Orders without Borders
INTERNATIONAL DE VELOPMENT IN FOCUS
Direct Enforcement of Foreign Restraint
and Confiscation Decisions
Stefano Betti, Vladimir Kozin, and Jean-Pierre Brun
I N T E R N AT I O N A L D E V E L O P M E N T I N F O C U S
Orders without Borders
Direct Enforcement of Foreign
Restraint and Confiscation
Decisions
STEFANO BETTI, VL ADIMIR KOZIN, AND JEAN-PIERRE BRUN
© 2022 International Bank for Reconstruction and Development / The World Bank
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Orders without Borders: Direct Enforcement of Foreign Restraint and Confiscation Decisions.
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Contents
Acknowledgments vii
Abbreviations xi
CHAPTER 1 Introduction 1
1.1 Background 1
1.2 Objectives, Structure, Audience 2
1.3 Methodology 3
Notes 4
The International Legal Framework on Direct and Indirect
CHAPTER 2
Enforcement 5
2.1 Un convention against corruption 5
nforcement of foreign confiscation orders under other legal
2.2 E
instruments 11
he enforcement of foreign ncb confiscation orders in the
2.3 T
international legal framework 14
2.4 Takeaways 14
Notes 15
CHAPTER 3 Domestic Legal Approaches to Direct Enforcement 17
3.1 Overview 17
3.2 Authorities Involved in Direct Enforcement 23
3.3 Scope of Direct Enforcement Action 24
3.4 Scope of the Examination by Requested Jurisdictions 27
3.5 Existence of a Treaty and Reciprocity 30
3.6 Substantive Conditions and Grounds for Refusal 30
3.7 Direct Enforcement of Freezing and Seizing Orders 35
3.8 Rights of Interested Parties 39
3.9 Takeaways 43
Annex 45
Notes 51
Challenges and Obstacles to Direct Enforcement
CHAPTER 4
Action 55
4.1 Overview 55
imited Familiarity with and Use of Direct Enforcement
4.2 L
Procedures 55
4.3 Lack of Sufficient, or Sufficiently Precise, Information 58
iii
iv | Orders Without Borders
Difficulties Stemming from Lack of non-conviction-based
4.4
(NCB) Procedures 59
4.5 Lack of Understanding of Foreign Procedures 59
4.6 Competing Requests from Different Jurisdictions 60
4.7 Resource Constraints in Requested Jurisdictions 60
4.8 Differences in Legal Systems and Procedures 60
Slow and Time-Consuming Confiscation Proceedings in
4.9
Requesting Jurisdictions 61
4.10 Burdens for Requested Jurisdictions in Maintaining Temporary
Measures on Perishable or High-Cost Items 62
Lengthy Processes in the Requested Jurisdiction to Determine
4.11
Whether the Conditions for Direct Enforcement Have
Been Fulfilled 62
4.12 Confiscation Orders Contained in Long and Bulky
Documents 63
4.13 Conditionality Placed on the Direct Enforcement of Foreign
Confiscation Orders 64
4.14 Takeaways 64
Notes 65
CHAPTER 5 Recommendations 67
5.1 Establishing and Enhancing Legal Frameworks 67
5.2 Effectively Applying Existing Legal Frameworks 72
Notes 77
References and Other Readings 78
Appendix A UNCAC Provisions (Excerpts) 81
Appendix B Questionnaire for National Experts 87
Appendix C Surveyed Countries’ Legal Frameworks (Excerpts) 91
Boxes
Case Study 3.1: Nigeria’s path toward comprehensive direct enforcement
legislation 19
Case Study 3.2: Use of crime-specific (money-laundering) statutes:
the case of Cyprus 20
Case Study 3.3: Use of general mechanisms for the recognition of foreign criminal
judgments: the case of Italy 21
Case Study 3.4: Authorities involved in direct enforcement in Canada 23
Case Study 3.5: Value confiscation and recognition of foreign confiscation orders:
Recent Canadian and UK jurisprudence 24
Recognition of non-conviction-based (NCB) foreign
Case Study 3.6:
orders in France and Canada 26
Case Study 3.7: Hong Kong SAR, China—direct enforcement of non-conviction-
based (NCB) foreign confiscation orders 27
Case Study 3.8: UK jurisprudence on limiting the scope of examination for foreign
confiscation orders 29
Case Study 3.9: British Virgin Islands’ Direct Enforcement Procedure and
Conditions 31
Case Study 3.10: Singapore’s use of the disposal inquiry mechanism in mutual legal
assistance (MLA) proceedings 32
Case Study 3.11: New Zealand’s procedure for the direct enforcement of foreign
restraining orders 35
Case Study 3.12: South Africa’s template application for the registration
of foreign restraint orders 36
Case Study 3.13: South Africa’s template notification to affected parties 40
Contents | v
tatistical information on enforcement action in surveyed
Case Study 4.1: S
countries 56
ew Zealand’s opening of a domestic investigation 57
Case Study 4.2: N
on-execution in France of a request for confiscation regarding
Case Study 4.3: N
immoveable property 58
witzerland’s evidentiary challenges with common law
Case Study 4.4: S
countries 61
Case Study 4.5: Singapore’s experience with foreign authorities going “cold” 62
he Lucy case in the United States: corruption and the illegal wildlife
Case Study 4.6: T
trade 63
Tables
Table 3.1 Main stages and flow of direct enforcement procedures 42
Table A3.1 Direct and indirect enforcement country comparison,
by legal system 45
Acknowledgments
This study is the result of special collaborative efforts from colleagues around
the world. Their time and expertise were invaluable in developing a tool to
familiarize practitioners with the use of direct and indirect enforcement
mechanisms to recover proceeds and instrumentalities of corruption through
international cooperation.
This publication was written by Stefano Betti (International Security and
Criminal Policy Expert), Vladimir Kozin (Crime Prevention and Criminal Justice
Officer, UNODC), and Jean-Pierre Brun (Senior Financial Specialist,
World Bank). The authors are especially grateful to Emile Van der Does
(StAR Coordinator) and Jean Pesme (Global Director, World Bank) for their
overall guidance and support.
The team benefited from many insightful comments that helped shape
the study during the peer review process. Additionally, the views and input of
practitioners from 31 jurisdictions were solicited through a written survey and
an online Expert Group Meeting held on June 18, 2020. Special thanks go to the
Permanent Missions to the United Nations (Vienna) for providing input and sup-
porting the identification of relevant national experts. The authors wish to
extend a special thanks to the practitioners who offered their experience, per-
spectives, and drafting suggestions throughout the process.
JURISDICTION NAME AND POSITION
Australia Sarbjeet Banwait
Senior Litigation Lawyer—VIC
Criminal Assets Litigation
Australian Federal Police
Brazil Cristina Luisa Hedler
Advisor at the General Assets Recovery
Coordination—CGRA/DRCI/SENAJUS
Brazil Duílio Mocelin Cardoso
General Coordinator of the General Assets Recovery
Coordination—CGRA/DRCI/SENAJUS
Brazil Edson Fabio Garutti Moreira
General Coordinator of the General Institutional Articulation
Coordination—CGAI/DRCI/SENAJUS
vii
viii | Orders Without Borders
JURISDICTION NAME AND POSITION
Canada Ivan Nault
Counsel
International Assistance Group
Criminal Law Operations Section
National Litigation Sector
Department of Justice Canada
China Mei Fen
Official
Department of International Cooperation
Central Commission of Discipline Inspection (CCDI)
Commissioner of the National Commission of Supervision (NCS)
China Huang Er
Official
Department of International Cooperation
Central Commission of Discipline Inspection (CCDI)
Commissioner of the National Commission of Supervision (NCS)
China Szeto Ying Lok
Senior Government Counsel
Department of Justice
Hong Kong SAR, China
China Lin Zeyu
Permanent Mission of China, Vienna
Cyprus Maria Kyrmizi Antoniou
Senior Counsel
Republic Unit for Combating Money Laundering
MOKAS FIU, ARO Cyprus
Egypt, Ahmed Mohamed Abdelaziz Osman
Arab Rep. Office of the Prosecutor-General
France Sophie Verneret-Lamour
MLA team
Ministry of Justice
France Anne Haller
Head of the Legal Division
French Agency for the Management and Recovery of Forfeited and
Confiscated Assets (Agrasc)
India Amit Dua
IRS
Joint Director
Enforcement Directorate, New Delhi
Indonesia Yusfidli Adhyaksana
Legal/Attorney-General’s Office Attaché
Indonesian Embassy, Singapore
Italy Michele Fini
Office for International AffairsDirectorate General for International
Affairs and Judicial CooperationMinistry of Justice
Kazakhstan Issatay Jahanger
Senior Assistant to the Prosecutor General
Prosecutor General’s Office
Latvia Dace Sauša
Lawyer
Department of the International Cooperation
Ministry of Justice
Lebanon Judge Rana Akoum
Focal Point on Anti-Corruption Cooperation
Ministry of Justice
Acknowledgments | ix
JURISDICTION NAME AND POSITION
New Craig Hamilton
Zealand Detective Inspector/Manager Asset Recovery Units
Asset Recovery Unit
Financial Crime Group
New Zealand Police
Nigeria Aliyu Wali
Senior Project Officer
External Cooperation Unit
EFCC
Nigeria Barr Abba Muhammed
Senior Legal Analyst
EFCC
Nigeria Emmanuel Ikechukwu Nweke
Permanent Mission of Nigeria, Vienna
Nigeria Chisom Aghadinuno
Federal Ministry of Justice
Russian Victor Baldin
Federation Head
Department for Supervision of the Enforcement of Anti-Corruption
Legislation
General Prosecutor’s Office
Russian Aslan Yusufov
Federation Deputy Head
Department for Supervision of the Enforcement of Anti-Corruption
Legislation
General Prosecutor’s Office
Russian Vadim Tarkin
Federation Deputy Director
Department for International Legal Cooperation
Ministry of Justice
Russian Olga Mokhova
Federation Chief Prosecutor
Department for Supervision of the Enforcement of Anti-Corruption
Legislation
General Prosecutor’s Office
Russian Natalia Primakova
Federation Second Secretary
Department for New Challenges and Threats
Ministry of Foreign Affairs
Sergey Plokhov, Head, Department for Institutional and Legal
Cooperation - Deputy Head, Directorate-General for International
Legal Cooperation, General Prosecutor’s Office
Singapore Teo Yu Chou
Deputy Senior State Counsel
Attorney-General’s Chambers
Singapore Muhammad Faiz Khafidz
Case Manager
Attorney-General’s Chambers
South Africa Adv. Dianne Willman
Deputy Director of Public Prosecutions
Spain Pedro Perez Enciso
Senior Prosecutor at International Cooperation Unit
Switzerland Julia Volken
Deputy Head
Mutual Legal Assistance Unit l
Federal Office of Justice
x | Orders Without Borders
JURISDICTION NAME AND POSITION
United Teresa C. Turner-Jones
States Sr. Trial Attorney
U.S. Department of Justice
Criminal Division
Money Laundering Asset Recovery Section
StAR Emile Van Der Does De Willebois
Initiative Lead Financial Sector Specialist and Global Lead for Financial Market
Integrity, World Bank, Coordinator of the StAR Initiative
StAR Badr El Banna
Initiative Crime Prevention and Criminal Justice Officer
Corruption and Economic Crimes Branch
United Nations Office on Drugs and Crime (UNODC), Stolen Asset
Recovery Initiative
Abbreviations
CARIN Camden Assets Recovery Inter-Agency Network
CoSP Conference of the States Parties
EGM Expert Group Meeting
EU European Union
FATF Financial Action Task Force on Money Laundering
GRECO Group of States Against Corruption
NCB non-conviction-based
OECD Organisation for Economic Co-operation and
Development
MLA mutual legal assistance
MLACMA Mutual Legal Assistance in Criminal Matters Act
StAR Stolen Asset Recovery Initiative
UNCAC United Nations Convention against Corruption
UNODC United Nations Office on Drugs and Crime
UNTOC United Nations Convention against Transnational
Organized Crime
xi
1 Introduction
1.1 BACKGROUND
Despite the growing number of grand corruption cases causing worldwide
outrage and the vast amounts of stolen assets moved to foreign jurisdictions,
global recovery efforts are still struggling with severe institutional, legal, and
practical challenges. The proportion of successful procedures leading to the
return of looted assets to rightful owners is still inadequate when compared with
the estimated value of proceeds of corruption circulating worldwide.
In various international settings, countries emphasize challenges created
by excessive procedural requirements and related delays in the asset recovery
process, practitioners’ poor familiarity with foreign legal procedures, lack of
trust between jurisdictions, and, crucially, differences in confiscation regimes.1
In its Resolution 7/1, “Strengthening mutual legal assistance for international
cooperation and asset recovery,” the Conference of States Parties to the United
Nations Convention against Corruption (UNCAC) specifically called for the
enactment of adequate mechanisms to, among other things, allow or expand
cooperation in the enforcement of foreign seizure and restraint orders and
confiscation judgments, including through raising awareness for judicial
authorities and through permitting, where possible under national law, recog-
nition of non- conviction-based seizure and freezing orders and of confisca-
tion judgments.2
This study is part of the World Bank and the United Nations Office on Drugs
and Crime (UNODC) Stolen Asset Recovery (StAR) Initiative.3 Since its incep-
tion, the StAR Initiative has provided a global platform (a) to enhance countries’
ability to trace and return tainted property and (b) to prevent the laundering of
proceeds from corruption offenses. It has contributed a series of publications
aimed to raise awareness about the problem, examine current trends, challenges,
and shortcomings in asset recovery as well as shed light on promising policy and
legal tools, including those aimed to ensure seizure and confiscation of corrup-
tion proceeds in transnational cases.
Among the tools aimed at facilitating the recovery of assets illicitly moved or
transferred abroad, attention has recently been directed to a legal mechanism
enabling the processing of mutual legal assistance (MLA) requests through the
direct enforcement of foreign confiscation orders. The concept of direct
1
2 | Orders without Borders
enforcement stands in contrast to indirect enforcement, which is predicated on
the need for the requested jurisdiction to issue its own confiscation order as a
prerequisite for executing the foreign request.
Crucially, whereas there is growing recognition of the value of direct enforce-
ment as an international cooperation tool, this legal mechanism is not fully used
or understood despite its advantages in speeding up and streamlining asset
recovery proceedings. Also, countries are often unaware that adopting domestic
direct enforcement mechanisms is not optional, but a requirement for UNCAC
States Parties.
1.2 OBJECTIVES, STRUCTURE, AUDIENCE
The objective of the present study is to offer an in-depth analysis of the notion of
direct enforcement, existing legal approaches, and related challenges, thereby
building on the initial findings of previous publications of the StAR Initiative.
Among these, the manual Barriers to Asset Recovery identified the inability to
recognize and enforce foreign confiscation and restraint orders as one of the
major legal barriers to the recovery of the proceeds of corruption (Stephenson
and others 2011, 76). Also, the Asset Recovery Handbook touched on the issue by
identifying typical conditions necessary to directly enforce a foreign confisca-
tion order in requested jurisdictions (Brun and others 2021). However, apart
from examples drawn from a few countries, these publications were not intended
to provide a comprehensive illustration of how direct enforcement works
worldwide.
This study seeks to fill this gap by doing as follows:
• Examine the meaning and scope of direct enforcement and indirect enforce-
ment models in the international legal framework, notably UNCAC, which
addresses the issue in chapter V of the convention among other possible
channels for asset recovery. Whereas UNCAC is used as the international
reference i
nstrument, its provisions on direct and indirect enforcement are
compared with those found in many other treaty frameworks, including
regional conventions.
• Map the institutional approaches to direct and indirect enforcement in force
in 31 selected jurisdictions. Chapter 3 of this study discusses which of these
jurisdictions rely on direct enforcement and which do not, how they incorpo-
rate treaty requirements into domestic laws, what the competent authorities
are, and what types of procedures are used. Chapter 3 also includes an analy-
sis of jurisdictions that are not able to directly enforce confiscation orders and
asks why this is the case, what level of awareness practitioners have of direct
enforcement models, and whether policy-making bodies have taken any step
to introduce this legal mechanism.
• Understand what specific challenges countries face in implementing a direct
enforcement model. On the basis of extensive contributions by practitioners
from the selected jurisdictions, this study’s chapter 4 provides an overview of
the practical, institutional, and legal obstacles encountered in having stolen
assets confiscated by direct enforcement mechanisms. The inquiry also seeks
to determine the extent to which reported critical qualities are specific to this
particular type of MLA as opposed to common problems associated with the
handling of general MLA or asset recovery requests.
Introduction | 3
• Suggest a series of practical steps and good practices for consideration by
(a) countries exploring the possibility to introduce a direct enforcement
mechanism into their domestic legal frameworks and (b) countries already in
a position to directly enforce foreign confiscation orders, but that are consid-
ering options to streamline processes and maximize results obtainable via
direct enforcement approaches (chapter 5).
In view of its structure and objectives, this study is addressed to a broad range
of law enforcement, justice, and asset recovery practitioners as well as bodies
involved in legislative and regulatory processes, such as the following:
• Officials of the offices of state attorneys general and prosecutors general,
ministries of justice, and prosecutorial and judicial authorities with responsi-
bilities in asset recovery proceedings;
• Central authorities in charge of processing outgoing and incoming MLA
requests, including for asset recovery; and
• Policy makers in charge of preparing and drafting normative instruments in
asset recovery, money laundering, corruption, MLA, and other related fields.
1.3 METHODOLOGY
This study focuses on 31 jurisdictions selected to ensure balanced geographical
distribution among different United Nations Regional Groups and representa-
tion of different legal systems including civil law, common law, and mixed sys-
tems.4 Some of them are major financial centers receiving a significant amount
of MLA requests related to asset recovery. Overall, the selected jurisdictions
appear to constitute a representative sample providing an overview of the situa-
tion worldwide and from which guidance could be drawn. The choice of not
showcasing more countries was a deliberate one owing to practical and time
considerations. Future editions of this study may benefit from geographical
expansion and fresh information on progress obtained in the review of countries
examined under UNCAC’s Implementation Review Mechanism. Such an
updated edition would allow for fine-tuning current findings and a more granu-
lar illustration of the associated challenges.
The initial phase of the study has been conducted through desk research.
Information about domestic legal structures and procedures was extracted from
several official sources, including national legislative databases, country-specific
asset-recovery guides, and publicly available peer-review assessments. Those
assessments were conducted by organizations such as (a) the Financial Action
Task Force (FATF) or FATF-style bodies, (b) the Council of Europe’s Group of
States Against Corruption and (the Committee of Experts on the Evaluation of
Anti-Money Laundering Measures and the Financing of Terrorism, and (c) the
Organisation for Economic Co-operation and Development (OECD) in its review
of the implementation of the OECD Convention on Combating Bribery of
Foreign Public Officials in International Business Transactions. The Mechanism
for the Review of Implementation of UNCAC also featured as an important
source of information. In this context, the bulk of the information was collected
from evaluations conducted during the first review cycle (dealing with criminal-
ization, law enforcement, and international cooperation). In a few cases, country
information was available from this current (second) review cycle, with its
4 | Orders without Borders
specific focus on countries’ implementation of chapter V (Asset Recovery) of
UNCAC in addition to its chapter II (Preventive Measures).
The desk research phase was complemented by information obtained through
a questionnaire (see Appendix B) sent to asset recovery governmental practi-
tioners in the 31 selected jurisdictions.5 Answers to the questionnaire allowed for
a more in-depth understanding of how domestic legal provisions and procedures
work and are implemented in practice. Moreover, the answers provided first-
hand knowledge of practical challenges. In some cases, information received
from the questionnaire had to be clarified or needed additional input. In these
cases, the drafters engaged in direct exchanges with the respondents or other
practitioners from the same country.
The recommendation section of the study is derived from the best available
data as well as responses to questionnaires received from 29 surveyed countries.
Note that the featured recommendations focus on the theme of this study. As
such, and in an effort to avoid duplications, they add to existing bodies of recom-
mendations, notably those contained in manuals published under the aegis of
the StAR Initiative. Readers are encouraged to refer to those manuals for general
guidance on the development of sound legal and institutional frameworks for
asset recovery and associated good practices.
Finally, an advanced draft of this study was submitted for final review to prac-
titioners from the selected jurisdictions. An online Expert Group Meeting
(EGM) that took place June 18, 2020, refined the text and verified the relevance
and accuracy of information processed in the previous phases. Participants to
the EGM included practitioners and experts from Australia, Brazil, Canada,
China, Cyprus, Arab Republic of Egypt, France, India, Indonesia, Italy,
Kazakhstan, Latvia, Lebanon, New Zealand, Nigeria, Russian Federation,
Singapore, South Africa, Spain, Switzerland, and United States.
NOTES
1. See, for example, United Nations Convention against Corruption, “Report of the 10th
Meeting of the Open-ended Intergovernmental Working Group on Asset Recovery Held in
Vienna on 25 and 26 August 2016,” CAC/COSP/WG.2/2016/4, ¶ 17 (September 2016),
www.unodc.org/documents/treaties/UNCAC/ WorkingGroups/workinggroup2
/2016-August-25-26/V1605555e.pdf.
2. See Conference of the States Parties to the United Nations Convention against Corruption,
Resolution 7/1, Strengthening Mutual Legal Assistance for International Cooperation and
Asset Recovery (November 2017), www.unodc.org/unodc/en/corruption/COSP/session7
-resolutions.html.
3. For information about StAR, see https://star.worldbank.org/.
4. These jurisdictions are Australia; Brazil; British Virgin Islands; Canada; China; Cyprus;
Arab Republic of Egypt; France; Germany; Hong Kong SAR, China; India; Indonesia; Italy;
Japan; Kazakhstan; Republic of Korea; Latvia; Lebanon; New Zealand; Nigeria; Panama;
Peru; Russian Federation; Seychelles; Singapore; South Africa; Spain; Switzerland; United
Arab Emirates; United Kingdom; and United States.
5. The questionnaire was responded to by practitioners from 29 countries. Data about coun-
tries that did not respond to the survey has been collected through open sources, including
official government reports available through several international peer-review
mechanisms.
