Instruments

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

• EU (European Union) Regulation on the Mutual Recognition of Freezing and

Confiscation Orders13 • 2002 SADC (South African Development Community) Protocol on Mutual

Legal Assistance in Criminal Matters • Commonwealth Scheme relating to Mutual Legal Assistance

2.2.2.1 Council of Europe Convention on laundering, search, seizure and confiscation of the proceeds from crime and on the financing of terrorism (2005 Warsaw Convention) The Warsaw Convention applies to requests for the enforcement of orders dealing specifically with money-laundering offenses. It states, in particular, that “a Party which has received a request made by another Party for confiscation concerning instrumentalities or proceeds, situated in its territory, shall: a) enforce a confiscation order made by a court of a requesting Party in relation to such instrumentalities or proceeds; or b) submit the request to its competent authorities for the purpose of obtaining an order of confiscation and, if such order is granted, enforce it.”14

2.2.2.2. The EU Regulation on the mutual recognition of freezing and confiscation orders In the EU, the mutual recognition principle has become a cornerstone of judicial cooperation in criminal matters. Its core proposition, predicated on the relative homogeneity and reciprocal confidence in member states’ processes and fundamental values, is that decisions made in one EU country are executed in another EU country in the same way as if they were issued in the latter.

The principle has also been applied to confiscation and freezing orders. Regulation 2018/1805, which 25 EU member states15 were mandated to apply starting on December 19, 2020, is the latest in a series of successive legal instruments aimed to apply the principle of mutual recognition in this field. The 2018 Regulation is now a single instrument that was merged from two separate regimes dealing with the mutual recognition of freezing orders and confiscation orders.16 Currently, the EU’s legal regime represents the most sophisticated international framework binding 25 member states to implement a regionwide system for the cross-border execution of freezing and confiscation orders.

Under the 2018 Regulation, when a competent authority in one EU member state needs to freeze or confiscate assets that are located in another member state, it submits the request by filling in a standard form for the freezing order or a standard certificate for the confiscation order. The authority in the requested state is bound to execute the freezing or confiscation order within a short time. It can only refuse the request based on a limited number of grounds set out in the regulation. For example, according to article 3, freezing or confiscation orders are to be executed without verification of the double criminality of the acts giving rise to such orders, where those acts are punishable in the issuing state by a custodial sentence of a maximum of at least three years and constitute a criminal offense under a predetermined list (which features, among others, corruption and laundering of proceeds of crime).

In comparison with the previous regime, the 2018 Regulation includes the following:

• A wider scope for the mutual recognition of freezing and confiscation orders, including extended and third-party confiscation as well as NCB confiscation issued by a criminal court • Specific time limits for the recognition or execution of freezing and confiscation orders17 • A standard certificate and a standard form containing all relevant information on the order, designed to streamline the process, to support the executing authorities in identifying the targeted property, and to facilitate speedy action • Reinforced communication channels between the issuing (requesting) and the executing (requested) authorities, for example, in the form of consultations before applying any ground for refusal or postponing action

For the 25 EU member states to which the 2018 Regulation applies, one practical consequence is the need to implement at least three parallel legal regimes (a) to execute requests for mutual recognition vis-à-vis other regulation-bound member states; (b) to execute the same type of requests compared with Denmark and Ireland, based on Council Framework Decisions 2003/577/JHA and 2006/783/ JHA; and (c) to enforce requests from non-EU member states.18

2.2.2.3 SADC Protocol on mutual legal assistance in criminal matters (2002) Under this instrument adopted within the SADC, “the requested State shall, to the extent permitted by its laws, give effect to or permit enforcement of a final order forfeiting or confiscating the proceeds of crime made by a court of the requesting State or take other appropriate action to secure or transfer of the proceeds following a request by the requesting State.”19

2.2.2.4 The Commonwealth scheme relating to mutual legal assistance (Harare Scheme) The Harare Scheme represents an informal arrangement covering international cooperation in criminal matters. Whereas its provisions are not legally binding, the Harare Scheme, which was revised in 2011, commands widespread support and legitimacy across the Commonwealth legal space.

Under the Harare Scheme’s part VI (3)(a) on “Asset Recovery,” “[e]ach country is encouraged to take such measures as may be necessary to: give effect to an order of confiscation or forfeiture issued by a court of a requesting country.”

2.2.3 The relationship between UNCAC and other treaties

According to article 46(7) of UNCAC, the provisions of this latter covering MLA shall apply whenever the requesting and requested jurisdictions are not bound by an MLA treaty. When such a treaty exists, this latter shall in principle prevail unless the States Parties in question agree to apply UNCAC provisions. In any case, States Parties are strongly encouraged to apply UNCAC’s provisions if these facilitate cooperation.20