one or more such treaties are expected to apply provisions stemming from all of them. Treaties covering the same subject matter can support each other, especially when one instrument contains more detailed provisions. See Recommendation 5.1.5 of this study. • In some cases, domestic authorities and procedures already in place to implement treaty frameworks other than UNCAC may automatically serve to implement UNCAC requirements. In other cases, however, procedures and authorities only may have been established for specific treaty-based offenses such as money laundering. UNCAC States Parties need to ensure that the scope of implementing legislation extends to the full range of UNCAC-based offenses. See Recommendation 5.1.5 of this study. • Ideally, countries should adopt a single legal framework allowing for direct enforcement action to be taken in relation to a broad range of criminal offense reflecting all their treaty-based commitments. It is important to avoid a fragmented approach whereby different procedures or authorities come into play depending on whether the foreign request concerns property involved in corruption or other offenses. See Recommendation 5.1.5 of this study. • The Mechanism for the Review of Implementation of UNCAC, particularly its current review cycle focusing on the implementation of chapter V of the Convention (Asset Recovery), may be leveraged to obtain guidance and exchange good practices to implement UNCAC requirements on direct and indirect enforcement. See Recommendation 5.2.1 of this study.
NOTES 1. UNCAC, Measures and Provisions of the Convention, ch. V, art. 51. 2. UNCAC, Measures and Provisions of the Convention, ch. V, art. 51–9. 3. For example, in many countries where hearsay rules of evidence are relaxed, out-of-court statements are admissible. In others, however, the live testimony of civilian witnesses or law enforcement officers may be required in the courtroom or by sworn recorded testimony.
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