2 The International Legal
Framework on Direct and
Indirect Enforcement
2.1 UN CONVENTION AGAINST CORRUPTION
2.1.1 Overview of UNCAC asset recovery provisions
Whereas various multilateral treaties such as the United Nations Convention
against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988 Drug
Trafficking Convention) and the UN Convention against Transnational
Organized Crime (UNTOC) feature provisions on international cooperation
related to asset recovery, the UN Convention against Corruption (UNCAC)
vastly expands the arsenal of legal tools, options, and channels available to its
States Parties.
The return of proceeds from corruption to their countries of origin is con-
sidered a “fundamental principle.”1 (UNCAC devotes an entire chapter of its
text to asset recovery.2) At the initial stages of the negotiating process, there was
substantial agreement among delegations that “maintaining a separate chapter
on the question of asset recovery had a considerable political significance,
because the subject matter had been identified by the General Assembly as a
key component of the Convention. That political significance could not be
neglected in examining the architecture and contents of the draft convention”
(United Nations 2010, 435).
UNCAC’s chapter V sets the convention apart from all other international
instruments in criminal matters. Its provisions, however, should not be exam-
ined in isolation. Instead, they should be read and interpreted in conjunction
with key provisions found in other chapters. These provisions outline the pre-
requisites for effective asset recovery actions. In particular, note the
following:
• Article 2 (Definition of key terms, for example, property, proceeds of crime,
freezing and seizing, confiscation)
• Article 14 (Measures to prevent money laundering)
• Article 31 (Establishment of domestic legal frameworks for freezing and
confiscation of proceeds from corruption offenses)
• Article 46 (Procedures, authorities, and requirements for mutual legal
assistance, MLA)
5
6 | Orders without Borders
2.1.2 What are the legal avenues for asset recovery?
No legal mechanism is, in abstract, better suited than others to recover stolen
assets moved abroad. Whereas UNCAC sets forth a menu of possible channels,
the decision over which avenue to pursue is eventually a strategic investigative
and prosecutorial choice. The decision is, in turn, influenced by a variety of fac-
tors, including the ability of the requesting or requested jurisdiction to pursue or
enforce conviction-based or non-conviction-based confiscation (NCB) orders,
considerations involving standards of proof in force in the foreign jurisdiction,
the availability of MLA treaties, and so forth.
The legal avenues envisaged by UNCAC to recover assets associated with cor-
ruption offenses are grouped under two categories:
• Measures for the direct recovery of property (article 53)
• Measures for recovery of property through international cooperation in con-
fiscation (articles 54 and 55)
These are illustrated in the next two sections.
2.1.3 Measures for the direct recovery of property (article 53)
These measures can be sought by a country before the civil or criminal courts of
another country—depending on the legal system—to regain ownership of stolen
assets or be awarded compensation or damages. Because this route does not
involve action by the government of the country where the civil proceedings take
place, associated costs are born entirely by the plaintiff. At the same time, the
establishment and pursuit of a civil action may interfere with criminal proceed-
ings initiated in the same country. For this reason, some governments request
that they be kept informed of any privately pursued proceedings taking place in
their territory.
2.1.4 Measures for recovery of property through international
cooperation in confiscation (articles 54 and 55)
Under this category, UNCAC outlines two mechanisms that States Parties need
to have in place to respond to a request for confiscation stemming from another
party. For ease of reference, these two proceedings are designated in this study
as mechanisms for direct and indirect enforcement. Unlike the previously men-
tioned avenues (measures for the direct recovery of property), both direct and
indirect enforcement entail the active involvement of governments’ institutions
in recovering assets in their own territories following an MLA request. Whether
proceeds of crime are recovered by direct or indirect action, they need to be
returned to the requesting jurisdiction on the basis of procedures in force in the
requested jurisdiction and applicable international arrangements.
2.1.4.1 Direct enforcement of foreign confiscation orders
According to article 55(1)(b) of UNCAC, a requested party shall, to the greatest
extent possible within its domestic legal system, “submit to its competent author-
ities, with a view to giving effect to it to the extent requested, an order of confis-
cation issued by a court in the territory of the requesting State Party […] insofar
as it relates to proceeds of crime, property, equipment or other instrumentalities
[…] situated in the territory of the requested State Party.” (Emphasis added.)
The International Legal Framework on Direct and Indirect Enforcement | 7
The requirement set forth in article 55(1)(b) reflects what is commonly
understood as direct enforcement of foreign confiscation orders. Article 54(1)
(a) of UNCAC specifically requires States Parties to introduce domestic
measures as may be necessary to permit its competent authorities to give effect
to an order of confiscation issued by a court of another State Party, to enable the
implementation of article 55(1)(b) in practice.
The term “direct enforcement” used in this study is not employed by UNCAC.
In written exchanges with practitioners from the surveyed jurisdictions, some-
times there was uncertainty about its exact meaning. In this regard, it should be
emphasized that the word “direct” in this study should not be read as a synonym
of “automatic.” It does not imply that the requested jurisdiction will as an inevi-
table result recognize a foreign order. In countries adopting a direct enforcement
model, it is widely accepted that the foreign order will be scrutinized against a
set of conditions including that the foreign order is final or that the person
affected received a fair trial in the requesting country and so forth. The term
“direct” used in this study thus refers to the fact that the competent authorities
in the requested jurisdiction are able to recognize and provide enforcement
power to the foreign order (or reject recognition if the set conditions are not
fulfilled) without investigating and adjudicating again the merits of the case.
Therefore, the term “direct enforcement” in this study is an equivalent of giving
effect to an order of confiscation issued by a court of a requesting state under
article 54(1)(a) of UNCAC. Direct enforcement thus could involve additional
steps including a court process to decide on the recognition and enforcement of
the foreign confiscation order. But these additional steps should be on an expe-
dited and streamlined process compared with the usual procedure as applied in
the domestic confiscation proceedings of the requested state. Direct enforce-
ment is broader than just automatically registering the foreign confiscation
order. Even the registration may be conditioned on the verification of basic con-
ditions that may include due process, rights of defendants, and, in some jurisdic-
tions, dual criminality.
Crucially, under direct enforcement proceedings, requested jurisdictions
need to have provisions and procedures in place to ensure that their authorities
can enforce foreign confiscation orders without reopening their own full domes-
tic asset recovery case and without conducting a new investigation or a new trial
on the merits of the case, subject to a review of the acceptability of the foreign
order (due process, competence, public order, and so forth). A major practical
advantage of excluding the case from relitigation in the requested jurisdiction is
that it shields the case from delaying tactics, avoids duplication of efforts, and
expedites proceedings. It also contributes to limiting confiscation enforcement
cases from requiring too many resources for requested jurisdictions.
The procedure to enforce, or give effect to, a foreign order may be contained
in a dedicated legislative act, in procedures established for the execution of MLA
requests, in procedures for registering foreign orders, or in giving various types
of exequatur or execution of foreign judgments, and so forth. Importantly, this
procedure shall be different from and more straightforward compared with the
standard domestic confiscation procedure.
2.1.4.2 Indirect enforcement of foreign confiscation orders
For parties to trigger direct enforcement proceedings, a basic condition is that a
valid order of confiscation has been issued by the foreign jurisdiction. This is
obviously not possible (a) when the foreign jurisdiction has requested the
8 | Orders without Borders
confiscation of property without having issued a corresponding confiscation
order or (b) where a confiscation order does exist but is not deemed valid or in
any other way recognizable by the requested jurisdiction. In such events, some
jurisdictions may only be able to execute the foreign request by issuing a domes-
tic confiscation order through a full reexamination of the merits of the case. In
this study, this scenario is understood as indirect enforcement. In practice, under
such an approach, evidence submitted by the requesting jurisdiction is used to
support an application for a domestic confiscation order. The requesting juris-
diction is thus expected to provide information satisfying the evidentiary stan-
dards in force in the requested jurisdiction.3
The indirect enforcement scenario is reflected in article 54(1)(b) and article
55(1)(a). According to this latter provision, in particular, a requested party “shall,
to the greatest extent possible within its domestic legal system, submit the
request to its competent authorities for the purpose of obtaining an order of con-
fiscation and, if such order is granted, give effect to it.”
2.1.5 UNCAC requirements on the enforcement of foreign
confiscation orders
Under articles 55(1)(a) and (b) of UNCAC, a State Party that has received a
request from another State Party for confiscation of proceeds of crime, property,
or equipment of other instrumentalities referred to in article 31(1) of UNCAC
situated in its territory shall, to the greatest extent possible within its domestic
legal system, do as follows:
• Submit to its competent authorities, with a view to giving effect to it to the
extent requested, foreign confiscation orders issued by another party (direct
enforcement).
• Submit the request to their competent authorities to obtain an order of con-
fiscation and, if such order is granted, give effect to it (indirect
enforcement).
By demanding that parties introduce legal proceedings to enable both
direct and indirect enforcement actions, UNCAC seeks to ensure that
requested jurisdictions have the legal tools to provide the most effective and
expeditious degree of MLA on the basis of the circumstances and needs of
each case.4
The next few sections highlight other requirements set forth by UNCAC in
this area. For all other issues, UNCAC States Parties have discretion in determin-
ing the procedures and modalities for introducing both direct and indirect
enforcement mechanisms in their own legal systems.
2.1.5.1 Proceeds and instrumentalities
UNCAC States Parties shall ensure that their domestic legal framework dealing
with the enforcement of foreign confiscation orders is broad enough to cover
requests for the confiscation of “proceeds of crime, property, equipment or
other instrumentalities” located in their territory.5
Some of these terms are defined in article 2 of UNCAC, notably, as follows:
• “‘Property’ shall mean assets of every kind, whether corporeal or incorporeal,
moveable or immoveable, tangible or intangible, and legal documents evi-
dencing title to or interest in such assets”6
The International Legal Framework on Direct and Indirect Enforcement | 9
• “‘Proceeds of crime’ shall mean any property derived from or obtained,
directly or indirectly, through the commission of an offence”7
Whereas UNCAC seeks to ensure that requested parties are able to enforce
foreign orders covering property in the broadest sense, an interpretative note to
article 55(1)(b) clarifies that “the term ‘instrumentalities’ should not be inter-
preted in an overly broad manner” (United Nations 2010, 488).
2.1.5.2 Property of a de minimis value
According to article 55(7), “cooperation […] may also be refused or provisional
measures lifted if the requested State Party does not receive sufficient and timely
evidence or if the property is of a de minimis value.” The rationale is that proce-
dures for the enforcement of foreign confiscation orders are often costly and
time consuming and therefore should not be triggered (at least not as a matter of
priority) in cases where the costs associated with the recovery of the assets out-
weigh their value.
On this specific issue, an interpretative note to article 55(7) demands that “the
requested State Party […] consult with the requesting State Party on whether the
property is of de minimis value or on ways and means of respecting any deadline
for the provision of additional evidence.”8
2.1.5.3 Applicability of general MLA provisions
Because the direct and indirect enforcement of foreign confiscation orders is a
type of MLA, article 55 clarifies that the general provisions of MLA contained in
UNCAC article 46 apply once the necessary changes have been made. This
entails, notably, that grounds for refusal, rules on the confidentiality of the
request, identification of channels for transmitting the request, costs relating to
its execution, and so forth, are implicitly applicable to requests in this domain
unless the State Party in question is bound by a specific MLA treaty, in which
case the latter would prevail.9
Recall that under article 46(3), MLA may be specifically requested for,
among other things, “( j) Identifying, freezing and tracing proceeds of crime in
accordance with the provisions of chapter V of this Convention; [and] (k)
The recovery of assets, in accordance with the provisions of chapter V of this
Convention.”
2.1.5.4 Information to be included in MLA requests for direct or
indirect enforcement
Article 46(15) spells out information generally to be included in an MLA
request—whether for the purpose of taking evidence, executing searches, or any
other type of assistance that is not contrary to the domestic law of the requested
party. Accordingly, a request for MLA shall contain the following:
• The identity of the authority making the request
• The subject matter and nature of the investigation, prosecution, or judicial
proceeding to which the request relates and the name and functions of the
authority conducting the investigation, prosecution, or judicial proceeding
• A summary of the relevant facts, except in relation to requests for the purpose
of service of judicial documents
• A description of the assistance sought and details of any particular procedure
that the requesting State Party wishes to be followed
10 | Orders without Borders
• Where possible, the identity, location, and nationality of any person
concerned
• The purpose for which the evidence, information, or action is sought
More specifically, concerning requests for the direct enforcement of foreign
confiscation orders, the following pieces of information shall also be included
under article 55(3)(b):
• Legally admissible copy of an order of confiscation upon which the request is
based issued by the requesting State Party
• Statement of the facts and information as to the extent to which execution of
the order is requested
• Statement specifying the measures taken by the requesting State Party to pro-
vide adequate notification to bona fide third parties and to ensure due
process
• Statement that the confiscation order is final
For requests dealing with indirect enforcement, under article 55(3)(a), the
following information is required:
• Description of the property to be confiscated
• To the extent possible, the location of the property
• When relevant, the estimated value of the property
• Statement of the facts the requesting State Party relied upon that are suffi-
cient to enable the requested party to seek the order under its domestic law
2.1.5.5 UNCAC as a legal basis
Under article 55(6), “if a State Party elects to make the taking of the measures
referred to in paragraphs 1 [enforcement of foreign confiscation orders] and
2 [enforcement of foreign freezing and seizing orders] of this article conditional
on the existence of a relevant treaty, that State Party shall consider this
Convention the necessary and sufficient treaty basis.”
This provision echoes the one set by UNCAC in extradition. According to
article 44(5), “If a State Party that makes extradition conditional on the existence
of a treaty receives a request for extradition from another State Party with which
it has no extradition treaty, it may consider this Convention the legal basis for
extradition in respect of any offence to which this article applies.” (Emphasis
added.)
The major difference between the two articles is that in the case of a request
for the enforcement of foreign freezing, seizing, or confiscation order, requested
states shall consider UNCAC as a valid legal basis, whereas they are only encour-
aged to do so in the case of extradition. In the absence of a treaty, therefore,
UNCAC does provide a legal basis for enforcement of foreign confiscation orders
in case the requested State Party requires a treaty to that effect.
2.1.6 Enforcement of foreign requests for asset
freezing and seizing
The regime envisaged by UNCAC for the enforcement of foreign requests for
provisional measures is different from the one established for confiscation-
related requests. The main point of divergence with UNCAC requirements con-
cerning requests for enforcement of foreign confiscation orders (article 54(1)(a))
The International Legal Framework on Direct and Indirect Enforcement | 11
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 freez-
ing 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) geographi-
cal 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 intro-
duced 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 mecha-
nisms 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
12 | Orders without Borders
• 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 confisca-
tion 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 funda-
mental 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 imple-
ment a regionwide system for the cross-border execution of freezing and con-
fiscation orders.
Under the 2018 Regulation, when a competent authority in one EU mem-
ber 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 freez-
ing 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, freez-
ing or confiscation orders are to be executed without verification of the dou-
ble 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).
The International Legal Framework on Direct and Indirect Enforcement | 13
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 confisca-
tion orders17
• A standard certificate and a standard form containing all relevant informa-
tion on the order, designed to streamline the process, to support the exe-
cuting 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 consulta-
tions 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 mem-
ber 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 pro-
ceeds 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 coun-
try 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
14 | Orders without Borders
In general, treaties covering the same subject matter can support each other
for interpretative purposes, especially when they do not contradict each other
and one instrument contains more detailed provisions on specific topics. For
example, the 2005 Warsaw Convention makes it clear that “the requested
Party shall be bound by the findings as to the facts in so far as they are stated in
a conviction or judicial decision of the requesting Party or in so far as such
conviction or judicial decision is implicitly based on them.”21 Whereas UNCAC
is silent on this point, the Warsaw Convention might be usefully invoked in the
event that an interpretative doubt arises between countries having ratified
both treaties.
2.3 THE ENFORCEMENT OF FOREIGN NCB CONFISCATION
ORDERS IN THE INTERNATIONAL LEGAL FRAMEWORK
Under UNCAC, to provide MLA for asset confiscation purposes, “each State
Party shall […] consider taking such measures as may be necessary to allow con-
fiscation of such property without a criminal conviction in cases in which the
offender cannot be prosecuted by reason of death, flight, or absence or in other
appropriate cases.”22
Under the 2005 Warsaw Convention, “the Parties shall co-operate to the
widest extent possible under their domestic law with those Parties which
request the execution of measures equivalent to confiscation leading to the
deprivation of property, which are not criminal sanctions, in so far as such
measures are ordered by a judicial authority of the requesting Party in relation
to a criminal offence […].”23 An explanatory note to the Warsaw Convention
clarifies that such types of proceedings “include, for instance, the so called
‘in rem proceedings.’”
By defining “confiscation order” as a “final penalty or measure, imposed by a
court following proceedings in relation to a criminal offence, resulting in the final
deprivation of property of a natural or legal person,”24 the EU’s 2018 Regulation
ensures that the principle of mutual recognition also covers proceedings that did
not end up in a criminal conviction. Moreover, the 2018 Regulation specifies that
the ground for nonrecognition or nonexecution of a foreign confiscation order,
consisting in the circumstance that the person in question did not appear in per-
son at the trial in the requesting country, does not apply “where proceedings [in
the requesting country] result in non-conviction-based confiscation orders.”25
2.4 TAKEAWAYS
• Under UNCAC, States Parties shall be able to provide the most effective and
expeditious degree of assistance to other parties based on the circumstances
and needs of each case. A key mechanism envisaged by UNCAC for interna-
tional asset recovery is the enforcement of foreign freezing and seizing and
confiscation orders through MLA channels.
• Domestic legal frameworks covering the enforcement of foreign freezing and
seizing and confiscation orders need to be wide enough to encompass “pro-
ceeds of crime, property, equipment or other instrumentalities” located in
their territory.26
The International Legal Framework on Direct and Indirect Enforcement | 15
• 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 require-
ments 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 avail-
able 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 provi-
sions 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 imple-
ment 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 crim-
inal offense reflecting all their treaty-based commitments. It is important
to avoid a fragmented approach whereby different procedures or author-
ities 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.
16 | Orders without Borders
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 certif-
icate 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).
3 Domestic Legal Approaches to
Direct Enforcement
3.1 OVERVIEW
The majority of the surveyed jurisdictions can rely on basic legal mecha-
nisms to directly enforce foreign confiscation orders. Some countries, how-
ever, (for example, China,1 Indonesia, and Panama) have adopted no legal
framework for direct enforcement. For example, the concept has not been
debated during Indonesia’s recent elaboration of a draft law dealing with
non-conviction-based (NCB) confiscation. A practitioner from this country
who was interviewed, however, thought that its introduction into domestic
law would help cooperation efforts and, crucially, provide Indonesia with
increased leverage to ensure that foreign countries directly enforce an
Indonesian confiscation order.
Other countries do have some basic legal framework but lack the necessary
implementing legislation. Under article 20 of the Egyptian Anti-Money
Laundering law, for example, the “competent Egyptian judicial entities
may order the enforcement of final criminal rulings issued by competent
foreign judicial authorities, concerning the confiscation of the funds resulting
from money laundering and terrorism financing crimes or proceeds thereof,
ccordance with the rules and procedures stipulated in bilateral or
in a
multilateral treaties to which Egypt is a party.”2 However, confronted with a
foreign request and in the absence of more detailed legislation, Egyptian
authorities have no choice but to launch a domestic money-laundering
investigation where the facts are examined and a domestic order of
confiscation is ordered.
Jurisdictions belonging to both common law and civil law legal systems
employ direct enforcement mechanisms. Common law countries, however, tend
to provide more detailed provisions on procedural matters such as document
authentication, third-party notifications, and criteria for calculating property
value.
17
18 | Orders without Borders
3.1.1 Choice between direct and indirect enforcement channels
Resorting to direct enforcement modalities for implementing foreign orders may
in some cases be an “obliged route” for technical reasons. In the United States,
direct enforcement of foreign orders may be the only way to provisionally
restrain assets that are not criminal proceeds (that is, value confiscation orders
or substitute assets up to the value of criminally derived profits).3 Similarly, in
Canada the ability to confiscate assets on behalf of a foreign country as part of
foreign criminal proceedings is typically not available by a domestic confiscation
order. Specifically, obtaining such an order under Canadian criminal legislation
depends on the existence of a related Canadian criminal investigation to obtain
a domestic order. Whereas there will be some situations where obtaining a
domestic order is possible, in the vast majority of cases this would not be possible
because Canadian law enforcement and prosecuting authorities lack
jurisdiction.
As to foreign freezing orders, Cyprus would usually pursue the direct enforce-
ment route unless the recognition of such orders was not possible because, for
instance, the conditions set out in the legislation for registering the orders could
not be met.
On one hand, some jurisdictions4 indicate a preference for direct enforce-
ment as the most cost-effective model. On the other hand, indirect enforcement
is favored when, in the execution of the request, additional assets are discovered
that are not accounted for in the foreign order. South African officials would first
ask the requesting country to amend the order, failing which they would con-
sider taking indirect action. In Switzerland, indirect enforcement is used in
practice to enforce foreign orders pertaining to compensation claims with coun-
tries that have not ratified the Council of Europe Convention on Money
Laundering.
Overall, the simultaneous availability of both models (direct and indirect) is
seen as injecting an important element of flexibility for determining the best
course of action.
3.1.2 Mutual legal assistance (MLA) statutes, criminal procedure
codes, and asset recovery legislation
Most jurisdictions regulate direct enforcement through MLA or asset recovery
statutes. Others include special provisions in the sections of their criminal pro-
cedure codes dealing with international judicial cooperation.5
The structure, depth, and level of detail of domestic laws dealing with direct
enforcement vary. Some legislative acts go to a great length to cover all issues
that can potentially emerge, ranging from the effects of foreign confiscation
orders to the entitlements of affected people.6 In South Africa, for example, the
1996 International Cooperation in Criminal Matters Act contains the main legal
framework on the registration of foreign restraint and confiscation orders. It is
accompanied by a set of implementing regulations setting forth detailed criteria
for notifying interested parties as well as the period and the manner in which a
person may apply to the competent authorities to set aside the registration of
foreign restraint and confiscation orders. In Singapore, the MLA Act is comple-
mented with a Third Schedule that applies to matters in relation to which the
attorney general has authorized the enforcement of foreign confiscation orders.
