Notes

• 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.

4. The approach outlined here represents the yardstick against which States Parties’ compliance with UNCAC’s chapter V is being assessed in the framework of UNCAC’s

Implementation Review Mechanism. 5. UNCAC, arts. 55(1)(b) and 31(1). 6. UNCAC, art. 2(d). 7. UNCAC, art. 2(e). 8. United Nations Office on Drugs and Crime, Travaux Préparatoires of the Negotiations for the Elaboration of the United Nations Convention against Corruption (New York: United

Nations, 2010), p. 492. 9. Even when States Parties are indeed bound by a specific MLA treaty, UNCAC strongly encourages them to apply article 46 provisions if “they facilitate cooperation,” UNCAC, art. 46(7). 10. UNCAC, art. 54(2)(a)(b). 11. UNCAC, art. 55(8). 12. See, in particular UNTOC, art. 5(4), “Confiscation” and UNTOC, art. 13, “International

Cooperation for Purposes of Confiscation.” 13. Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the Mutual Recognition of Freezing Orders and Confiscation Orders,

PE/38/2018?REV/1, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX %3A32018R1805. 14. 2005 Warsaw Convention, art. 23, “Obligation to Confiscate.” 15. The regulation is not applicable to Denmark and Ireland. 16. Council of European Union, Council Framework Decisions 2003/577/JHA of 22 July 2003 on the Execution in the European Union of Orders Freezing Property or Evidence; Council of European Union, Council Framework Decision 2006/783/JHA of 6 October 2006 on the

Application of the Principle of Mutual Recognition to Confiscation Orders. 17. Concerning freezing orders “where the issuing authority has stated in the freezing certificate that immediate freezing is necessary since there are legitimate grounds to believe that the property in question will imminently be removed or destroyed, or in view of any investigative or procedural needs in the issuing State, the executing authority shall decide on the recognition of the freezing order no later than 48 hours after it has been received by the executing authority. No later than 48 hours after such a decision has been taken, the executing authority shall take the concrete measures necessary to execute the order,”

Regulation (EU) 2018/1805, art. 9(3). Concerning confiscation orders, “the executing authority shall take the decision on the recognition and execution of the confiscation order without delay and, without prejudice to paragraph 4, no later than 45 days after the executing authority has received the confiscation certificate,” Regulation (EU) 2018/1805, art. 20(1). 18. Starting on December 19, 2020, there was to be a transitional period during which freezing and confiscation certificates transmitted before this date would continue to be governed by

Framework Decisions 2003/577/JHA and 2006/783/JHA. 19. South African Development Community (SADC), Protocol on Mutual Legal Assistance in

Criminal Matters (2002), art. 22(1). 20. UNCAC, art. 46(7). 21. 2005 Warsaw Convention, art. 24(2). NCB confiscation orders should not be confused with restitution orders or judgments based on administrative violations. Even among countries with NCB confiscation enforcement authority, there may be no ability to enforce foreign restitution orders or other judgments based on no-forfeiture related proceedings. 22. UNCAC, art. 54(1)(c). Most jurisdictions under examination in this study allow for foreign

NCB orders to be enforced through MLA channels (section 3.3.2 of this study). 23. 2005 Warsaw Convention, art. 23(5). 24. Regulation (EU) 2018/1805, art. 2(2). 25. Regulation (EU) 2018/1805, pmbl. pt. (32). 26. UNCAC, arts. 55(1)(b) and 31(1).