These matters range from the criteria for calculating interest on the amounts to
Domestic Legal Approaches to Direct Enforcement | 19
be recovered under the foreign order to the appointment of a public trustee or
other persons as receivers to deal with realizable property.
In other cases, direct enforcement issues are the object of only a few provi-
sions, thus leaving room for interpretation.7 In some statutes, the general provi-
sions of criminal codes and criminal procedure codes (for example, dealing with
the rights of third parties to challenge the act with which the foreign order has
been recognized) are declared applicable once the necessary changes have been
made. Also, as a type of MLA, the direct enforcement of foreign confiscation
orders is subject to the conditions set forth by requested countries for executing
MLA requests in general (for example, dual criminality, requirements for reci-
procity, general grounds for refusal, and so forth).
3.1.3 Direct enforcement by crime-specific statutes (money
laundering, organized crime)
In some jurisdictions, procedures for direct enforcement are spelled out in leg-
islation dealing with specific crime categories. Japan, for example, handles the
control of crime proceeds in the same legislative act devoted to the suppression
of organized crime. The Republic of Korea’s detailed procedure on the direct
enforcement of foreign confiscation orders is contained in its legislative act on
the prevention of illegal trafficking in narcotics. Such a procedure is then made
applicable—once the necessary changes have been made—to foreign orders
related to corruption and other crimes.
Case Study 3.1: Nigeria’s path toward comprehensive direct enforcement
legislation
Nigeria offers an interesting example of a legal system leading to the recognition or review and confirmation
where direct enforcement action is potentially avail- and the enforcement of an order for the forfeiture of
able only in limited circumstances and via different the proceeds of criminal activities made by a court or
statutes. other authority in the requesting country.” Under sec-
One relevant piece of legislation is the Foreign tion 22(3), “[t]he law of the requested country shall
Judgment (Reciprocal Enforcement) Act, whose apply to determine the circumstances and manner in
chapter 175 permits the registration and enforcement which an order may be recognized, confirmed or
of judgments obtained in other jurisdictions. Under enforced.” However, it appears that no implementing
this act, enforcing judgments taken in foreign criminal laws have yet been adopted for the competent author-
proceedings is only allowed in respect of payment of ities to carry out direct enforcement action under the
compensation or damages to an injured party. This MLA Act.
leaves the possibility that, at least in theory, the act be In its recent publicly available self-assessment
used for the direct enforcement of foreign non- report (31.08.2016) related to the Second Phase of the
conviction confiscation-based orders taken in civil Mechanism for the Review of Implementation of the
proceedings. The state practice in support of this United Nations Convention against Corruption
hypothesis, however, could not be determined. (UNCAC), Nigeria has stated that an amendment to
The other relevant statute is the Mutual Assistance the MLA Act is currently pending within its National
in Criminal Matters within the Commonwealth Assembly. The amendment will seek, among others, to
(Enactment and Enforcement) Act (Mutual Legal make the MLA Act applicable generally to all UNCAC
Assistance (MLA) Act), whose section 22(1) states that States Parties as its scope of application is currently
“[a] request under this Part of the Act may seek assis- limited to 53 Commonwealth member countries.
tance in invoking procedures in the requested country
20 | Orders without Borders
Case Study 3.2: Use of crime-specific (money-laundering) statutes:
the case of Cyprus
In Cyprus, although direct enforcement procedures Intelligence Unit) for execution. The lawyers of
are set forth in anti-money-laundering legislation, MOKAS prepare the relevant application for the court
these procedures relate to proceeds in general. In for the purpose of obtaining a court order for the reg-
turn, proceeds are defined as any economic advantage istration and enforcement of the foreign confiscation
derived from “illegal activities,” which are all predi- order.
cate offenses. Thus, the anti-money-laundering stat- Section 38 of the AML/CFT Law sets out the con-
ute enables the authorities to directly recognize ditions that must be satisfied for the court to register a
foreign confiscation orders whether they include or do foreign order. When a foreign order is registered by
not include money-laundering offenses. the court, it becomes enforceable as if the order had
In particular, according to The Prevention and been made by a competent domestic court under the
Suppression of Money Laundering and Terrorist AML/CFT Law.
Financing Activities Laws of 2007–2018 (Anti-Money Section 39 calls for the procedure to be followed
Laundering and Combatting Financial Terrorism after the court registers the foreign order. Specifically,
(AML/CFT) Law), mutual legal assistance requests in when the confiscation order is registered, it is enforced
this area are submitted to the Cyprus Ministry of by MOKAS under the following conditions: (a) if
Justice and Public Order Central. That ministry acts as within six weeks from when the persons affected by
the central authority on the basis of one of the interna- the order received notification of the registration
tional treaties mentioned in section 37 of the AML/ order, the persons took no action to cancel or to set
CFT Law, including the United Nations Convention aside the registration order and (b) if it is not possible
against Corruption. The central authority transmits to notify, or if the accused or the third person in the
the requests to the Unit for Combating Money possession of the proceeds cannot be located, despite
Laundering (MOKAS, the Cypriot Financial making reasonable efforts.
In the Arab Republic of Egypt,8 India,9 and United Arab Emirates, the
legal framework for direct enforcement purposes is contained in
anti-money-laundering statutes. In United Arab Emirates, in particular, the
anti-money-laundering law provides that “any court injunction or court deci-
sion providing for the confiscation of funds, proceeds or instrumentalities
relating to money laundering, terrorist financing or financing of illegal orga-
nizations may be recognized if issued by a court or judicial authority of
another state with which the State has entered into a ratified Convention.”10
The choice to provide direct enforcement exclusively in anti-money-
laundering statutes may raise problems over whether such procedures can be
applied by analogy to recognize foreign orders that have been made in criminal
proceedings other than those for money-laundering offenses (for example, when
foreign proceedings in the requesting jurisdiction relate to corruption offenses
and the request for asset recovery does not stem from a money-laundering
conviction).
3.1.4 Reliance on general mechanisms for the recognition of
foreign judgments
Sometimes the direct enforcement of foreign confiscation orders is made possi-
ble through the same provisions broadly applicable to recognizing foreign
Domestic Legal Approaches to Direct Enforcement | 21
judgments in criminal matters.11 In Latvia, for example, the execution of a pun-
ishment imposed in a foreign state “shall be applied to the assessment of a
request of a foreign State regarding the execution of a confiscation of property, if
it has not been specified otherwise […].”12
Similarly, for enforcing foreign confiscation orders, Germany uses the proce-
dure generally applicable to the “enforcement of a penalty or any other sanction
imposed with final and binding force in a foreign country.”13 This action is known
as exequatur procedure. In this procedure, a competent court examines whether
the foreign order is admissible as well. The court needs to find a comparable
German order to the foreign order. Only then can the court declare the foreign
judgment to be enforceable in Germany.
In Brazil, an exequatur procedure is used to enforce foreign court
decisions in general, thus also confiscation orders. The Superior Court of
Justice examines whether the execution of such orders is admissible according
to the country’s constitution.14
In Lebanon, the president of the Civil Court of Appeal gives foreign orders
(including confiscation) enforceable power on the basis of the Code of Civil
Procedure. The use of civil procedures appears justified because the recovery of
assets acquired through the commission of corruption acts is not considered as
a criminal sanction, but rather a form of compensation.
However, in various countries, general exequatur procedures cannot be used
to enforce foreign confiscation orders; such procedures are explicitly designed
to give effect to foreign civil or arbitral judgments. In Egypt, for example, the
possibility to directly enforce foreign judgments through the Civil Procedure
Code is limited to compensation orders benefiting the victim of a crime.15 This is
the case in Panama, where the application of article 1419 of the Judicial Code
(“Judgments of foreign courts”) is limited to cases where the “judgment has been
handed down following the exercise of a personal right.” 16 In Nigeria, the
enforcement of orders made in foreign criminal proceedings is limited to those
related to the payment of compensation or damages to an injured party.17
Case Study 3.3: Use of general mechanisms for the recognition of foreign
criminal judgments: the case of Italy
Italy’s ability to provide international cooperation in those stemming from NCB proceedings) are also cov-
asset recovery measures in conviction and non-con- ered, article 731(1-bis) states the applicability of those
viction-based (NCB) proceedings has been identified provisions to “cases of execution of confiscation and
as a good practice in the country report related to the when the relevant measure has been adopted by the
second cycle of the Mechanism for the Review of foreign judicial authority by means of a decision other
Implementation of the United Nations Convention than a judgment of conviction.” (See Appendix C for
against Corruption (UNCAC). In particular, for the more information.)
direct enforcement of foreign confiscation orders, After receiving a request for executing a confisca-
Italy relies on provisions contained in the Code of tion order issued by foreign judicial authorities, the
Criminal Procedure generally aimed at the recogni- Minister of Justice, acting as the central authority in
tion of foreign criminal judgments. To dissipate any the field of judicial cooperation, forwards the request to
doubt that foreign confiscation orders (including the public prosecutor attached to the competent Court
22 | Orders without Borders
of Appeal (Procuratore Generale della Repubblica). for recognition and enforcement in the following
The Minister of Justice does so in cases where there is cases:
an international instrument (bilateral or multilateral
• If the judgment or confiscation order is not final
treaties or agreements) between Italy and the request-
according to the law of the requesting jurisdiction
ing state that provides for this type of mutual legal
• If the judgment or confiscation order includes
assistance (MLA). In this regard, UNCAC is considered
provisions that are contrary to the fundamental
as “the necessary and sufficient treaty basis” to carry
principles of the Italian legal system
out the procedure of direct recognition and enforce-
• If the judgment or confiscation order has been
ment of confiscation orders in compliance with article
issued by a judge who is not independent and
55(6) of UNCAC. Also, Italy is party to a number of mul-
impartial
tilateral and bilateral treaties in the field of MLA that
• If the defendant or interested party was not sum-
Italian courts regard as sufficient basis for directly rec-
moned to appear before the foreign court or was
ognizing and enforcing foreign confiscation orders.
not permitted to defend himself or herself
Once the request for recognition and enforcement
• If there are grounded reasons to believe that the
has been forwarded to the prosecutor attached to the
defendant or interested person was discriminated
Court of Appeal, the prosecutor lodges a written
against for reasons related to his or her national-
request for recognition and enforcement accompa-
ity, race, religion, sex, language, political opinions
nied by a copy of the confiscation order and its trans-
or other personal or social conditions
lation into Italian and any other supporting documents
• If the fact for which the judgment or confiscation
transmitted by the requesting jurisdiction.
order was rendered is not provided for by Italian
According to article 734 of the Code of Criminal
law as a criminal offense
Procedure, the Court of Appeal shall decide on the
• If a final judgment was rendered by Italian judi-
request for recognition without delay and not later
cial authorities against the same person for the
than 90 days from the receipt of the prosecutor’s
same criminal offense
request. The decision of the Court of Appeal can be
• If in Italy a criminal proceeding is pending
challenged by the prosecutor, the interested person,
against the same person for the same criminal
and his or her defense counsel before the Court of
offense
Cassation for infringement of the law. The Court of
Cassation shall decide within 60 days from the receipt The procedure outlined here is not applicable in
of the appeal. cases where the requesting jurisdiction is a European
As to the requirements for recognition and enforce- Union member state. In such cases, the EU regime on
ment, according to article 733 of the Code of Criminal the mutual recognition of freezing and confiscation
Procedure, the Court of Appeal shall reject the request orders applies (section 2.2.2.2 of this study).
Whether the Nigerian legislation is applicable to recognizing and enforcing for-
eign confiscation orders taken in civil proceedings remains unconfirmed.
3.1.5 Direct enforcement through the EU legal framework
As highlighted in section 2.2.2.2 of this study, once the new procedure set forth
in the EU 2018 Regulation of the Mutual Recognition of Freezing and
Confiscation Orders comes into force, EU Member States will recognize and
enforce foreign orders based on three separate procedural tracks: (a) under the
old EU procedure for cases opened before the entry into force of the 2018
Regulation and in relation to Denmark and Ireland; (b) under the new
Domestic Legal Approaches to Direct Enforcement | 23
procedure for cases opened after the entry into force of the 2018 Regulation
(except in relation to Denmark and Ireland); and (c) under separate procedures,
applicable to requests from non-EU countries.
3.2 AUTHORITIES INVOLVED IN DIRECT ENFORCEMENT
Typically, the process leading to the direct enforcement of foreign confiscation
orders involves three main entities:
• The requested jurisdiction’s central authority for MLA in charge of receiving
and processing the foreign request18
• A prosecutorial or other law enforcement authority19 acting on behalf of the
requesting jurisdiction and mandated to file an application for a court order
• A judicial authority in charge of determining whether the foreign order shall
be registered and recognized and enforced
Domestic legislation varies in prerogatives assigned to each of those bodies,
including the extent of the assessment that each carries out to verify the
foreign request’s compliance with the applicable formal and substantive
requirements.
In a number of cases, the central authority performs a summary evaluation.
In Latvia, for example, the Ministry of Justice is tasked with verifying that the
necessary documentation has been received before sending it to the competent
district court. The latter is thus in charge of examining the request in light of
all the applicable conditions.20 In New Zealand, the bulk of the formal and sub-
stantive evaluation is carried out by the attorney general acting as the central
authority, with the role of the High Court limited to making the order for the
registration of the foreign order upon being satisfied that it is in force in the
foreign country.21 In Australia, the competent court restricts itself to register-
ing the foreign order unless it is satisfied that doing so would be contrary to the
interests of justice.22
Case Study 3.4: Authorities involved in direct enforcement in Canada
In Canada, the Minister of Justice is responsible for General of Canada, or an attorney general of a province,
implementing the Mutual Legal Assistance in to make arrangements for the enforcement of the order.
Criminal Matters Act. The minister’s authority is In practice, as a matter of operational policy, all such
exercised by delegates in the form of Counsel at the requests are referred to the Attorney General of Canada
International Assistance Group of the Department for enforcement to ensure consistency of practice.
of Justice Canada, Canada’s central authority The Attorney General of Canada then files a copy
responsible for international cooperation in crimi- of the order with the superior court of criminal juris-
nal matters. diction of the province in which all or part of the
The process is triggered when a written request is property that is the subject of the order is believed to
presented to the minister by a state or entity for the be located. On being filed, the order shall be entered
enforcement of an order of forfeiture of property situ- as a judgment of that court and may be executed any-
ated in Canada issued by a criminal court. On receipt of where in Canada. No separate domestic court order is
the request, the minister may authorize the Attorney required.
24 | Orders without Borders
In several cases, the judicial authority in charge of recognizing (or rejecting
an application to recognize) foreign confiscation orders is the country’s superior
jurisdiction (for example, the High Court in New Zealand and Singapore, the
Supreme Court in the Seychelles). Some other jurisdictions do not vest this
power in a single authority. Instead, they set the criteria for identifying the com-
petent court such as (a) the place of residence of the person in relation to whom
the decision on confiscation was made or (b) the place in which the property
subject to confiscation is located.23 In Lebanon, the authority to provide enforce-
able power to foreign confiscation orders is vested with the president of the Civil
Court of Appeal.
3.3 SCOPE OF DIRECT ENFORCEMENT ACTION
3.3.1 Property of corresponding value
When national laws provide for the confiscation of property of corresponding
value in domestic cases, this possibility normally extends to the direct enforce-
ment of foreign confiscation orders.
Case Study 3.5: Value confiscation and recognition of foreign confiscation
orders: Recent Canadian and UK jurisprudence
Canada in lieu of the proceeds of crime or offense-related
The decision of the Ontario Court of Appeal in Canada property. Rather, a fine can be imposed in the amount
(Attorney General) v. Georgiou in 2018 reflects a suc- of the restraint or forfeiture.
cess story of Canada directly enforcing a foreign order The court in Georgiou reached this conclusion for
for asset freezing. In Georgiou, the court upheld under three reasons. First, as domestic legislation enacted to
the Mutual Legal Assistance in Criminal Matters Act implement Canada’s international obligations,
(MLACMA) the direct enforcement in Canada of a MLACMA should be interpreted broadly and purpo-
restraint order made as part of US criminal proceed- sively with the aim of fulfilling those obligations.
ings directed at a bank account in Canada. The court Thus, where a court is faced with two possible inter-
held that Canada has the ability under MLACMA to pretations of a statute implementing Canada’s inter-
enforce foreign orders for restraint of proceeds of national obligations, the interpretation that allows
crime against property of equivalent value or substi- Canada to fulfill those obligations will be preferred.
tute assets as permitted under foreign law even though Second, in transnational law, due regard must be paid
there is no corresponding ability under Canadian to differences in foreign legal concepts. The phrase
criminal law to enforce domestic restraint orders “proceeds of crime” should be interpreted in a manner
against property of equivalent value or substitute that respects differences in legal systems. Third,
assets. In Canada, if a restraint or forfeiture order can- imposing the limits of the Canadian criminal code
not be realized against proceeds of crime or offense- definition of foreign orders would undermine Canada’s
related property, there is no ability to restrain or ability to cooperate with other states and prevent the
forfeit substitute assets or property of equivalent value government from honoring its treaty obligations.
Source: Canada (Attorney General) v. Georgiou, 2018 ONCA 320, www.canlii.org/en/on/onca/doc/2018/2018onca320/2018onca320
.html?resultIndex=3).
Domestic Legal Approaches to Direct Enforcement | 25
United Kingdom (Protocol No. 36) Regulations 2014 (the Regulations)
In R v. Moss [2019] EWCA Crim 501, the court held for the enforcement of the confiscation order, submit-
that confiscation orders could extend to property that ting that a certificate could only be issued in respect
did not directly represent the proceeds of crime where of property shown to represent the proceeds of crime.
the defendant had benefited from general criminal The court dismissed the appeal. The recoverable
conduct. The Criminal Justice and Data Protection amount could extend to the value of assets that might
(Protocol No. 36) Regulations 2014 were to be read have nothing to do with crime; the general scheme of
purposively so as to give effect to Framework Decision the confiscation process operated in personam.
2006/783 on the application of the principle of mutual However, the scheme had a wider, European context
recognition to confiscation orders. derived from Framework Decision 2006/783, which
In 2005, the appellant pleaded guilty to a signifi- was implemented by the Regulations and which
cant number of drug offenses. The judge found that emphasized the principle of mutual recognition as
he had a criminal lifestyle and that the assumptions in the cornerstone of judicial cooperation with the
section 10 of the Proceeds of Crime Act 2002 (POCA) European Union. The Regulations were to be read
were to be applied. (Such assumptions include, for purposively so as to give effect to the Framework
example, that any property held by or transferred to Decision.
the defendant at any time after the relevant day was It was obvious from the wording and purpose of
obtained by him as a result of his general criminal the Framework Decision that the whole scheme was
conduct.) The recoverable amount was assessed as designed to extend to both value confiscation and
£1,433,753 and a confiscation order was made in that property confiscation systems. The available amount
sum. Among the assets listed in the order was a prop- under POCA could include property that might have
erty in Spain, valued at £350,000. In 2018, the prose- no taint of criminality but where there was a link to
cution obtained a certificate to enforce the the benefit obtained by the defendant through gen-
confiscation order over the appellant’s Spanish eral or particular criminal conduct. A confiscation
property. The matter proceeded on the basis that it order for the recoverable amount was not to exceed
was not to be regarded as derived from criminality, the amount of the benefit. Accordingly, the
as there was no evidence as to the date or circum- Framework Decision respected value-based
stances of the appellant’s purchase of that property. schemes. Because the Regulations gave effect to the
The appellant appealed against a certificate issued Framework Decision, they were to be interpreted
under the Criminal Justice and Data Protection accordingly.
Source: 6KBW College Hill, Weekly Digest, April 1, 2019, https://blog.6kbw.com/posts/weekly-digest-1-april-2019.
3.3.2 Non-conviction-based (NCB) foreign orders
Most of the surveyed jurisdictions can directly enforce foreign confiscation
orders rendered in NCB judicial proceedings.24 Among those jurisdictions, two
main legislative drafting approaches are used.
The first approach is to make the legal framework dealing with direct enforce-
ment explicitly applicable to both conviction-based and NCB foreign orders.25
Italian legislation on the recognition of foreign criminal judgments, for example,
clarifies its applicability to cases where “the relevant measure has been adopted
by the foreign judicial authority by means of a decision other than a judgment of
conviction.” 26 In Cyprus, the foreign orders that can be registered and enforced
include “a confiscation order without conviction, issued by a court within the
26 | Orders without Borders
framework of the procedure relating to a criminal offence […] Provided that, for
the purpose of the present paragraph, ‘confiscation order without conviction’
includes an order without conviction […] from a court of a foreign country which
leads to the deprivation of property and does not constitute a criminal sanction,
to the extent that it is ordered by the court of a foreign country in relation to a
criminal offence, provided it has been proven that the property relating to the
order constitutes proceeds.”27
Under the second approach, the direct enforceability of NCB foreign orders
is inferred in the absence of any indication to the contrary.28 In Singapore, for
example, a “foreign confiscation order” is defined broadly as “an order made
by a court in a foreign country,” thus encompassing both in rem and
conviction-based foreign orders.29 Similarly, Republic of Korea’s legal frame-
work on the direct enforcement of foreign confiscation orders refers generally
to a “final and conclusive judgment” rendered by a foreign court.30 Peruvian
legislation broadly covers “confiscation orders, expiration of ownership
(extinción de dominio) or similar legal orders made by foreign courts.”31
Case Study 3.6: Recognition of non-conviction-based (NCB) foreign orders
in France and Canada
France envisage NCB confiscation. Based on the previously
Whereas France’s domestic legal system does not con- mentioned jurisprudence, it is possible to have a sei-
template non-conviction-based confiscation, it has zure carried out by an investigating judge or a confis-
nonetheless been able to recognize and enforce for- cation by a criminal court (tribunal correctionnel) on
eign NCB orders. A watershed judgment was a deci- the basis of a request for seizure or confiscation
sion by the French Court of Cassation in 2003, which issued by a foreign judicial authority in an NCB
allowed the direct execution of an Italian confiscation procedure.
order issued as a preventive measure. The Court of
Cassation relied on the argument that neither French Canada
law nor the applicable international treaties binding The mutual legal assistance channel, which supposes
the two countries required that the respective confis- that foreign requests be addressed to the Minister of
cation systems be identical; it required that the confis- Justice, cannot be used to request the recognition and
cation order in the requesting state be final and enforcement of an NCB forfeiture order. This does not
enforceable, that the confiscated asset would also be mean, however, that assistance cannot be granted in
susceptible to confiscation in analogous circum- the recognition of NCB orders. Because of Canada’s
stances under French law, and that its execution did constitutional division of power, such requests fall
not endanger public order (Affaire Crisafulli, Cour de within the jurisdiction of the country’s provinces. As
Cassation, 2003, Arrêt n° 5848 du 13 novembre 2003). most of the provinces have adopted legislation on a
This case law, which was confirmed by a judgment civil confiscation regime, requesting states intent on
of the Civil Chamber of the Court of Cassation on recovering assets through NCB orders need to hire
June 4, 2009, opens up interesting prospects for private counsel to act on their behalf in the province
cooperation between France and the countries that where the assets are located.
Domestic Legal Approaches to Direct Enforcement | 27
Case Study 3.7: Hong Kong SAR, China—direct enforcement of non-conviction-
based (NCB) foreign confiscation orders
Hong Kong SAR, China, may directly enforce foreign i. payments or other rewards received in connec-
NCB orders as these fall within the notion of “external tion with an external serious offense or their
confiscation order” as defined in section 2 of the value;
Mutual Legal Assistance in Criminal Matters ii. property derived or realized, directly or indi-
Ordinance, chapter 525, Laws of Hong Kong SAR, rectly, from payments or other rewards received
China (MLAO). An order may be made for confiscat- in connection with an external serious offense or
ing or forfeiting property derived directly or indirectly the value of such property; or
from the commission of a crime, the instrument used iii. property used or intended to be used in connec-
or intended to be used in the commission of a crime, or tion with an external serious offense or the value
the corresponding value of the property. Such an order of such property; or
may be made against a person or property in both civil
and criminal proceedings. (b) depriving a person of a pecuniary advantage
Section 2 of the MLAO defines “external confisca- obtained in connection with an external serious
tion order” to mean an order, made under the law of a offense, whether the proceedings that gave rise to that
place outside Hong Kong SAR, China, for the purpose order are criminal or civil in nature and whether those
of the following: proceedings are in the form of proceedings against a
person or property.
(a) recovering (including forfeiting and confiscating)
3.4 SCOPE OF THE EXAMINATION BY REQUESTED
JURISDICTIONS
A major advantage of direct enforcement mechanisms compared with indirect
ones is to bar the possibility to relitigate the case on its merits before the author-
ities of the requested jurisdiction. This entails, crucially, that the defendant can-
not argue before the courts of the requested jurisdiction that the judges in the
requesting state did not give proper consideration to the evidence that was
brought for their consideration.
For example, the courts of the requesting jurisdiction may have found a
person guilty of giving a US$100,000 bribe to a public official. As a consequence,
property equal to this exact amount was confiscated. In proceedings for direct
enforcement brought before the authorities of the requested jurisdiction,
the public official cannot argue that he had been bribed for a lesser amount. The
authorities of the requested jurisdiction would be bound by the findings of the
authorities of the requesting one. This implies, notably, that the court of the
requested jurisdiction would not be able to examine new evidence in respect to
facts already ascertained by the requesting state.32
Among the jurisdictions that are able to directly enforce foreign confiscation
orders, some do not make this rule explicit in their legal frameworks. This may
be because its application is considered to be implicit in judicial practice. In
other cases, expressing it may simply appear to be superfluous as the claims that
28 | Orders without Borders
can be made in direct enforcement proceedings are exhaustively listed in domes-
tic legislation. In the United States, for example, other than claims alleging lack
of jurisdiction by the foreign court, absence of substantive or procedural due
process, or that the restraining order or judgment was obtained by fraud or, in
the case of final confiscation orders, is not final and non-appealable, any other
arguments would fall outside the scope of 28 U.S.C. § 2467 and thus would have
to be rejected.
However, several jurisdictions do articulate the point in an explicit manner—
albeit using different formulations—which suggests that the issue may not
always be self-evident to practitioners. For example, Cyprus’ courts in charge of
determining if a foreign order shall be registered, “shall be bound by the find-
ings as to the facts in so far as they are stated in the conviction or decision of a
court of the foreign country or in so far as such conviction or judicial decision is
implicitly based on them.”33 Using similar language, Latvia’s Criminal Procedure
Law provides that “the factual circumstances established in a court adjudica-
tion of a foreign State and the guilt of a person shall be binding to a court of
Latvia.”34 Under Japan’s legislation, “the court may not review whether the
finally-binding adjudication concerned is justifiable or not.”35 In Peru, those
who wish to object to the request for the enforcement of a foreign confiscation
order “can only provide or request the evidence that is pertinent and conductive
in relation to the fulfillment of the requirements for the execution of a foreign
order in Peru.”36
In the EU mutual recognition legal framework (see section 2.2.2.2 of this
study), the prohibition to reexamine the case on its merits is inherent in the
mutual recognition principle itself. In this regard, both the 2003 and the 2006
framework decisions37 provide that, once transmitted in accordance with the
specified procedure, freezing or confiscation orders shall be recognized in the
executing state without any further formality being required and shall be imme-
diately executed (unless one of the specifically listed grounds for nonrecognition
or nonexecution applies). The 2018/1805 Regulation,38 whose application will be
mandatory from December 19, 2020, is predicated on the exact same principle.
As highlighted in section 2.1.4.1 of this study, direct enforcement should not
be confused with automatic enforcement. Under all direct enforcement models,
with the exception of the EU mutual recognition legal framework, the compe-
tent authorities in requested jurisdictions are in a position to request supple-
mentary information needed to determine the fulfilment of the conditions set
in domestic laws for the direct enforcement of foreign confiscation orders (for
example, that the order is final and that the concerned person had the opportu-
nity to defend himself or herself ). In the Russian Federation, for example, if the
court has any doubts about the incompleteness or absence of required informa-
tion, the judge may request in the prescribed manner additional clarifications,
additional information, and materials from the competent authority of the for-
eign state, as well as from other persons participating in the consideration of the
request.39
Likewise, short of requesting a reexamination of the case on its merits,
the person subject to the order and other interested parties is normally given
the chance to claim that the conditions for the registration of the foreign order
have not been fulfilled.
Domestic Legal Approaches to Direct Enforcement | 29
Case Study 3.8: UK jurisprudence on limiting the scope of examination for
foreign confiscation orders
In A v. DPP [2017] 1 W.L.R. 713; [2017] 1 Cr. App. R. 6, substantive reason for making an overseas restraint
an English Court of Appeal ruled that a challenge to order may be made only in the courts of the issuing
the substantive reasons for the making of an overseas state. The courts of the executing state shall not them-
restraint order may be made only in the courts of the selves consider such a challenge.
issuing state. The English court also did not accept the appli-
The applicant argued that an English judge of first cant’s argument that substantive reasons did not
instance did not correctly apply the 2014 Regulations, extend to a consideration of the fundamental rights
which transposed into domestic law European Union of an affected citizen. The fact that the ne bis in
(EU) Council Framework Decision 2003/577/JHA on idem principle had already been considered by the
the execution in the EU of orders freezing property or competent French courts (and, in this specific case,
evidence. considered not to have been violated) was necessar-
The case involved a French criminal investigation ily to be regarded as a substantive reason for making
that began in 2006, alleging that A, a French citizen, and continuing an overseas order by the issuing
had committed money laundering, aggrieved fraud, state.
and other offenses involving the sale of real estate in According to the court, following the applicant’s
southern France. faulty reasoning would have led to a situation where,
In 2006, a criminal investigation against A was also had the French authorities sought to have the order
opened in Switzerland, but was abandoned because of recognized not only in England but also in, say,
lack of conclusive information, which, under Swiss Belgium, Germany, Italy, and Spain, the same chal-
law, equals to a formal acquittal. (However, since lenge could have been substantively brought in each of
dropping the charge is made in a summary procedure, these jurisdictions, with the potential for different
the criminal procedure may be reopened if new facts outcomes in each of them. This possible outcome was
are discovered.) The French investigation, however, considered unacceptable in a “scheme designed to be
continued and led to a French court making a operated speedily and on the basis of mutual recogni-
restrained order relative to assets held by A with a tion and of confidence on the legality of decisions of
London-based financial institution. Application was fellow member States.”
then made for that order to be registered in England Moreover, if the courts of the executing state were
under the 2014 Regulations. The order was able to consider the substantive reasons already eval-
registered. uated by the issuing state, the restraint order would
The main argument raised by A’s defense lawyers potentially continue to bind A in personam (against a
was that, because the facts of the case had already particular person) in France, but would cease to bind
been the object of a judicial decision by the Swiss the assets of A in rem in England.
authorities, the French proceedings had violated the The English court concluded in the sense that “the
principle of ne bis in idem (not twice in the same circumstances in which registration may be refused or
thing). Hence, the French restraint order should not challenged in an executing State (for good practical
continue to be registered in England. reasons of making the scheme efficacious) are closely
This argument was rejected by the English court. circumscribed [....] If a wider challenge is to be made
According to it, the conclusive objection to the appli- as to the substantive reasons for making the restraint
cant’s argument was found in the relevant EU legal order, then that challenge is to be made, and made
instrument as domesticated by the 2014 Regulations. only, in the courts of the issuing State” as the appropri-
Under Regulation 10.6, in particular, a challenge to the ate forum.
Source: A v. Director of Prosecution at Casemine, www.casemine.com/judgement/uk/5a8ff7a560d03e7f57eb0bff.
30 | Orders without Borders
3.5 EXISTENCE OF A TREATY AND RECIPROCITY
Most of the surveyed jurisdictions do not require a treaty as a precondition for
directly enforcing foreign confiscation orders.40 In the absence of applicable
treaties, they normally require an offer of reciprocity by requesting jurisdictions
whereby the latter provide assurances that a future request for similar assistance
addressed to them will be complied with. In France, an exception to the applica-
tion of the reciprocity rule is when a non-EU country submits a request for
extended confiscation.41 In this case, the request can only be enforced on the
basis of explicit provisions in a bilateral or multilateral treaty.
There seems to be little awareness, instead, that article 55(6) UNCAC may
constitute a sufficient legal basis for enforcement purposes. This may not be a
problem to jurisdictions that do not need a treaty to execute a request for asset
recovery. However, knowledge of this fact may be relevant for those where the
existence of a treaty is strictly required, lacking an alternative legal basis. In this
sense, interviewed practitioners from Italy and the United States confirmed that
UNCAC is considered an adequate mechanism for cooperation, with their
respective governments being able to provide assistance to requests made under
this treaty.
3.6 SUBSTANTIVE CONDITIONS AND GROUNDS
FOR REFUSAL
3.6.1 Overview
Although direct enforcement arguably offers a quicker and more straightfor-
ward channel to achieve asset recovery than indirect enforcement, it remains
subject to a degree of control by the requested jurisdiction.
Requests for direct enforcement of foreign confiscation orders are subject to
the conditions and requirements applicable to MLA requests in general (for
example, the provision of assurances of reciprocity, respect for prescribed forms
and channels of communication, and document authentication requirements).
They are also commonly examined against generally applicable grounds for
refusal such as lack of dual criminality, incompatibility with the requested juris-
diction’s fundamental principles, discriminatory nature of the request, and so
forth.
Additionally, as a discrete type of MLA, the direct enforcement of foreign
confiscation orders is subject to several specific requirements. Sections 3.6.2 and
3.6.3 of this study examine two conditions that consistently appear in all domes-
tic legal frameworks:
• That the foreign confiscation order is final and not subject to appeal
• That the persons in relation to whom the confiscation order was made were
given the opportunity to appear and assert defenses to cover either criminal
or NCB cases in proceeding in the requesting jurisdiction
Sections 3.6.4 to 3.6.11 in this study provide an overview of further conditions and
substantive requirements found in surveyed jurisdictions for requests for direct
enforcement. Some of these requirements are only present in a few legal frame-
works. The information in those sections is presented to illustrate the variety of
approaches to the subject.
Domestic Legal Approaches to Direct Enforcement | 31
Case Study 3.9: British Virgin Islands’ Direct Enforcement Procedure and
Conditions
For a foreign order to be enforced in the British Virgin Islands would not be contrary to the interests of jus-
Islands, the attorney general in its capacity as the cen- tice. In addition, it must be satisfied with the
tral authority would make the relevant application to following:
the High Court for the order’s registration. Once the
• At the time of registration, the order is in force and
application is granted, the foreign order will become
not subject to appeal.
enforceable.
• If the person against whom the order is made did not
However, a number of legislative requirements
appear in the proceedings, he or she needed to have
must be met before any registration application can be
received notice of the proceedings in sufficient time
granted. In particular, the High Court must be of the
to enable him or her to defend himself or herself.
opinion that enforcing the order in the British Virgin
Sources: Criminal Justice (International Co-operation) (Enforcement of Overseas Forfeiture Orders) Order, § 10 (2017); Proceeds of Criminal
Conduct (Enforcement of External Confiscation Orders) Order, § 33 (2017), provide for the enforcement of External Orders.
3.6.2 Non-appealability of the foreign order
Surveyed jurisdictions invariably establish that foreign confiscation orders shall
be in force and no longer subject to appeal as prerequisites for their
enforcement.
To dissipate any doubts and avoid terminological issues, a few jurisdictions42
define the meaning of “appeal” broadly as including any proceedings by way of
discharging or setting aside the order or an application for a new trial or stay of
execution. The legislation of Hong Kong SAR, China, further clarifies that “an
external confiscation order is subject to appeal so long as an appeal, further
appeal or review is pending against the order; and for this purpose an appeal,
further appeal or review shall be treated as pending until the expiration of the
time prescribed for instituting the appeal, further appeal or review under the law
of the place outside [Hong Kong SAR, China] concerned.”43
In some cases,44 legislation specifies that the non-appealability requirement
must be assessed at the time when the foreign order is being registered. This
clarification suggests that, at least in theory, countries may submit a formal
request for the direct enforcement of a confiscation order that is still formally
subject to appeal. This possibility might be interesting for saving time, poten-
tially allowing countries to request assistance even when a confiscation order is
not yet final, but when it is expected to become final shortly.
Some jurisdictions45 require that both the foreign judgment convicting the
offender and the confiscation order be final. This reflects the fact that in several
countries, particularly those belonging to the common law legal tradition, the
two decisions are contained in separate legal instruments and thus each of them
is subject to its own time frame and conditions for appeal. The question would
not arise in countries where the confiscation order is an integral part of the con-
viction judgment.
3.6.3 Fair trial in requesting jurisdictions
In all surveyed jurisdictions, the enforcement of foreign confiscation orders is
conditional on the verification that the rights of the defense were respected in
32 | Orders without Borders
the proceeding that took place in the requesting country. Most requested juris-
dictions46 are satisfied with the factual determination that the defendants were
duly notified of the relevant proceedings in sufficient time to defend themselves,
even when they did not appear in such proceedings. In Italy, an additional
requirement is that the defendant was granted the right to be questioned in a
language that he or she can understand and be assisted by a lawyer.47
Other jurisdictions envisage a broader examination that looks into whether
the foreign judgment was made under a system with procedures compatible
with due process requirements48 or whether the court in the requesting country
possessed the necessary requisites of independence and impartiality.49 The
United States poses the additional requirement that the judgment was not
obtained by fraud. Without further guidelines on how to interpret broad and
undefined notions such as due process, extended litigation could occur at court
hearings in the requested jurisdiction.
Unless reliable information exists on the violation of the procedural rights of
defendants in the requesting jurisdiction, the authorities of that jurisdiction
would normally consider the fair trial requirement fulfilled in the absence of
arguments raised by defendants at the court hearing in the requested
jurisdiction.
Case Study 3.10: Singapore’s use of the disposal inquiry mechanism in mutual
legal assistance (MLA) proceedings
This case concerned an influential businessman who notice of its confiscation proceedings. Therefore, a
was found to have collected bribes in awarding tele- fundamental principle of justice—the opportunity to
communications and construction contracts. The pro- be heard—which is a condition to enforcement of state
ceeds originating from the bribery scheme were B’s confiscation order, was not met.
moved from two foreign states in the amounts of As the accounts were seized by the police accord-
SGD2,000,000 and US$900,000 respectively, and ing to domestic investigations, Singapore authorities
deposited in Singapore bank accounts held by two used the domestic Disposal Inquiry Mechanism
shell companies. (DIM) for cross-border asset recovery.
With information from the two foreign states, Such mechanism is typically employed under
domestic money-laundering investigations began, Singapore’s domestic criminal procedure to return
which led to the discovery and domestic seizure by items seized by police in investigations to its rightful
police of SGD2,000,000 and US$900,000 deposited in owners. All persons with interests in the asset are
accounts held by the two shell companies. Following notified and invited to make claims to them. Generally,
domestic seizure, a joint MLA request was received the DIM is intended for things such as a computer,
from the two states for enforcement of state A’s confis- tools, and jewelry.
cation order for approximately SGD2,000,000 and The DIM had never been used before in mutual
state B’s confiscation order for approximately legal assistance. However, in this case, there were no
US$900,000. other claimants to the proceeds (state B was the only
The confiscation order from state A for the real prospective claimant); but there was sufficient
SGD2,000,000 had fulfilled the requisite legal require- evidence of state B’s claim to ownership, and the
ments under the Mutual Legal Assistance in Criminal defendant was very unlikely to challenge proceedings.
Matters Act and the money was confiscated without Given that Singapore courts use the common law
much difficulty. State A did not request repatriation of adversarial process, the Singapore authorities were
funds. confident the disposal inquiry would achieve return of
However, there were problems with state B’s the assets to state B. The full amount of recovered
request; state B had not given the defendant adequate funds of US$932,000 was returned to state B.
Domestic Legal Approaches to Direct Enforcement | 33
3.6.4 Penalty thresholds
In some jurisdictions, the underlying offense needs to satisfy a minimum penalty
requirement as a condition for the enforcement of related foreign confiscation
orders. Australia and the Seychelles outline it by demanding that the offence be
a serious offense. In Australia, a serious offense is defined as an offense for which
the maximum penalty is death, imprisonment for at least 12 months, or a sub-
stantial fine of legislated value.50
This requirement should not be confused with article 55(7) of the UNCAC,
according to which, “Cooperation […] may also be refused or provisional mea-
sures lifted if the requested State Party does not receive sufficient and timely
evidence or if the property is of a de minimis value” (section 2.1.5.2 of this study).
In the latter case, the rationale for refusing cooperation lies in the low value of
the assets whose confiscation is requested. Instead, in the case under consider-
ation, the rationale is to ensure that MLA procedures are only triggered where
the cost of executing them (normally borne by the requested country) is com-
mensurate to the gravity of the conduct at stake, regardless of the value of the
assets at stake. At the same time, the setting of penalty threshold conditions may
lead to a situation where an offense that is punished too lightly has nonetheless
generated high-value proceeds, and these cannot be confiscated abroad.
3.6.5 Location of the property subject to the foreign order
Under some legal frameworks, requesting jurisdictions need to confirm,51 or at
least indicate a reasonable suspicion,52 that the property needed to satisfy the
confiscation order is located in the requested jurisdiction.
The legislation of Russia further draws a distinction between property located
in its territory and property that, whereas geographically in its territory, is not
subject to its jurisdiction (potentially, thus, on diplomatic premises or other
assets belonging to a foreign state).53 In relation to the latter, a foreign confisca-
tion order may not be recognized and enforced.
3.6.6 Jurisdiction of the issuing authority
Some jurisdictions must be satisfied that the foreign confiscation order was
issued by a competent authority according to the laws of the requesting
jurisdiction.54 When enforcing conviction-based confiscation orders, l egislation
in the United States explicitly extends the scope of the inquiry into whether the
foreign court had personal as well as subject-matter jurisdiction.55
3.6.7 Dual criminality
For dual criminality, surveyed jurisdictions reveal a fragmented landscape with
four main approaches at play:
a. Compliance with the dual criminal principle is not required in relation to any
type of MLA, including asset recovery related requests.56
b. Dual criminality is in principle not required, with the exception of asset
recovery requests or, more broadly, measures requiring coercion.57
c. Compliance with the dual criminality requirement is always necessary in
relation to all forms of MLA. In some cases, the requirement is made explic-
itly applicable for actions aimed at the direct enforcement of foreign confis-
cation orders.58
34 | Orders without Borders
d. All MLA requests are examined against dual criminality, although this
is framed as a discretionary as opposed to compulsory ground for refusal.59
3.6.8 Dual confiscability
In addition to dual criminality, some jurisdictions subordinate the direct enforce-
ment of foreign confiscation orders to what may be called as dual confiscability.
In other words, the authorities of the requested jurisdiction need to be satisfied
that the property in question could have been the object of an equivalent mea-
sure in a purely domestic case.60
In some cases, the dual confiscability requirement receives a specific treat-
ment. The United States, for example, does not limit enforcement to situations
where the property sought to be provisionally restrained could be forfeited
under US law if the offense had occurred in the United States, but it is necessary
that the dual confiscability requirement be met for entry of a final confiscation
order. However, if the foreign provisional restraint order is enforced, even in the
absence of dual confiscability, it may still be possible for the parties to reach an
agreement to be sanctioned by the US court under which the property holder
consents to final forfeiture.61
3.6.9 Compatibility with the essential interests and
principles of the state
Most surveyed jurisdictions examine whether direct enforcement action would
negatively affect their national interests, sovereignty, fundamental legal princi-
ples, public order, and so forth.62 Under some legislative acts, the competent
authorities are also mandated to establish that the execution of the request
would not be contrary to the interests of justice.63
These provisions are standard ones found in many MLA laws. Whether con-
tained in general MLA-related statutes or specific asset-confiscation provisions,
similar provisions aim to equip requested jurisdictions with a safety valve and a
degree of flexibility to refuse the execution of a foreign request on grounds that
have not been specifically listed in domestic statutes. At the same time, their
broad and undetermined nature may lend them to abuse.
3.6.10 Interference with domestic proceedings
Under some legal frameworks, the direct enforcement of foreign confiscation
orders may be refused under the following conditions:
• Judicial proceedings are taking place in the requested jurisdiction for the
same facts or against the same person.64
• Confiscation orders have already been issued regarding the property that is
the object of the foreign request.65
• Enforcement would be in contradiction with international commitments vis-
à-vis another state.66
Domestic Legal Approaches to Direct Enforcement | 35
3.6.11 Financial burdens on the requested jurisdiction
Some jurisdictions make direct enforcement action conditional on a determina-
tion that it would not be excessively expensive. Under Canada’s legislation, for
example, the minister must refuse an asset confiscation request if they are “of the
opinion that enforcement of the order would impose an excessive burden on the
resources of federal, provincial or territorial authorities.”67 In Latvia, the request
may be refused if the expenses that would be incurred are not considered to be
commensurate with the seriousness of and harm caused by the criminal offence.68
3.7 DIRECT ENFORCEMENT OF FREEZING AND
SEIZING ORDERS
3.7.1 Overview
The fact that some jurisdictions are able to directly enforce foreign confiscation
orders does not necessarily mean that they can also take direct action vis-à-vis
foreign provisional orders.69 Whereas they can respond to foreign requests
through the enactment of domestic provisional measures, freezing and seizing
orders rendered by a foreign authority cannot always be directly enforced. In
these cases, foreign requests are examined against a set of conditions and, if
deemed acceptable, are enforced after issuance of an order taken in application
of procedures required for an equivalent domestic measure.
In some jurisdictions, the inability to directly enforce provisional measures is
justified by their temporary nature.70 Instead, other countries consider that
freezing and seizing orders may well be directly enforceable in much the same
way as confiscation orders once all the possible appeals have been exhausted.
Various surveyed countries indeed see no legal or practical obstacles in achiev-
ing this result.71 In these jurisdictions, a few conditions that are applicable to
foreign confiscation orders also apply to provisional orders. This includes, nota-
bly, the requirement that the foreign restraint order is not subject to appeal.72
Case Study 3.11: New Zealand’s procedure for the direct enforcement of foreign
restraining orders
Under the Mutual Assistance in Criminal Matters to register the foreign forfeiture order in New
Act 1992 (MACMA), requests are received by the Zealand.
attorney general’s office in its capacity as central In practice, formal MLA requests are received by
authority for mutual legal assistance (MLA). Once the Crown Law Office (CLO) on behalf of the attorney
the attorney general is satisfied that there are reason- general. Within the criminal team established within
able grounds to believe some or all of the property the CLO, specially trained counsels assess incoming
that is able to be restrained under the foreign restrain- requests. There may be communication between the
ing order is located in New Zealand, it may authorize CLO and the foreign jurisdiction to finalize the mate-
the commissioner of police to apply to the High Court rial to meet the required legal standards. In processing
36 | Orders without Borders
the request, the CLO takes note of the time framework the basis of only a facsimile copy of the foreign order.
and time constraints of the requesting jurisdiction. This fact reduces delays in waiting for the original of
It gives priority to requests that have been marked as the order arriving by the mail.
urgent and where there is a risk that the assets may be Once registered, the order is assigned to the local
dissipated. Following a positive assessment, the request asset recovery unit where the assets are situated. The
is referred to the deputy solicitor general (criminal asset recovery unit will enact the order and have
team) who, according to delegations from the attorney the assets restrained. It will serve documents on
general, consents to the request being actioned. local parties named and have the assets transferred
The hearing before the High Court can occur, if nec- to the official assignee. The official assignee is a gov-
essary, on an ex parte basis.a If the High Court is satisfied ernment agency working under the umbrella of New
that the foreign restraining order is in force in a foreign Zealand’s Ministry of Business, Innovation, and
country, it makes an order that it be registered in New Employment. The official assignee’s role is to deal
Zealand. with proceeds of crime or insolvency and bankruptcy
Significantly, MACMA allows for foreign restrain- matters.
ing orders to be registered in New Zealand initially on
a. Ex parte, that is, without notifying interested parties.
Case Study 3.12: South Africa’s template application for the registration of
foreign restraint orders
In South Africa, a foreign restraint order may be reg- the asset forfeiture unit, which belongs to the National
istered in terms of section 24 of the International Prosecuting Authority. Next is an example of a notice
Cooperation in Criminal Matters Act. The order is to the registrar concerning a foreign restraint order. A
received by the competent authority and, if it is not certified copy of the foreign order is required for
subject to review or appeal, it is sent to the High Court registration.
for registration. In practice, registration is handled by
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE REGISTRATION NO:…….....…………………
In re: Registration of a foreign restraint order: Mr. X
NOTICE TO THE REGISTRAR IN TERMS OF SECTION 24 OF THE SOUTH AFRICAN
INTERNATIONAL CO-OPERATION IN CRIMINAL MATTERS ACT 75 OF 1996
1. I am an adult, female/male advocate in the the Registrar of the Gauteng Division of the High
employ of the Asset Forfeiture Unit of the Court (the Registrar) on behalf of the Director
National Prosecuting Authority and I have been General of the Department of Justice and
duly authorised to make this official request to Constitutional Development.
Domestic Legal Approaches to Direct Enforcement | 37
2. I annex hereto a certified copy of a foreign the foreign restraint order has been registered
5.1
restraint order made against Mr. X (restraint at this division of the High Court; and
order). 5.2 Mr. X may within the prescribed period and in
3. In terms of section 24 of the International terms of the Rules of the Court, apply to the
Co-Operation in Criminal Matters Act 75 of honourable Court of this Division for the set-
1996 (the ICCMA) and the Regulations under the ting aside of the registration of the restraint
ICCMA, I hereby request the Registrar to open a order.
file/case cover in which this request and a copy of 6. To the best of my knowledge, Mr. X is currently
the restraint order is to be filed. present within/outside the Republic of South
4. The Registrar is further requested to register the Africa. His current address is: [….]
lodged restraint order by 7. Copies of the following documents are annexed
4.1 numbering the restraint order with a consecu- 7.1 Letter of request from the International
tive case number for the year during which it is Criminality Unit in London;
lodged; 7.2 Letter of request from the Serious Fraud Office
4.2 recording the restraint order in respect of the in London;
property which is specified therein and full 7.3 A letter from the Director-General: Department
particulars of that property, in so far as the par- of Justice and Constitutional Development;
ticulars are available on the case file. 7.4 The relevant sections of the ICCMA;
5. You are also requested to forthwith give notice, 7.5 The relevant Regulations under the ICCMA.
in writing and in accordance with [the applicable
regulations and forms], to Mr. X to the effect that
Dated at Pretoria on [date].
_____________________________
[Signature]
On behalf of the Director-General: Department of Justice and Constitutional Development
In comparison with domestic procedures in place for the direct enforcement
of foreign confiscation orders, those that are used to recognize freezing and seiz-
ing orders envisage fewer conditions. The scrutiny exercised by requested juris-
dictions is generally of a lower intensity. In Canada, for example, several grounds
for refusal are spelled out in relation to foreign confiscation orders, but not to
foreign restraint orders. In the Seychelles, the requirement that the foreign order
not be subject to appeal is explicitly set forth only in relation to confiscation
orders.
Some jurisdictions set a number of conditions that are specific to the recogni-
tion of foreign restraint orders. A critical one is that they may be obtained in ex
parte proceedings where the government can show a risk of dissipation or
flight.73
In relation to the direct enforcement of foreign restraint orders, major areas
deserving regulation are as follows:
• The extent of the validity of the domestic order through which a foreign
restraint order has been registered
• The stage of the procedure (in the requesting jurisdiction) in which a foreign
restraint order must have been issued for this order to be registered in the
requested jurisdiction
38 | Orders without Borders
• The probability that a final confiscation order will eventually be issued in the
requesting jurisdiction
Each of these issues are examined separately in the sections that follow.
3.7.2 Extent of the validity of the registration order
The question arises in practice when the validity of the preventive measure
according to the law of the requested country is shorter than the validity of a
similar measure according to the law of the requesting country or when the
requesting jurisdiction, after having obtained the registration of a provisional
order, does not act to request the enforcement of the subsequent confiscation
order, or when it makes no confiscation order at all (for example, because related
proceedings result in an acquittal).
The general rule is that the laws of the requested jurisdiction applicable to the
validity, duration, renewal, and so forth of domestic restraint orders are applica-
ble—once the necessary changes have been made—to foreign orders. In the
Seychelles, for example, a foreign restraining order registered in the Supreme
Court has effect, and may be enforced, as if it was a restraining order made by the
Supreme Court under any written law of Seychelles relating to the tracing, sei-
zure, confiscation, or forfeiture of proceeds of crime.74
According to interviewed practitioners, based on the Mutual Assistance Act,
Swiss authorities are in a position to keep foreign assets seized for several years.
However, the account holders have the right to appeal against the maintenance
of the seizure. If the foreign jurisdiction does not issue a confiscation order or
lengthy procedures last several years without progress and thus is not pursuing
the criminal proceeding swiftly enough, the seizure will have to be lifted.
In Italy, the deadlines are set in legislation, with provisional measures being
revoked if the requesting jurisdiction does not forward the confiscation order
within one year of the execution of the seizure. This term can be prolonged up to
six months.75
By contrast, under US law there are no statute-imposed time limits for keep-
ing in place provisional orders requested by a foreign jurisdiction. In theory, it is
possible that if a property owner claimed that the enforcement of the foreign
order was time barred under foreign law, the competent US court may direct the
government to inquire about the issue with the foreign authorities and report
back to the court for further consideration. Whereas this situation has not
occurred yet, US courts on their own initiative often request the government to
find out why no final confiscation order has been entered in the foreign
jurisdiction.
3.7.3 Procedural stage in the requesting jurisdiction
Whereas a few jurisdictions make the direct enforcement of foreign restraint
orders conditional on the requirement that the person in question be officially
charged, most do not provide for such condition. In New Zealand and South
Africa, for example, direct enforcement action can occur at any stage of the crim-
inal proceeding in the requesting jurisdiction, thus even before charges have
been raised.76
In the Seychelles, where the direct enforcement of foreign restraint orders is
also possible, the legislation does not specify at which stage of the criminal
Domestic Legal Approaches to Direct Enforcement | 39
proceedings those orders must have been made. Some guidance may be inferred,
however, from a separate set of provisions dealing with the indirect enforcement
of foreign restraining orders. In this case, the MLA law makes the enforcement
conditional on the fact that “a criminal proceeding has commenced in a foreign
country in respect of a serious offence.”77 Crucially, in both countries foreign
restraining orders are considered those made under the law of a foreign country
by a court or other judicial authority. By referring to orders made by a judicial
authority in general, such formulation ensures that direct enforcement action
can also be taken in relation to provisional orders issued in NCB proceedings.
3.7.4 Probability that a foreign order will be issued or be
enforceable
In Hong Kong SAR, China, there must be, as a minimum, reasonable grounds for
believing that an external confiscation order may be made in the proceedings
instituted in the requesting jurisdiction.78
In Italy, the enforcement of the foreign order for asset freezing and seizure
shall be refused “if there are reasons to believe that the conditions for the recog-
nition of the subsequent confiscation order will not be met.”79
3.8 RIGHTS OF INTERESTED PARTIES
3.8.1 Main approaches
Interested parties are all those with a reason to claim that the enforcement of the
foreign order would unfairly prejudice them. In direct enforcement procedures,
they include the person against whom the foreign order was made as well as
other parties such as those claiming to be bona fide holders and owners.80 In
New Zealand, the commissioner of police must serve notice of the court applica-
tion to every person who, to his or her knowledge, has an interest in the property
to which the order relates.81
The examination of domestic laws specifically dealing with the direct
enforcement of foreign orders reveal three main legislative approaches on the
issue of protecting the rights of interested parties:
• Some jurisdictions spell out the detailed rights and prerogatives of affected
(or potentially affected) parties. These countries often set forth procedures
about the timing and the modalities with which these rights shall be
exercised.82
• Other jurisdictions83 do not have any ad hoc provisions to protect third par-
ties’ interests in the context of MLA procedures for the enforcement of con-
fiscation orders. However, they refer to the general rules applicable to
domestic orders, which include general provisions for protecting affected
parties.
• In other cases, there are neither dedicated provisions nor an explicit refer-
ence to the applicability of rules dealing with domestic confiscation and
restraint orders. Whereas this might sometimes reveal a legislative gap, in
other cases it might simply suggest that legislators considered the application
of the general domestic regime implicitly applicable to foreign confiscation
and restraint orders and thus not worth stating in legislative terms.
40 | Orders without Borders
3.8.2 Right to be notified and take part in the hearing
The protection of the rights of interested parties normally starts with a notifica-
tion to them that an application for the registration of a confiscation or restrain-
ing order has been filed. In direct enforcement procedures, in particular, the goal
of notification aims to enable interested parties to make their representations at
the court hearing within the limits already highlighted, that is, enable them to
claim that the conditions for the recognition of the foreign order have not been
fulfilled, short of requesting the reexamination of the merits of the case.
Some jurisdictions set forth strict time requirements for the notice to be
served. In Italy, it is communicated at least 10 days before the hearing date to
enable the interested parties to take part in the hearing leading to the recognition
of the foreign confiscation order.84
In other cases,85 interested parties are only allowed to make representations
after the court has already registered the foreign order, but before the decision
has become enforceable. In Cyprus, “a registered confiscation order is executed
if, within six weeks from notification given to affected parties, these persons
took no action for the cancellation or the setting aside of the registration order.
If notification is impossible or the accused or the third person in the possession
of whom the proceeds are held cannot be located, despite making reasonable
efforts, the confiscation order is executed immediately.”86
Case Study 3.13: South Africa’s template notification to affected parties
Upon registration of the foreign order, according to person against whom the order is made. The following
the Regulations to the International Cooperation in is an example of a notice sent out by the registrar of the
Criminal Matters Act, a notice is to be sent to the High Court.
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: ………………………….
NOTICE OF REGISTRATION OF A FOREIGN RESTRAINT ORDER
To: Mr. Z
Residential address: […]
Business/employment address: […]
You are hereby notified that a foreign restraint 2. The business registered in accordance with the
order (attached hereto as Annexure A) has been regis- laws of the Republic of South Africa and located
tered at the High Court of South Africa, Gauteng at […];
Division, Pretoria on [date] in respect of the following 3. Any interest in the property located at […]; and
property/interests in property: 4. Any interest in a Standard Bank account with
account number […] held in the name of ABC
1. Any interest, including shares by Mr. Z in ABC Investments (Pty) Ltd which account is held at
Investments (Pty) Ltd (Registration number […]); the Fourways Branch of Standard Bank.
Domestic Legal Approaches to Direct Enforcement | 41
The registration of the foreign restraint order has the such registration came to your knowledge, and in
effect of a restraint order made by the above- terms of the rules of court, apply for the setting aside
mentioned High Court. of the registration of the order to the above-mentioned
In terms of section 24(3)(b) of the International High Court. If the notice was not served on you per-
Co-operation in Criminal Matters Act 75 of 1996 sonally it is presumed that registration came to your
read with regulation 16 of the Regulations for knowledge within 10 days after the date of service of
International Co-operation in Criminal Matters, 1997, the notice.
you may within 20 court days from the date on which
Signed at Pretoria on ……...
REGISTRAR OF THE HIGH COURT
PRETORIA
Because of the transnational nature of cases underlying MLA requests, inter-
ested parties are often not physically present in the territory of the requested
jurisdiction. This situation may severely complicate the task of reaching out to
them. Some jurisdictions take this aspect into consideration. In Russia, inter-
ested persons shall be notified of the place, date, and time of the hearing not later
than 30 days before the hearing if they are present in the territory of Russia. The
time limit is extended to six months for those who are not present in the
territory.87
In Brazil, interested parties have 10 days to present their arguments (deduzir
[to deduct] embargos) if they reside in the federal district where the Supreme
Court in charge of homologating the foreign (provisional or confiscation) deci-
sion is established, or 30 days if they reside elsewhere.88
3.8.3 Ex parte applications
To limit the risk of asset dissipation, some of the jurisdictions under examination
explicitly foresee the possibility to apply for a court order ex parte, without noti-
fying interested parties.89 For example, in New Zealand a court that receives an
application for the registration of a foreign restraining order may, on the request
of the applicant, consider the application without giving notice to any or all of
the interested persons if it is satisfied that there is a risk of the proposed restrained
property being destroyed, disposed of, altered, or concealed if notice were given
to those persons.90
3.8.4 Right of appeal
Some jurisdictions provide for the right of appeal to a higher court against the
decision with which the court (in the requested jurisdiction) has granted
enforcement power to a foreign confiscation order.91
In the United Kingdom, for example, if on an application for the Crown Court
to give effect to an external restraint or confiscation order by registering it, the
court decides not to do so, the decision may be appealed to the court of appeal,
which may either (a) confirm or set aside the decision to register or (b) direct the
Crown Court to register the external order.92 The legislation of Kazakhstan
42 | Orders without Borders
makes it clear that “the decision of the court may be appealed or protested in the
manner and terms established by this Code.”93
In some cases, domestic legislation sets forth the possibility to lodge a further
appeal to the highest judicial body in the country.94
3.8.5 Forms and modalities of the court hearing
A number of legal frameworks dealing with the direct enforcement of foreign
confiscation orders provide for a further layer of protection for intervening par-
ties by outlining the forms and modalities of the court hearing. In Japan, the
court shall hold the hearing at a public courtroom.95 Russian legislation requires
that the foreign request be considered by a single judge in open court.
Some laws aim to make the exercise of the right of defense effective.96 This
issue appears to be of particular relevance where intervening parties are not
familiar with the language and the legal system of the country in which the hear-
ing for the registration of a foreign confiscation order takes place. In Germany,
for example, “in respect of requests for enforcement of foreign orders for confis-
cation or deprivation, the convicted person as well as third parties who could,
depending on the circumstances of the case, claim rights to the object, may avail
themselves of the assistance of counsel at any stage of the proceedings. If the
convicted person did not privately appoint counsel, he shall be assigned counsel
if: because of the complexity of the factual and legal situation, the assistance of
counsel appears necessary; it is apparent that the convicted person cannot
TABLE 3.1 Main stages and flow of direct enforcement procedures
Stage 1: Request sent
The restraint or confiscation order is sent to the requested jurisdiction for enforcement purposes through mutual legal assistance
(MLA) channels.
Stage 2: Request evaluated by the central authority
The MLA central authority of the requested jurisdiction verifies that the request complies with the formal requirements in place for
MLA requests in general and those specifically set for the enforcement of foreign restraint or confiscation orders.
(Depending on domestic laws, the central authority may also be in charge of verifying compliance with all or some of the conditions
prescribed for the enforcement of foreign orders. For example, if the order is not subject to appeal, if the persons against whom the
order was made had the opportunity to defend themselves in the requesting jurisdictions, and so forth.)
Stage 3: Foreign order transmitted to court for registration or recognition
The central authority applies to the competent court for the registration and recognition of the foreign freezing or confiscation order.
(Alternatively, depending on domestic laws, the central authority transmits the documentation to another authority who makes the
formal court application. (For example, a law enforcement or prosecutorial authority.)
Interested parties are notified of the application and given the opportunity to make representations before the court. In the case of
restraint orders, the application to the court may be done ex parte to prevent the risk of asset dissipation.
Stage 4: Foreign order registered or recognized
The competent court registers or recognizes the foreign order if it is satisfied that the conditions prescribed for the enforcement of
the foreign restraint or confiscation order have been fulfilled (except when this assessment has already been made in Stage 2,
depending on domestic laws). The court is bound by the findings related to the facts of the case as they are stated in the foreign
request. The case is not reassessed on its merits.
Interested parties are heard at the court hearing. (In some jurisdictions, they are only allowed to make representations after the court
has registered the order, but before the order is enforced.)
Stage 5: Foreign order enforced
The foreign restraint or confiscation order is enforced by the requested jurisdiction as if it were a domestic order.
Note: Table 3.1 gives an overview of the main procedural steps generally followed in surveyed countries. Procedures in force in individual jurisdictions may
differ from the proposed model.
Domestic Legal Approaches to Direct Enforcement | 43
himself adequately protect his rights or; the convicted person is in detention
outside German territory and there are doubts whether he himself can ade-
quately protect his rights.”97
In Russia, persons held in custody whose property was confiscated through,
among other things, a foreign confiscation order, shall be given the right to par-
ticipate in the hearing directly or through a video conference as well as the right
to inform the court of their positions through their representative or in writing.
At the same time, failure to appear in the court of persons, timely notified of the
place, date, and time of the hearing (except those whose participation in the
hearing is recognized by the court as compulsory), shall not preclude the consid-
eration of the request.98
3.9 TAKEAWAYS
• The vast majority of the surveyed jurisdictions has adopted at least basic legal
mechanisms for the purpose of directly enforcing foreign confiscation and—
less commonly—freezing and seizing orders. Not all of them, however, appear
to be in a position to use such mechanisms in practice because they lack
implementing legislation on procedural matters.
• Direct enforcement mechanisms are employed by jurisdictions belonging to
both common law and civil law legal systems.
• The structure and level of detail of domestic laws dealing with direct enforce-
ment issues varies considerably. Most jurisdictions regulate the matter
through specific sections of MLA and asset recovery statutes or within legis-
lation generally dealing with the recognition of foreign judgments in criminal
matters.
• In some jurisdictions, procedures for direct enforcement are spelled out in
legislation dealing with specific crime categories, notably in anti- money-
laundering statutes. However, this choice raises the question of whether
such procedures can be applied by analogy to recognize foreign orders that
have been made in criminal proceedings other than for money-laundering
offenses.
• Countries should be cautious before concluding that their general exequatur
procedures can be used to enforce foreign confiscation orders as these proce-
dures are often only designed to give effect to foreign civil or arbitral
judgments.
• The availability of both direct and indirect enforcement mechanisms in
domestic legal frameworks is regarded as providing an important degree of
flexibility as requested jurisdictions can often choose the most effective chan-
nel to execute the request based on the circumstances of each case.
• Legislation on direct enforcement usually scrutinizes the request against
conditions and requirements applicable to MLA requests in general (for
example, reciprocity, dual criminality, document authentication). Also, for-
eign requests are consistently examined against the following two conditions:
(a) the foreign order is final or not subject to appeal and (b) the persons in
relation to whom the order was made were given a fair trial.
• Under direct enforcement models, whereas requested jurisdictions retain the
ability to review the request against a number of conditions, they do not have
to reopen a full domestic asset recovery case nor conduct a new investigation
44 | Orders without Borders
or a new trial on the merits of the case. In practice, this helps shielding the
case from delaying tactics, avoids duplication of efforts, and expedites pro-
ceedings. It also contributes to limiting confiscation enforcement cases from
becoming too resource-intensive for requested jurisdictions.
• For the sake of clarity and to avoid interpretative doubts, legislation enabling
the direct enforcement of foreign freezing and seizing or confiscation orders
should explicitly provide that the requested jurisdiction is bound by the find-
ings related to the facts of the case as they are stated in the foreign request (no
reexamination of the merits of the case). See Recommendation 5.1.3 of this
study.
• Although it is technically not a compulsory action under UNCAC, States
Parties should consider introducing the ability to directly enforce foreign
freezing and seizing orders. When such orders are no longer subject to
appeals in the requesting jurisdiction, the possibility to subject them to direct
enforcement offers the same advantages observed in confiscation orders,
notably the exclusion of case relitigation before the authorities of the
requested jurisdiction. See Recommendation 5.1.9 of this study.
• Legislation enabling the direct enforcement of foreign confiscation orders
should provide fair opportunities for affected parties to make representations
at proceedings set up in requested jurisdictions. They should also make regu-
lations to ensure the possibility of directly enforcing foreign freezing and
seizing orders through ex parte proceedings (that is, without notice being
given to affected parties). See Recommendation 5.1.7 of this study.
ANNEX
TABLE A3.1 Direct and indirect enforcement country comparison, by legal systema
DIRECT ENFORCEMENT OF FOREIGN DIRECT ENFORCEMENT OF FOREIGN IF DIRECT ENFORCEMENT, BAR TO CONDUCT
CIVIL LAW COMMON LAW MIXED FREEZING AND SEIZING ORDERS AND CONFISCATION ORDERS AND REVIEW ON MERITS (EXPLICIT/IMPLICIT/
COUNTRY SYSTEMS SYSTEMS SYSTEMS RELEVANT LEGISLATIVE BASIS RELEVANT LEGISLATIVE BASIS CANNOT BE INFERRED FROM LEGISLATION)
Australia X Yes Yes Implicit
Mutual Assistance in Criminal Mutual Assistance in Criminal (Exhaustive list of grounds for nonrecogni-
Matters Act, section 34, Requests Matters Act, section 34, Requests tion and registration of foreign orders)
for enforcement of foreign orders for enforcement of foreign orders
Brazil X Yes Yes Implicit
Criminal Procedure Code, Criminal Procedure Code, chapter (Exhaustive list of grounds for nonrecogni-
chapter III, Homologation of III, Homologation of foreign tion and registration of foreign orders)
foreign orders orders
British X No Yes Implicit
Virgin Criminal Justice (International (Exhaustive list of grounds for nonrecogni-
Islands Co-operation) (Enforcement of tion and registration of foreign orders)
Overseas Forfeiture Orders) Order,
section 10
Proceeds of Criminal Conduct
(Enforcement of External
Confiscation Orders) Order,
section 33
Canada X Yes Yes Implicit
Mutual Legal Assistance in Criminal Mutual Legal Assistance in (Exhaustive list of grounds for nonrecogni-
Matters Act, section 9.3 Criminal Matters Act, section 9.4 tion and registration of foreign orders)
China X No No
Cyprus X Yes Yes Explicit
Prevention and Suppression of Prevention and Suppression of “The Court […] shall be bound by the
Money Laundering and Terrorist Money Laundering and Terrorist findings as to the facts in so far as they are
Financing Activities Laws, part IV, Financing Activities Laws, part IV, stated in the conviction or decision of a
International Cooperation International Cooperation court of the foreign country or in so far as
such conviction or judicial decision is
implicitly based on them.”
(Prevention and Suppression of Money
Laundering and Terrorist Financing
Activities Laws, section 41(2))
Egypt, Arab X No No
Rep.
continued
Domestic Legal Approaches to Direct Enforcement | 45
TABLE A3.1, continued
DIRECT ENFORCEMENT OF FOREIGN DIRECT ENFORCEMENT OF FOREIGN IF DIRECT ENFORCEMENT, BAR TO CONDUCT
CIVIL LAW COMMON LAW MIXED FREEZING AND SEIZING ORDERS AND CONFISCATION ORDERS AND REVIEW ON MERITS (EXPLICIT/IMPLICIT/
COUNTRY SYSTEMS SYSTEMS SYSTEMS RELEVANT LEGISLATIVE BASIS RELEVANT LEGISLATIVE BASIS CANNOT BE INFERRED FROM LEGISLATION)
France X No (except EU) Yes Implicit
Criminal Procedure Code, Since 19 December 2020 direct (Exhaustive list of grounds for nonrecogni-
section 3, titre X, chapitre 1er, application of EU Regulation tion and registration of foreign orders)
section 3, (articles 694-10 à 2018/1805 vis-à-vis EU Member
694-13) States (except Ireland and
Denmark):
46 | Orders without Borders
Assistance aimed at restraining
proceeds of crime with a view to Cooperation with Denmark and
subsequent confiscation Ireland: (EU Framework Decision
2006/783): Criminal Procedure
Code, chapter III: International
Cooperation for the enforcement
of confiscation orders, section 1:
Transmission and execution of
confiscation orders pursuant to
EU Framework Decision
2006/783, articles 713-12 to
713-35
Cooperation with the United-
Kingdom:c
(Non-EU countries or countries):
Criminal Procedure Code, livre V
title I, chapter III Execution of
criminal judgments, section 2
(articles 713-36 to 713-41)
Germany X No (except EU) Yes Implicit
Act on International Cooperation in (EU countries): (Exhaustive list of grounds for nonrecogni-
Criminal Matters, sections 94 to 96 tion and registration of foreign orders)
Act on International Cooperation
in Criminal Matters, sections
88 to 90
(Non-EU countries):
Act on International Cooperation
in Criminal Matters, part IV,
Assistance through Enforcement
of Foreign Judgments
continued
TABLE A3.1, continued
DIRECT ENFORCEMENT OF FOREIGN DIRECT ENFORCEMENT OF FOREIGN IF DIRECT ENFORCEMENT, BAR TO CONDUCT
CIVIL LAW COMMON LAW MIXED FREEZING AND SEIZING ORDERS AND CONFISCATION ORDERS AND REVIEW ON MERITS (EXPLICIT/IMPLICIT/
COUNTRY SYSTEMS SYSTEMS SYSTEMS RELEVANT LEGISLATIVE BASIS RELEVANT LEGISLATIVE BASIS CANNOT BE INFERRED FROM LEGISLATION)
Hong Kong X No Yes Implicit
SAR, China Mutual Legal Assistance in (Exhaustive list of grounds for nonrecogni-
Criminal Matters Ordinance, part tion and registration of foreign orders)
VI, Assistance in Relation to
Confiscation, etc. of Proceeds of
Crime
India X No Yesb Implicit
Prevention of Money Laundering (Exhaustive list of grounds for nonrecogni-
Act, section 60(2A) tion and registration of foreign orders)
Indonesia X No No
Italy X Yes Yes Implicit
(Non-EU countries): (Non-EU countries): (Exhaustive list of grounds for nonrecogni-
tion and registration of foreign orders)
Code of Criminal Procedure, title V, Code of Criminal Procedure, title
Effects of foreign criminal V, Effects of foreign criminal
judgments. Enforcement of Italian judgments. Enforcement of Italian
criminal judgments abroad, section criminal judgments abroad,
I, Effects of foreign criminal section I, Effects of foreign
judgments, article 737-bis criminal judgments, articles 731
to 738
(EU countries):
(EU countries):
Legislative Decree n. 35/2016,
Implementation of Framework Legislative Decree n. 137/2015 on
Decision 2003/577 on the the implementation of Framework
execution in the EU of orders Decision 2006/78 on the
freezing property or evidence application of the principle of
mutual recognition of confisca-
tion orders
Japan X No Yes Explicit
Act on Punishment of Organized “In making the examination […] the court
Crimes, Control of Crime Proceeds may not review whether the finally-bind-
and Other Matters, chapter VI, ing adjudication concerned is justifiable or
Procedures for International not.”
Mutual Assistance in the Act on Punishment of Organized Crimes,
Execution of Adjudication of article 62(5)
Confiscation and Collection of
Equivalent Value and in the
securance thereof and Other
Matters
continued
Domestic Legal Approaches to Direct Enforcement | 47
TABLE A3.1, continued
DIRECT ENFORCEMENT OF FOREIGN DIRECT ENFORCEMENT OF FOREIGN IF DIRECT ENFORCEMENT, BAR TO CONDUCT
CIVIL LAW COMMON LAW MIXED FREEZING AND SEIZING ORDERS AND CONFISCATION ORDERS AND REVIEW ON MERITS (EXPLICIT/IMPLICIT/
COUNTRY SYSTEMS SYSTEMS SYSTEMS RELEVANT LEGISLATIVE BASIS RELEVANT LEGISLATIVE BASIS CANNOT BE INFERRED FROM LEGISLATION)
Kazakhstan X No Yes Implicit
Criminal Procedure Code, chapter (Exhaustive list of grounds for nonrecogni-
62, Recognition and enforcement tion and registration of foreign orders)
of judgments and decisions of
foreign courts
Korea, Rep. X No Yes Implicit
Act on Special Cases Concerning (Exhaustive list of grounds for nonrecogni-
the Prevention of Illegal Trafficking tion and registration of foreign orders)
in Narcotics, etc., article 64
48 | Orders without Borders
Act on Regulation and Punishment
of Criminal Proceeds Concealment,
article 11 Act on Special Cases
Concerning the Confiscation and
Return of Property Acquired
through Corrupt Practices, article 7
Latvia X No (except EU) Yes Explicit
hapter 82, (Non-EU countries):
Criminal Procedure Law c “The factual circumstances established in
sections 860 to 865 a court adjudication of a foreign state and
Criminal Procedure Law, Division
the guilt of a person shall be binding to a
Sixteen, Recognition of
court of Latvia.” (Criminal Procedure Law,
Judgments of a Foreign State and
section 760(2))
Execution of Punishment, chapter
69, General Provisions for the
Execution in Latvia of a
Punishment Imposed in a Foreign
State
(EU countries):
Criminal Procedure Law,
chapter 75
Lebanon X Yes Yes Implicit
Penal Code, article 29 Penal Code, article 29 (Exhaustive list of grounds for nonrecogni-
tion and registration of foreign orders)
Code of Civil Procedure, articles Code of Civil Procedure, articles
1009 to 1022 1009 to 1022
New X Yes Yes Implicit
Zealand Mutual Assistance in Criminal Mutual Assistance in Criminal (Exhaustive list of grounds for nonrecogni-
Matters Act, section 54 Request to Matters Act, section 55 Request tion and registration of foreign orders)
enforce foreign restraining order to enforce foreign forfeiture order
Criminal Proceeds (Recovery) Act, Criminal Proceeds (Recovery) Act,
sections 128 to 139 sections 140 to 149
continued
TABLE A3.1, continued
DIRECT ENFORCEMENT OF FOREIGN DIRECT ENFORCEMENT OF FOREIGN IF DIRECT ENFORCEMENT, BAR TO CONDUCT
CIVIL LAW COMMON LAW MIXED FREEZING AND SEIZING ORDERS AND CONFISCATION ORDERS AND REVIEW ON MERITS (EXPLICIT/IMPLICIT/
COUNTRY SYSTEMS SYSTEMS SYSTEMS RELEVANT LEGISLATIVE BASIS RELEVANT LEGISLATIVE BASIS CANNOT BE INFERRED FROM LEGISLATION)
Nigeria X No Yes (partly) Cannot be inferred from legislation
Mutual Legal Assistance Act,
section 22(1)
Panama X No No
Peru X No Yes Explicit
Regulation of Legislative Decree “[Those who oppose the request to execute
N.1373 on the Extinction of the confiscation order] can only provide or
Ownership, article 75 request the evidence that is pertinent and
conductive in relation to the fulfillment of
the requirements for the execution of a
foreign order in Peru.” (article 78(5),
Regulation of the Legislative Decree 1373)
Russian X No Yes Implicit
Federation Criminal Procedure Code, chapter (Exhaustive list of grounds for nonrecogni-
55.1, Procedure for Consideration tion and registration of foreign orders)
and Resolution of Issues Related to
the Recognition and Enforcement
of the Verdict, Foreign Court Order
in Part of Confiscation on the
Territory of the Russian Federation
of the Proceeds of Crime
Seychelles X Yes Yes Implicit
Mutual Assistance in Criminal Mutual Assistance in Criminal (Exhaustive list of grounds for nonrecogni-
Matters Act, part VI—Proceeds of Matters Act, part VI—Proceeds of tion and registration of foreign orders)
Crime—Division 2—Requests by Crime—Division Requests by
Foreign Countries Foreign Countries
Singapore X No Yes Implicit
Mutual Assistance in Criminal (Exhaustive list of grounds for nonrecogni-
Matters Act, sections 29 to 32 and tion and registration of foreign orders)
Third Schedule
South Africa X Yes Yes Implicit
International Co-operation in International Co-operation in (Exhaustive list of grounds for nonrecogni-
Criminal Matters Act, section 24, Criminal Matters Act, section 20, tion and registration of foreign orders)
Registration of foreign restraint Registration of foreign confisca-
order tion order
Regulations under the International Regulations under the
Co-Operation in Criminal Matters International Co-Operation in
Domestic Legal Approaches to Direct Enforcement | 49
Act, chapter 5 Criminal Matters Act, chapter 4
continued
TABLE A3.1, continued
DIRECT ENFORCEMENT OF FOREIGN DIRECT ENFORCEMENT OF FOREIGN IF DIRECT ENFORCEMENT, BAR TO CONDUCT
CIVIL LAW COMMON LAW MIXED FREEZING AND SEIZING ORDERS AND CONFISCATION ORDERS AND REVIEW ON MERITS (EXPLICIT/IMPLICIT/
COUNTRY SYSTEMS SYSTEMS SYSTEMS RELEVANT LEGISLATIVE BASIS RELEVANT LEGISLATIVE BASIS CANNOT BE INFERRED FROM LEGISLATION)
Spain X No (except EU) No (except EU) Implicit
50 | Orders without Borders
Law 18/2006 on the implementa- Law 4/2010, on the implementa- (Exhaustive list of grounds for nonrecogni-
tion in the EU of orders freezing tion in the EU of judicial orders tion and registration of foreign orders)
property or evidence for confiscation
Switzerland X Yes Yes Implicit
Federal Law on International Federal Law on International (Exhaustive list of grounds for nonrecogni-
Assistance in Criminal Matters, Assistance in Criminal Matters, tion and registration of foreign orders)
article 18 article 74a
United Arab X No Yesb Cannot be inferred from legislation
Emirates Federal Decree-law no. (20) of
2018 on Anti-Money Laundering
and Combating the Financing of
Terrorism and Financing of Illegal
Organisations, art. 20
United X No Yesc Implicit
Kingdom Proceeds of Crime Act 2002 (Exhaustive list of grounds for nonrecogni-
(External Requests and Orders) tion and registration of foreign orders)
Order 2005, sections 20–27 and
142
United X Yes Yes Implicit
States 28 U.S.C. § 2467 28 U.S.C. § 2467 (Exhaustive list of grounds for nonrecogni-
tion and registration of foreign orders)
Note: EU = European Union; SAR = Special Administrative Region.
a. To the extent possible, data were collected on the basis of desk research and confirmed by interviewed practitioners. In some cases, data reflect best estimates obtained through the analysis of domestic laws,
but could not be officially confirmed.
b. Limited to confiscation orders dealing with proceeds of money-laundering offenses, terrorist financing, or financing of illegal organizations and issued by a court or judicial authority of a state with which the
United Arab Emirates has entered into a ratified convention.
c. Mutual legal assistance for asset recovery is covered by Title XI (freezing and confiscation) of Part Three (law enforcement and judicial cooperation in criminal matters) of the “Trade and Cooperation Agreement
Between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part.”
The United Kingdom will no longer be bound by the EU legal framework on the mutual recognition of foreign freezing and confiscation orders. Unless a new arrangement is negotiated with the EU, the United
Kingdom will thus have to rely on indirect enforcement for freezing and seizing orders issued in EU member states.
Domestic Legal Approaches to Direct Enforcement | 51
NOTES
1. The competent authority of China will review the State Parties’ confiscation requests and
may arrange for their execution if the legal conditions are met.
2. Law no. 80 for 2002 Promulgating the Anti-Money Laundering Law and Its Amendments
(Arab Republic of Egypt).
3. In US domestic public corruption cases, restraining measures can only be taken in relation
to proceeds. However, there is the possibility to criminally confiscate—albeit not restrain—
substitute assets. The foreign order enforcement authority is interpreted more broadly than
the corresponding domestic one, partly out of the need to meet treaty obligations.
4. South Africa and United States.
5. For example, France and Italy.
6. For example, Russia and South Africa.
7. For example, India, Nigeria, and United Arab Emirates.
8. As mentioned in section 3.1 of this study, whereas the Arab Republic of Egypt has the possi-
bility to directly enforce foreign confiscation orders through the anti-money laundering
statute, resort to indirect enforcement through the adoption of a domestic confiscation
order is inevitable owing to a lack of implementing legislation.
9. The Prevention of Money-Laundering Act, 2002, § 60(2A) (India).
10. Federal Decree Law no. (20) of 2018 on Anti-Money Laundering and Combating the
Financing of Terrorism and Financing of Illegal Organisations, art. 20 (United Arab
Emirates).
11. For example, Germany, Italy, Kazakhstan, and Latvia.
12. Criminal Procedure Law, ch. 60, § 790 (Latvia).
13. Act on International Cooperation in Criminal Matters, pt. IV, Assistance through
Enforcement of Foreign Judgments (Germany).
14. Constitution of Brazil, art. 105.
15. Civil Procedure Code, ch. 4, art. 296 (Arab Republic of Egypt).
16. In this regard, a decision by Panama’s Supreme Court of Justice (February 9, 2015) clarified
that “the claim is a declaration of will made before the judge and against the counterpart;
it is the act by which the judge seeks to recognize something with respect to a certain legal
relationship. It is ‘personal’ when the basis or cause for the request rests on the affirmation
of a relative or credit-related right.” General Decision of the Supreme Court of Panama,
“Request for Recognition and Enforcement of Foreign Divorce Judgment rendered by the
Circuit Court for Genesee County,” https://vlex.com.pa/vid/divorcio-corte -suprema
-justicia-592789138).
17. Foreign Judgment (Reciprocal and Enforcement) Act, ch. 175 (Nigeria).
18. In the case of Kazakhstan, Latvia, and Russia, the central authority is directly tasked with
applying to the competent court.
19. In Cyprus, the competent law enforcement entity is the Unit for Combating Money
Laundering (MOKAS), established in the attorney general’s office and composed of repre-
sentatives of the attorney general, the chief of police, and the director of the Department of
Customs and Excise. In New Zealand, it is the commissioner of the police.
20. Criminal Procedure Law, § 754 (Latvia).
21. Mutual Legal Assistance in Criminal Matters Act 1992, § 56 (New Zealand).
22. Mutual Assistance in Criminal Matters Act, § 34A(1) (Australia).
23. For example, Canada, Russia, and United States.
24. UNCAC, art. 54(1)(c) encourages parties to introduce proceedings “to allow confiscation of
[…] property without a criminal conviction in cases in which the offender cannot be prose-
cuted by reason of death, flight or absence or in other appropriate cases.” Depending on the
country under consideration, NCB proceedings can take place within both criminal and civil
proceedings. In common law jurisdictions, in particular, NCB forfeiture laws typically
52 | Orders without Borders
establish proof on a “balance of probability” standard, which is in contrast to the “beyond
any reasonable doubt” standard applicable in the context of conviction-based proceedings.
For a detailed analysis of the features and advantages of introducing NCB systems in national
legislation as well as the illustration of related good practices, see Greenberg and others
(2009).
25. For example, Italy, Latvia, New Zealand, and South Africa.
26. Code of Criminal Procedure, art. 731, ¶ 1 bis (Italy).
27. The Prevention and Suppression of Money Laundering and Terrorist Financing Law, § 37
(Cyprus).
28. For example, Hong Kong SAR, China; Korea; Russia; and Singapore.
29. Mutual Assistance in Criminal Matters Act, § 2 (Singapore).
30. Act on Special Cases Concerning the Prevention of Illegal Trafficking in Narcotics,
Psychotropic Substances and Hemp, art. 64(1) (Korea).
31. Regulation of Legislative Decree 1973 on the expiration of ownership, art. 75 (Peru).
32. By contrast, if the public official in question argued that new facts have occurred since the
rendering of the decision in the requesting jurisdiction, or that certain facts existed at that
time but were not brought to the attention of the competent authorities, the requested juris-
diction would arguably assess them anew. Most likely, though, it would refer them back to
the requesting jurisdiction for fresh examination.
33. Law on the Prevention and Suppression of Money Laundering and Terrorist Financing,
art. 41(2) (Cyprus).
34. Criminal Procedure Law, § 760(2) (Latvia).
35. Act on Punishment of Organized Crime, Control of Crime Proceeds and Other Matters,
art. 62 (Japan).
36. Regulation of the Legislative Decree 1373 on the Expiration of Ownership, art. 78(5) (Peru).
37. Council Framework Decisions 2003/577/JHA on the Execution in the European Union of
Orders Freezing Property or Evidence, art. 5; Council Framework Decision 2006/783/JHA
on the Application of the Principle of Mutual Recognition to Confiscation Orders, art. 7.
38. Regulation 2018/1805 on the Mutual Recognition of Freezing Orders and Confiscation
Orders, arts. 7 and 18.
39. Procedure for Consideration and Resolution of Issues Related to the Recognition and
Enforcement of the Verdict, Foreign Court Order in Part of Confiscation on the Territory of
the Russian Federation of the Proceeds of Crime, Criminal Procedure Code, art. 473.4(7),
ch. 55.1.
40. Notable exceptions include Canada, Cyprus, Italy, and Latvia. In Latvia, the lack of an agree-
ment with a foreign state can be a specific ground for refusing the execution of a foreign
judgment, including a confiscation order (Criminal Procedure Law of Latvia, § 751). In Italy,
under article 731 of the Code of Criminal Procedure, the direct enforcement of foreign confis-
cation orders requires the existence of an international instrument (bilateral or multilateral
treaty or agreement). In Canada, the direct enforcement of foreign restraint or confiscation
orders requires the existence of a bilateral or international instrument that contains recipro-
cal MLA provisions. This instrument does not have to be technically a treaty under interna-
tional law as it can also take the form of an administrative arrangement. However, in the
absence of such an agreement, reciprocity alone does not offer a sufficient basis.
41. The notion of extended confiscation refers to the ability to confiscate assets that are not
necessarily direct proceeds of a crime so that there is no need to establish a connection
between suspected criminal assets and a specific criminal conduct.
42. For example, British Virgin Islands; Hong Kong SAR, China; Singapore; and United
Kingdom.
43. Mutual Legal Assistance in Criminal Matters Ordinance, Laws of Hong Kong SAR, China,
§28(3), ch. 525.
44. British Virgin Islands; Cyprus; and Hong Kong SAR, China.
45. Canada and Seychelles.
Domestic Legal Approaches to Direct Enforcement | 53
46. For example, British Virgin Islands; Cyprus; Germany; Hong Kong SAR, China; Russia;
Singapore; and South Africa.
47. Criminal Procedure Code, art. 733 (Italy).
48. Peru and United States.
49. For example, Germany and Italy.
50. Including offenses punishable only by fines is particularly important in corporate offending,
as imprisonment is not a readily enforceable punishment against a corporation.
51. For example, the Russian Federation.
52. For example, Australia and New Zealand.
53. Procedure for Consideration and Resolution of Issues Related to the Recognition and
Enforcement of the Verdict, Foreign Court Order in Part of Confiscation on the Territory of
the Russian Federation of the Proceeds of Crime, Criminal Procedure Code, art. 473.5,
ch. 55.1.
54. Brazil, Lebanon, and South Africa.
55. Enforcement of Foreign Judgment, 28 U.S.C. § 2467, (d)(1)(B)(C).
56. For example, South Africa.
57. For example, the British Virgin Islands, Canada, France, Spain, and the United Kingdom.
Kazakhstan only requires dual criminality when assistance is provided based on reciprocity,
not when the request is based on UNCAC.
58. For example, Canada, Germany, Italy, Japan, and Korea. In Hong Kong SAR, China, dual
criminality is a mandatory ground for refusal under Section 5(1)(g) of Chapter 525 of the
Mutual Legal Assistance in Criminal Matters Ordinance (MLAO) and is required for coer-
cive measures, such as the enforcement of foreign confiscation orders. For assistance that
does not involve coercive measures, assistance may be rendered under other forms of inter-
national cooperation outside MLAO and dual criminality may not be necessary.
59. For example, Australia, New Zealand, and United Arab Emirates.
60. For example, Germany, Italy, and Korea.
61. See Enforcement of Foreign Judgment, 28 U.S.C. , pt. VI, ch. 163, § 2467.
62. For example, Italy, Latvia, Lebanon, Peru, Russia, and Singapore.
63. For example, British Virgin Islands; Cyprus; and Hong Kong SAR, China.
64. For example, Italy, Japan, and Korea.
65. Peru and Korea.
66. Criminal Procedure Law, § 751.9 (Latvia).
67. Orders of Forfeiture, Mutual Legal Assistance in Criminal Matters Act, § 9.4.2(c) (Canada).
68. Code of Criminal Procedure, § 751(9) (Latvia).
69. For example, British Virgin Islands, Germany, Japan, Kazakhstan, Korea, Singapore, and
United Kingdom.
70. British Virgin Islands and Singapore.
71. For example, Italy.
72. For example, Brazil, Cyprus, and South Africa.
73. For example, the United States.
74. Mutual Assistance in Criminal Matters Act, §27(7) (Seychelles).
75. Criminal Procedure Code, art. 737-bis (Italy).
76. In New Zealand, criminal proceedings need simply to have commenced in the requesting
jurisdiction for the attorney general to authorize an application for direct enforcement of an
interim foreign restraining order (Mutual Assistance in Criminal Matters Act, § 60).
77. Mutual Assistance in Criminal Matters Act, § 29(a) (Seychelles).
78. Mutual Legal Assistance in Criminal Matters Ordinance, Laws of Hong Kong SAR, China
(MLAO), ch. 525, § 6 of schedule 2.
79. Criminal Procedure Code, art. 737-bis-1 (Italy).
54 | Orders without Borders
80. Australia refers to any person who is suspected of having an interest in the property.
81. In relation to foreign restraint orders, New Zealand makes a distinction between persons
subject to a restraining order and other persons that have an interest in the property. The
former’s right of appearance at the court hearing is conditioned on him or her not having
been granted the possibility to properly defend himself in proceedings in the requesting
country, or in any other case where he obtains the leave of the court to appear at the hearing
of the application. Instead, the other persons who have a severable interest in the property
may apply to the court to have their interest excluded from a restraining order that the court
may make.
82. For example, South Africa has enacted detailed regulations under its 1996 International
Cooperation in Criminal Matters Act. Peru’s legal framework gives notified people a period
of eight days to challenge a foreign request for direct enforcement.
83. For example, Canada, Cyprus, Korea, and Seychelles.
84. Criminal Procedure Code, art. 127 (Italy).
85. For example, Canada, Cyprus, and South Africa.
86. The Prevention and Suppression of Money Laundering and Terrorist Financing Laws of
2007—Updated 2018, §39(4) (Cyprus).
87. Federal Law “On Amendments to the Code of Criminal Procedure of The Russian
Federation,” Criminal Procedure Code, art. 473.4(2).
88. Homologation of foreign orders, Criminal Procedure Code of Brazil, ch. III.
89. For example, Australia, New Zealand, United Kingdom, and United States.
90. Criminal Proceeds (Recovery) Act, 2009, § 22 (New Zealand).
91. For example, Italy, Japan, Kazakhstan, and United Kingdom.
92. The Proceeds of Crime Act 2002 (External Requests and Orders) Order, § 23, ch. 2, External
Orders, pt. 2, (United Kingdom).
93. Recognition and enforcement of judgments and decisions of foreign courts, Code of Criminal
Procedure, art. 608(8), ch. 62 (Kazakhstan).
94. In the United Kingdom, the ultimate appellate court is the Supreme Court. In Japan, a
special “kokoku” appeal may be lodged with the Supreme Court against a decision by a
kokoku appeal court.
95. Examination by the Court, ch. VI: Procedures for International Mutual Assistance in the
Execution of Adjudication of Confiscation and Collection of Equivalent Value and in the
Securance Thereof and Other Matters, Act on Punishment of Organized Crimes, Control of
Crime Proceeds and Other Matters, art. 62(8) (Japan).
96. For example, Germany, Japan, and Russia.
97. Assistance of Counsel, pt. IV, Assistance through Enforcement of Foreign Judgments, Act on
International Cooperation in Criminal Matters, § 53 (1) and (2) (Germany).
98. Federal Law on Amendments to the Code of Criminal Procedure of the Russian Federation,
arts. 473(4)(3 and 5).
4 Challenges and Obstacles to
Direct Enforcement Action
4.1 OVERVIEW
Surveyed jurisdictions face a variety of challenges in either directly enforcing
foreign confiscation orders or in having their domestic orders enforced abroad.
Of these challenges, only a few appear to be linked to intrinsic difficulties in
activating and applying procedures for directly enforcing foreign confiscation
orders. Indeed, most challenges are of a general nature and appear to be com-
monly found in mutual legal assistance (MLA) in general (for example, cumber-
some MLA procedures, lack of knowledge of foreign legal systems, requests
based on dated information where the assets have already been dissipated,
poorly drafted or overly vague requests, and so forth).1
Such challenges suggest that although direct enforcement mechanisms may
be faster and more straightforward channels for confiscation orders to be exe-
cuted abroad compared with indirect mechanisms, in practice their higher
performance may be thwarted by drawbacks and inefficiencies affecting
international judicial cooperation in criminal matters.
The following sections provide an overview of the main difficulties
highlighted by practitioners belonging to surveyed jurisdictions.
4.2 LIMITED FAMILIARITY WITH AND USE OF DIRECT
ENFORCEMENT PROCEDURES
Practitioners from several jurisdictions indicate that, at least in theory, they are
well acquainted with the procedures in place to directly enforce foreign confis-
cation orders. Some countries, such as France, indicate that certain courts are
often dealing with MLA requests for purposes of real estate seizure or confisca-
tion, owing in particular to the location of the assets that are often found in areas
where real estate prices are high.2
However, experts from other jurisdictions point out that such procedures are
rarely used in practice as few or no requests for the registration of foreign con-
fiscation orders are received. In South Africa, whereas direct enforcement
requests are reported to be well-known and easily processed by the central
55
56 | Orders without Borders
authority, a degree of unfamiliarity might be present at the court level (although
generally this would not prevent or delay registration).3 Experts from Spain
report that incoming MLA requests from non-EU states remain very low at
roughly 9 percent. Within that 9 percent, requests for asset freezing or confisca-
tion are even rarer. According to Canadian experts, domestic and foreign law
enforcement and prosecuting authorities are not always aware of the existence
of the MLA processes for directly enforcing foreign confiscation orders.4 At the
same time, there is a perception that the number of requests in this area, although
not pursued as a routine practice, are growing.
Whereas some countries can, at least on paper, take direct enforcement
action, they have not had the opportunity yet to apply the relevant legal frame-
work. The British Virgin Islands suggested that it would rely on existing stan-
dard operating procedures to obtain guidance if and when such requests would
be made. In Peru, where the possibility of directly enforcing foreign confiscation
orders has only been introduced recently, the central authority for MLA has not
yet received any request. France practitioners mention that so far they have had
limited occasions to have their confiscation orders executed outside of the EU.
In short, the landscape appears to be polarized, with some jurisdictions
having a relatively high degree of familiarity and practical experience with direct
enforcement mechanisms, while others being much less accustomed to them,
even when such mechanisms are formally envisaged in their domestic laws.
Case Study 4.1: Statistical information on enforcement action in surveyed
countries
Since 2010, Australia has received 47 mutual legal 27 foreign freezing orders have been registered and
assistance (MLA) requests seeking the direct enforced.
enforcement of foreign freezing and seizure or con- In France, the Agency for the Recovery and
fiscation orders. Eight of these requests relate to Management of Seized and Confiscated Assets
orders issued in investigations in corruption and (AGRASC) provided the following data:
related offenses. Moreover, Australian practitioners
• Direct execution of a foreign freezing and seizure
reported an increase in the number of enquiries
order (execution of a freezing certificate on the
and requests from foreign jurisdictions seeking the
basis of EU Framework Decision 2003/577):
direct enforcement of foreign orders over the past
80 cases and 131 properties (56 real estate, 55 bank
few years.
accounts, 12 cash sums, 4 financial instruments,
In New Zealand, 17 foreign jurisdiction orders have
2 credits, 1 seizure of company shares, and
been received since 2008, of which 11 have been regis-
1 miscellaneous property)
tered and 1 is still under consideration.
• Execution of MLA requests for freezing and
In Hong Kong SAR, China, from 2014 to 2018, seven
seizure purposes not based on EU Framework
external confiscation orders have been registered.
Decision 2003/577: 107 files relating to 304 prop-
In Cyprus, between 2013 and 2018, five foreign con-
erties (130 real estate, 118 bank accounts, 29 sums
fiscation orders have been registered and enforced,
seized in cash, 15 financial instruments, 7 claims,
either on the basis of MLA requests or the EU mutual
2 boats, 1 seizure of gold or precious metals, and
recognition legal framework. Within the same period,
2 seizures of company shares)
Challenges and Obstacles to Direct Enforcement Action | 57
• Direct execution of a confiscation order: 16 cases represent requests dealt with by the Crown
(13 real estate, 40 bank accounts, 1 financial in- Prosecution Service and not the United Kingdom, or
strument, 1 cash sum, and 1 claim) on the basis of England and Wales as a whole.) Several jurisdictions
EU Framework Decision 2006/783 and 18 cases were not in a position to provide statistics owing to
(22 bank accounts, 10 real estate, 4 financial sheer data unavailability or difficulties in extracting
instruments, 4 cash, and 2 claims) on the basis of data relating to direct enforcement–related requests
bilateral or multilateral agreements from general MLA statistics.
The statistics provided by France may be incomplete In the United States, requests for restraint have
as AGRASC is only informed of the seizure of move- been growing since 2014. However, in recent years, the
able property for confiscatory purposes that is number of executable requests is about 12 annually
entrusted to it for sale before the judgment. because of several reasons: (a) the assets are often no
The United Kingdom reports a steadily growing longer in the United States, (b) the orders do not relate
number of foreign restraint and confiscation orders to confiscation proceedings, or (c) the foreign jurisdic-
being recognized and executed under the EU legal tion does not have the ability to obtain a court order
framework: although there were only 4 in 2014, in 2018 for restraints before charges are filed, which US
there were 45. (Reported data for the United Kingdom law requires.
Case Study 4.2: New Zealand’s opening of a domestic investigation
Yan committed a significant fraud in China and fled to confiscation began and was made final domestically
New Zealand. He was investigated in New Zealand using the Criminal Proceeds (Recovery) Act. A total of
using money-laundering statutes. China supplied New $NZ43 million was confiscated, which was shared
Zealand the evidence to support the fraud. Asset with China.
The general paucity of requests executed through direct enforcement chan-
nels may have different explanations. In some countries, the limited amount of
MLA in this area may stem from the narrow size of their economies and thus the
limited criminal opportunities offered by small financial centers. Another reason
may be that the launch of cross-border financial investigations into criminal
assets held abroad is complex and requires specific expertise, time, and resources.
In many jurisdictions, such investigations may simply not be carried out or not
reach the level of maturity to enable the preparation of sufficiently solid MLA
requests. A more specific reason may be jurisdictions’ reliance on alternative
avenues for asset recovery. As mentioned in this study’s section 2.1.2, the use of
alternative channels may reflect some countries’ propensity to make strategic
use of the full range of legal options to recover assets transferred abroad.
For requested jurisdictions, in particular, lack of experience in applying pro-
cedures for direct enforcement means that they would not be able to rely on
precedents and jurisprudential guidelines, which may offer crucial interpreta-
tive tools to clarify ambiguous legal terms or procedures, if a direct enforcement
case arises.
58 | Orders without Borders
4.3 LACK OF SUFFICIENT, OR SUFFICIENTLY PRECISE,
INFORMATION
For several requested jurisdictions, a major and frequent concern is that requests
do not contain enough information. Reference is often made to so called “fishing
expeditions,” whereby requested countries are vaguely asked to “please find,
freeze and return all properties held by Mr. X.” Canada mentions wrong bank
account numbers are provided to identify assets in the foreign jurisdiction.
Experts from the United States report that, historically, foreign requests often
did not provide enough information about the nominees or legal entities that
may be used to hide assets in a particular case.5
In most countries, MLA requests for confiscation and asset recovery pur-
poses shall, among other things, include as a minimum: (a) a factual summary of
the case; (b) a description of the nexus between the underlying criminal activity
and the identified asset; (c) text of any applicable statutes, including penalties, on
which the investigation or prosecution is based; and (d) an explanation of the
assistance sought and its legal and factual relationship to the investigation or
proceeding that forms the basis of the request, including identification of any
assets thought to be present in the requested jurisdiction.
Failure to include the minimum information, especially according to the
terms of the treaties under which the request is being made, can severely slow
the process. For example, missing information may include an insufficient depic-
tion of the facts of the case or the precise act of which the person concerned
stands accused. Whenever they decide to take a proactive stance, some jurisdic-
tions report contacting their foreign counterparts to solicit additional clarifica-
tions, documentation, or explanations. In some cases, according to the same
jurisdictions, lack of information prevents the request from being executed
altogether.6
A recurrent problem appears to be failure by requesting jurisdictions to estab-
lish the link between the offenses in question and the assets purportedly held
abroad. As criminal proceeds are often held in the names of nominees or shell
companies, without sufficient evidence to identify them as criminal proceeds,
Case Study 4.3: Non-execution in France of a request for confiscation regarding
immoveable property
On November 6, 2019, the British judicial authority Thus, the British confiscation request became irrel-
sent a confiscation certificate to the French judicial evant. If the French court had authorized its execution
authority to confiscate a building owned by a person and if the Agency for the Recovery of Seized and
convicted for money laundering in the United Confiscated Assets had been responsible for the sale of
Kingdom. The building had not been seized during the the property, the real estate’s full price would have been
investigation and the only information provided by paid to the French tax administration, whose claim
the British was limited to the location of the property over the property had been previously established.
and its supposed value. However, after having Financial investigations carried out upstream, and in
inquired, the prosecutor of Bobigny discovered that a particular during the investigation, might have enabled
mortgage had been registered on the building to the the British to identify this property and the fact that no
benefit of the French treasury. value could be obtained from the proceeds of its sale.
Challenges and Obstacles to Direct Enforcement Action | 59
many countries cannot enforce foreign orders in these cases.7 However, Egyptian
experts mention that requested jurisdictions could support requesting countries
more actively by helping the requesting countries prove the link between the
asset and the crime committed.
Another highlighted challenge is where the property has not been described
correctly or in a way that the requested jurisdiction can readily and easily
recognize. For instance, a street address is given instead of the property descrip-
tion. Such challenges are compounded by the fact that, in some countries,
different state systems describe property differently.8
A specific difficulty reported lies in executing requests for restraint or tempo-
rary measures in cases where assets are held by third parties.9 Frequently, these
are complex cases where detailed and tangible evidence needs to be provided on
how specific assets flowed from the perpetrator of the offense in question to a
third party. As perpetrators try to obscure such asset flows, it is often difficult to
supply the necessary evidence. Similar scenarios are particularly prone to prob-
lems with the requesting jurisdiction not furnishing sufficient information about
the facts of the case.
4.4 DIFFICULTIES STEMMING FROM LACK OF
NON-CONVICTION-BASED (NCB) PROCEDURES
Lack of adoption of NCB-related confiscation regimes can hamper action by
countries on direct enforcement issues in at least two ways.
First, when the requesting jurisdiction has not obtained a confiscation order
and indirect enforcement is the only alternative for having the request executed
abroad, some requested jurisdictions may be able to proceed only by NCB con-
fiscation. That is the case of countries such as the United States where the in
absentia prosecution of the alleged perpetrator is excluded, and, hence, no pos-
sibility exists of obtaining a domestic criminal confiscation judgment.
Second, significant obstacles may be encountered by those jurisdictions seek-
ing to have their NCB orders directly enforced abroad owing to the absence of
comparable legislation on NCB proceedings in requested jurisdictions.
Countries such as Australia and the United States indicated that whereas
NCB procedures are in many cases essential and increasingly used domestically,
especially in internet fraud cases, there are many jurisdictions where this
authority still does not exist despite several international instruments encourag-
ing countries to adopt NCB models.
4.5 LACK OF UNDERSTANDING OF FOREIGN PROCEDURES
Differences in legal systems, terminologies, and procedures are at the root of mis-
understandings and hindrances in the direct enforcement of foreign confiscation
orders. For example, an order that would be described as a “pecuniary penalty
order” in some jurisdictions is defined as a “forfeiture order” in others. Also, the
Arab Republic of Egypt mentions the refusal by some countries to enforce its
“restitution orders” on mere terminological grounds as, under Egyptian law,
“restitution” has the same meaning and objectives as “confiscation.”
At the same time, this type of difficulty does not appear to be exclusively
related to the execution of foreign asset confiscation orders, but rather to the
60 | Orders without Borders
understanding and execution of MLA requests in general. Further, there is broad
recognition that these challenges are more pronounced in the relationship
between civil and common law countries.
4.6 COMPETING REQUESTS FROM DIFFERENT
JURISDICTIONS
When there are competing requests from different jurisdictions, enforcement is
not possible unless it is clear who the recipient of the assets in question is.
Singapore experienced a similar scenario. After the registration of a foreign
confiscation order through a direct enforcement mechanism, competing claims
left matters in a state of limbo; neither of the two competing jurisdictions pro-
vided the necessary information or instructions for Singapore to enforce and
repatriate the confiscated property. A receiver cannot be appointed to hold onto
assets indefinitely.
4.7 RESOURCE CONSTRAINTS IN REQUESTED
JURISDICTIONS
Resource constraints in requested jurisdictions may lead to requests for direct
enforcement action not being processed with the necessary speed.
Because of limited financial and human resources in the authorities (for
example, the central authority or asset recovery offices), and given the number
of incoming requests involving both asset recovery and non-asset-recovery mat-
ters, priority often has to be given to the most urgent cases. The speed at which
a formal request will be enforced may also be delayed by factors such as (a) the
seriousness of the offense in question, (b) the net value of the involved assets,
(c) the stage of the investigation in the requesting jurisdiction (for example,
whether indictments or charges are immediately forthcoming), and (d) the per-
ceived effect of the case on the public interest.10
4.8 DIFFERENCES IN LEGAL SYSTEMS AND PROCEDURES
Differences across legal systems represent a significant source of friction.
Typically, this occurs in countries that are unable to enforce foreign confiscation
orders where the underlying conduct is not an indictable offense in their own
legal system.11
Sometimes, the discrepancies between requesting and requested jurisdic-
tions touch on the fundamental principles of their respective legal systems.
Jurisdictions requiring that the foreign order be issued by a judicial authority
face major issues.12 Accordingly, some jurisdictions13 report their inability to
directly enforce orders issued by senior law enforcement officers in requesting
countries. Similarly, due process requirements mean that some jurisdictions are
unable to directly enforce provisional measures issued by prosecutors.
Some jurisdictions do not directly enforce foreign confiscation orders
handed down in proceedings in absentia.14 Concerns have also been expressed
about the enforcement of foreign orders based on illicit enrichment offenses.
Challenges and Obstacles to Direct Enforcement Action | 61
Case Study 4.4: Switzerland’s evidentiary challenges with common law
countries
Switzerland reports major obstacles in having its seek to reduce the evidentiary burden by way of leg-
provisional measures enforced by common law juris- islative action, in practice any such move would have
dictions. Although these jurisdictions apply a lower little chances of succeeding because it would require
evidentiary threshold than the one needed to obtain overcoming complex issues of constitutional
a criminal conviction, they still require a “reasonable relevance.
suspicion or reasonable ground to believe” threshold, Swiss experts interviewed for this study report
which remains a much higher one than the one used that only in a few common law jurisdictions do Swiss
in Switzerland. Accordingly, Swiss prosecutors face provisional orders seem to be enforceable (current
insurmountable obstacles in gathering enough infor- cases known include Grand Cayman and Australia).
mation at the beginning of a criminal proceeding to As a rule, these orders need to be confirmed regularly,
be able to submit an asset-freezing request comply- with the requesting jurisdictions asked to present
ing with the threshold set in most common law juris- increasing amounts of evidence to keep the orders
dictions. Although such jurisdictions may in theory in place.
A provisional or confiscation order obtained through such procedures may not
be directly enforceable under a number of domestic laws (notably, in the United
States) owing to the shift of the burden of proof from the prosecutorial authority
to the holder of the property.15
The civil law and common law divide represents a major source of “incom-
municability” between requested and requesting jurisdictions. In this regard, it
appears significantly more challenging for civil law countries to comply with
legal thresholds and requirements set by common law countries than the other
way around.
4.9 SLOW AND TIME-CONSUMING CONFISCATION
PROCEEDINGS IN REQUESTING JURISDICTIONS
Several jurisdictions reported instances where orders providing registration for
foreign provisional orders had to be revoked or discontinued because requesting
jurisdictions would not secure the final confiscation measure within an accept-
able amount of time.16
Switzerland and the United States mention a few cases in which restraint
orders had to be lifted after waiting several years (in certain cases more than 10)
for the corresponding confiscation measure to be issued or not. In the United
States, in particular, although there is no statutory time limit, more than
20 foreign provisional orders have been enforced over the past seven or eight
years, including in corruption-related cases. Of these, however, only four final
confiscation orders have been received for enforcement purposes because of the
slow pace of the foreign criminal proceedings. Swiss courts would also lift provi-
sional measures if the requesting state is not seen as advancing swiftly enough
with the criminal proceeding.
62 | Orders without Borders
Case Study 4.5: Singapore’s experience with foreign authorities going “cold”
Jurisdiction A made a mutual legal assistance (MLA) responsive to Singapore’s requests for information
request to Singapore for the seizure of funds, alleged needed to maintain the seizure and update on the sta-
to be proceeds of corruption, in an account kept with a tus of confiscation or criminal proceedings in the
fund management company, with a view to subse- requesting country. In April 2019, after more than one
quent repatriation of the funds. As Singapore law and a half years since having secured the assets,
enforcement authorities had simultaneously been Singapore still had no information from the request-
alerted by their foreign law enforcement counterparts ing jurisdiction, despite regular follow-ups and even a
of the illicit fund flows, the account was seized under face-to-face meeting on whether any criminal pro-
domestic investigations shortly before the MLA ceedings or confiscation proceedings had begun.
request was even received. This situation has been experienced in numerous
However, since the domestic seizure of the funds, other cases where authorities go “cold” after assets have
the authorities of the requesting country became less been restrained on a temporary and urgent basis.
4.10 BURDENS FOR REQUESTED JURISDICTIONS IN
MAINTAINING TEMPORARY MEASURES ON PERISHABLE
OR HIGH-COST ITEMS
A significant challenge for requested jurisdictions lies in the costs of maintain-
ing assets (other than cash) frozen or seized for long periods. Such expenses may
easily go well beyond the anticipated costs of executing a standard MLA request.
Depending on the type of assets to be restrained (for example, real estate, yachts,
art requiring temperature-controlled or secure conditions, live animals, and
highly speculative investments), their value can significantly diminish over
time. Additionally, major expenses may have to be incurred with the manage-
ment of property (for example, state property taxes; insurance against fire,
flooding, or theft; appropriate security to prevent theft and damage; property
maintenance that often includes grass cutting, swimming pool maintenance,
maintaining electricity and air-conditioning without which mold grows and
interiors deteriorate; berthing charges for yachts; and storage and engine main-
tenance charges for planes, high performance cars and yachts, and so forth).
4.11 LENGTHY PROCESSES IN THE REQUESTED
JURISDICTION TO DETERMINE WHETHER THE
CONDITIONS FOR DIRECT ENFORCEMENT HAVE
BEEN FULFILLED
Whereas direct enforcement procedures ensure that the merits of the case are
not relitigated before requested jurisdictions, those jurisdictions may still need
to establish that a series of conditions are fulfilled before enforcing the foreign
order. Potentially lengthy processes may cause significant delays. Some circum-
stances may be easier and more straightforward to establish than others, for
example, that the court in the requesting country had jurisdiction, or that the
confiscation order is not subject to appeal. Other facts may be more difficult to
establish as they entail more subjective types of evaluations. For example, it may
Challenges and Obstacles to Direct Enforcement Action | 63
Case Study 4.6: The Lucy case in the United States: corruption and the illegal
wildlife trade
The Lucy case is an example of the US government in addition, the time needed to obtain a foreign final
directly enforcing a foreign provisional restraint order of forfeiture from Brazil was estimated to be
order against proceeds of corruption, namely seven excessively long and the cost of maintaining the off-
offspring of a rare snake smuggled from Brazil into spring in appropriate conditions too high. Therefore,
the United States by US citizens and linked to brib- a domestic action was brought that led to the
ery of an official who had custody of the animals. snakes being criminally forfeited from the own-
The United States could assert its jurisdiction over ers in the United States and returned to Brazil by
some of the defendants and the assets involved; plane.
Source: Enforcement of a Seizure order by the 2nd Federal Criminal Court of Justice in the State of Roraima, The Federative Republic of
Brazil to seize Brazilian Boa Constrictor “Lucy,” and its offspring located in Utah or elsewhere in the U.S., no. 1:13-mc-00926 (D.D.C.).
not always be straightforward to determine if the foreign confiscation order is
final in relation to an asset where the codefendants are appealing other aspects
of the same order. Also, determining whether the foreign court was impartial or
independent, as some countries require, could open up debates and lengthy liti-
gation before the courts in requested jurisdictions. In similar scenarios, the risk
is that the time advantages gained from implementing direct enforcement
models may be lost if authorities in requested jurisdictions spend a long time
assessing certain facts. Germany, for example, emphasized the time-consuming
nature of examining the admissibility of foreign confiscation orders through its
exequatur procedure. Similar remarks are made by Brazilian experts, mention-
ing the time needed by its Supreme Court to perform the homologation of
foreign decisions.
Moreover, according to interviewed practitioners from Spain, major chal-
lenges are posed by noncooperative jurisdictions. In their experience, MLA
requests sent to those countries are not always formally rejected, but their exe-
cution subjected to the receipt of additional unnecessary information. Thus, in
practice, making the request is useless as investigative deadlines often expire
before the necessary pieces of evidence are obtained.
4.12 CONFISCATION ORDERS CONTAINED IN LONG
AND BULKY DOCUMENTS
Some requested jurisdictions face problems in directly enforcing foreign orders
that are contained in long and bulky documents. In some cases, those orders are
basically lengthy transcripts of the investigation. This leads to significant delays
in courts’ determination as to whether the foreign order shall be enforced.
The problem appears to be even more acute in foreign orders sent in languages
others than the requested jurisdiction’s official one. When the request is not
immediately rejected, the foreign order requires expensive translation, which in
turn extends the time needed by the competent authorities to determine if the
request should be processed further. Also, a lengthy foreign order requires more
time of the requested country’s court to decide whether to enforce it.
64 | Orders without Borders
4.13 CONDITIONALITY PLACED ON THE DIRECT
ENFORCEMENT OF FOREIGN CONFISCATION ORDERS
In some cases, the potential of direct enforcement as a channel for speedy and
effective asset recovery may be hampered by conditions posed by some requested
jurisdictions that property be returned to a specific fund in the requesting
jurisdiction distinct from the general treasury of the state. This form of
conditionality is considered by some countries17 as difficult to implement by
requesting jurisdictions and unfairly impacts their sovereign prerogatives as
protected by article 4 of UNCAC.
4.14 TAKEAWAYS
• Although use of direct enforcement proceedings hold the potential for deliv-
ering fast and effective assistance in international asset recovery operations,
this study reveals that their usefulness may be impacted by drawbacks and
inefficiencies generally affecting international judicial cooperation in crimi-
nal matters.
• To make the most of direct enforcement mechanisms and to limit the effect of
differences in legal systems and procedures across jurisdictions (for example,
between civil law and common law countries), the following are important to
do: (a) engage in enhanced pre-MLA communication through informal con-
sultations among practitioners from requesting and requested jurisdictions;
(b) proactively exchange information and best practices through asset recov-
ery informal networks such as Camden Assets Recovery Inter-Agency
Network; and (c) leverage existing institutional arrangements, such as liaison
magistrates, to help initiate or advance direct enforcement action. See
Recommendations 5.2.5 and 5.2.6 in this study.
• Countries would benefit from developing special knowledge and training
that covers features and challenges of enforcing foreign orders. For example,
such training would benefit MLA central authorities, judicial authorities in
charge of the recognition of foreign orders, and asset recovery managers.
Countries should also consider assigning one or more authority officials to
specifically support the enforcement of foreign requests for asset restraint
and confiscation. See Recommendation 5.2.9 of this study.
• Including specific deadlines for handling incoming requests may incentivize
requested jurisdictions to take speedy action. This may be further facilitated
through ending ad hoc arrangements whereby the requested and the
requesting jurisdictions agree on mutually acceptable deadlines for
requesting execution. See Recommendation 5.1.6 of this study.
• Countries’ ability to directly enforce foreign orders should not be hampered
by the narrow definition of key terms. A terminology-neutral approach
contributes to avoiding situations where formal differences in how basic
concepts are denominated across jurisdictions lead to execution delays or
nonexecution altogether. See Recommendation 5.1.4 of this study.
• To further speed and facilitate request examination, courts in requesting
jurisdictions could reduce the length of documents containing orders for con-
fiscation or provisional measures to be enforced abroad. See Recommendation
5.2.7 of this study.
Challenges and Obstacles to Direct Enforcement Action | 65
• The need for requested jurisdictions to manage frozen or seized property for
a long time on behalf of a foreign country—pending the adoption of a final
confiscation order by the requesting jurisdiction—may represent a significant
financial and logistical burden for requested jurisdictions. To avoid friction as
well as the risk that requested jurisdictions cancel the provisional measures
ahead of time, countries should seek to enter into adequate cost-sharing
arrangements whenever they expect delicate scenarios. See Recommendation
5.2.8 of this study.
• Several countries appear to have not properly regulated situations where fro-
zen assets lose value as time elapses, the assets in question are perishable, or
their custody highly expensive. In relation to such assets, countries may con-
sider resorting to interlocutory or anticipated sales. See Recommendation
5.1.12 of this study.
NOTES
1. Canada, for example, mentions the absence of an agreement with requesting countries (as
required by its MLA legislation) as the most prevalent reason for rejecting incoming
requests for asset freezing, seizure, or confiscation.
2. For example, the Paris region, the French Riviera, and the Alps.
3. Between 2006 and 2017, South Africa received six foreign requests for either asset restraint
or confiscation.
4. In the opinion of the Canadian experts, this area of MLA is in a state of infancy, with the
jurisprudence still being developed, as evidenced by the fact that only in 2018 was the first
appellate-level decision handed down dealing with the provisions of the Mutual Legal
Assistance in Criminal Matters Act (see Georgiou, Case Study 5 in this study).
5. Whereas searches in the name of the defendant are rarely effective, recent legislative
changes in disclosures of beneficial ownership information are improving US investigators’
ability to track assets.
6. According to experts from a surveyed country, several foreign authorities do not execute
requests for freezing and seizing property, with most queries related to the establishment
of the link between the property in question and the proceeds of crime.
7. For example, the United States.
8. Australia and South Africa.
9. Germany.
10. United States.
11. For example, Canada.
12. In UNCAC requirements, however, only the direct enforcement of confiscation orders
issued by courts is required (arts. 54.1(a) and 55.1(b)). If States Parties decide to submit, for
enforcement purposes, orders issued by a competent authority that is not a court, requested
States have the option to enforce them directly or indirectly (arts. 54.1(a) and 55.2).
13. For example, United States and New Zealand. Australia also faces this hurdle with respect
to foreign confiscation orders that are not made by a court or equivalent judicial authority.
However, owing to a relatively recent amendment, a foreign restraining order needs only to
be made under a law of the foreign country (whether or not by a court).
14. According to interviewed US practitioners, the fact that the scope for in absentia criminal
proceedings in US law is much more limited than in many other countries explains why
NCB proceedings are extensively relied upon, including in grand corruption cases.
15. In some jurisdictions, the enforcement of confiscation orders based on illicit enrichment
may be precluded by the lack of dual criminality.
16. For example, Italy.
17. Arab Republic of Egypt, Lebanon, and Nigeria.
5 Recommendations
The recommendations outlined in this chapter are derived from the best
available data as well as responses to questionnaires received by surveyed
countries. More data may provide grounds for additional or more extensive
sets of recommendations.
5.1 ESTABLISHING AND ENHANCING LEGAL FRAMEWORKS
5.1.1 Determine the extent to which the United Nations
Convention against Corruption (UNCAC) or other treaty
requirements on the direct enforcement of foreign confiscation
orders need to be domesticated
In implementing relevant articles of UNCAC and other treaties, each state
follows its own procedures. These are often found in constitutional provisions
and determine how norms of international law are incorporated into domestic
legal systems. In this regard, so-called dualist countries need to invariably adopt
implementing legislation. The situation is, at least in principle, different for
monist countries, for which norms of duly ratified treaties are normally consid-
ered an integral part of domestic legal systems. Thus, in theory, monist countries
are in a position to use treaty-based asset confiscation provisions without pass-
ing an implementing act. In practice, however, implementing several treaty
norms in monist countries also requires enacting legislation, notably when such
norms are not self-executing.1
A typical example of non-self-executing provisions are UNCAC articles dealing
with the enforcement of foreign confiscation orders. Whereas it outlines an obli-
gation for States Parties to introduce a direct enforcement mechanism, UNCAC
leaves countries in charge of determining the applicable procedure. As a result, it
appears that even monist countries cannot argue that they can comply with the
relevant articles of UNCAC only by virtue of their having ratified or adhered to it.
Thus, countries are encouraged to determine the extent to which legislative
action may be needed to ensure that requirements of the UNCAC—or another
treaty framework—on the direct enforcement of foreign confiscation orders are
effectively implemented in domestic mutual legal assistance (MLA) proceedings.
67
68 | Orders without Borders
5.1.2 Introduce the possibility to directly enforce foreign
confiscation orders
To comply with article 54(1)(a) of UNCAC, jurisdictions shall establish domestic
proceedings enabling the direct enforcement of foreign confiscation orders.
From a practical perspective, direct enforcement offers the most significant
potential for a swifter and more streamlined handling of asset recovery requests
than is possible under indirect enforcement models. Under direct enforcement,
requested jurisdictions are able to subject the registration of foreign orders to
the fulfilment of a number of conditions (for example, that the foreign order is
final, that the rights of the defense were duly respected in the requesting juris-
diction). The main reason for this greater efficiency is that under a direct
enforcement model the case is not open to relitigation on its merits before the
authorities of the requested jurisdiction. Reducing time between the moment
when MLA requests for asset confiscation are received and their execution,
whereas still maintaining respect for important due process principles, is a key
factor to minimize the chances of tainted assets changing owners and locations
and thus hampering the ability to trace them.
When introducing new legal frameworks allowing for the direct enforcement
of foreign restraint and confiscation orders, jurisdictions should take into
account that the scope of the enforcement action does not necessarily corre-
spond to what is available under domestic proceedings.2
5.1.3 Ensure that procedures to directly enforce foreign
confiscation orders do not entail the relitigation of
the merits of the case
National authorities in requested jurisdictions should be bound by the findings
related to the facts of the case as they are stated in the foreign request. This
means, in practice, they should avoid making any fresh evaluation of the merits
of the case. If the merits have already been tried in the requesting jurisdiction, it
would be time consuming and counterproductive to reassess the same facts
twice. From this point of view, direct enforcement models are predicated on a
degree of trust in foreign authorities’ decisions.
In the second cycle of UNCAC’s Implementation Review Mechanism, the
principle that the merits of the case should not be relitigated before the author-
ities of the requested jurisdiction is being upheld by government experts while
reviewing the implementation of article 54(1)(a).
Additionally, a number of treaties dealing with the same subject matter con-
sider this principle as a key requirement. A good example is article 24(2) of the
2005 Warsaw Convention. Identical wording is found in article 42 of the
European Convention on the International Validity of Criminal Judgments.
The explicit inclusion of a similar provision in domestic legal frameworks
seems particularly appropriate in that it removes any potential ambiguity or
interpretative doubt as to the extent of requested jurisdictions’ scrutiny of for-
eign orders, thus upholding a key advantage of direct enforcement over indirect
enforcement models. In this regard, some interviewed practitioners have
expressed concerns about the risk that, in the absence of any explicit guidance,
the competent authorities in requested jurisdictions may tend to assess the mer-
its of the case before them.
Recommendations | 69
5.1.4 Define key terms broadly and adopt a terminology-neutral
approach
Jurisdictions’ abilities to directly enforce foreign orders should not be hampered
by the narrow definition of key terms. For example, under Singaporean law, “for-
eign confiscation order” is defined broadly with reference to an order, decree,
direction, judgment, or any part thereof, however described. Similarly, Peru’s
legal framework refers to the enforceability of foreign confiscation orders or
similar legal arrangements.
Generally speaking, a terminology-neutral approach helps to avoid situations
where formal differences in how basic concepts are denominated across juris-
dictions lead to the nonexecution of foreign requests.
5.1.5 Enable direct enforcement action across a broad range of
criminal offenses
The implementation of UNCAC requirements on direct enforcement in some
States Parties may be facilitated by existing legislation already in place under
other bilateral, regional, and multilateral treaties containing similar or identi-
cal requirements. In some cases, authorities and procedures that have already
been established at the national level to generally enforce foreign confiscation
orders will automatically serve the purpose of implementing UNCAC require-
ments. In other cases, however, relevant procedures and authorities may have
been established for specific crime categories (for example, money launder-
ing) or treaty-based offenses. In such cases, it will be necessary to examine the
extent to which those procedures and authorities need to be extended to
ensure coverage of all UNCAC offenses. For example, if countries decide to use
anti-money-laundering legislation, they should ensure that the scope of this
legislation allows the direct enforcement of foreign orders beyond proceeds of
money-laundering offenses.
Ideally, domestic legal frameworks will allow for direct enforcement to be
taken in relation to a broad range of criminal offenses. Countries may thus adopt
a single national framework ensuring, for example, that they can directly enforce
foreign confiscation orders concerning offenses identified by a minimum level of
punishment.
It seems particularly important to avoid a situation where different proce-
dures or authorities come into play depending on whether the foreign request
concerns proceeds of corruption or other offenses. A fragmented approach is
likely to create confusion, increase the risk of interpretative doubts and inconsis-
tencies, and make it difficult for requesting jurisdictions to determine which
channels and procedures to follow in submitting the request.
5.1.6 Include time frames when processing foreign requests via
direct enforcement
Including specific time frames (through legislation, MLA guidelines, or other
administrative instruments) for handling requests aimed at the direct enforce-
ment of foreign confiscation orders may further speed the process. Also, it pro-
vides the requesting jurisdiction with a reliable indication of the time needed for
its request to be processed. In Latvia, for example, requests dealing with the rec-
ognition of foreign decisions are initially handled by the minister of justice who,
70 | Orders without Borders
after verifying that all the necessary materials have been received, shall within
10 days (or 30 days if the amount of materials is particularly large) send them to
a district or city court for decision making.3
At the same time, decisions to set specific time frames through normative
instruments should be realistic, bearing in mind the requested jurisdiction’s
available resources and its concrete ability to handle foreign requests within the
set deadlines. Ideally, failure to meet such deadlines should trigger an obligation
by the requested jurisdiction to automatically revert to the requesting one,
explaining the reasons for the delay and setting new time frames.
Even if deadlines are not set by a normative instrument, direct enforcement
action may be further facilitated through ad hoc arrangements where requesting
and requested jurisdictions negotiate and agree on mutually accepted time
frames for request execution purposes. For example, while the requested juris-
diction may indicate that execution would not be easily achieved before a certain
date, the requesting jurisdiction may put forward specific time lines linked to the
need to comply with a time-barred domestic investigation.
5.1.7 Specify modalities for affected parties’ intervention in
direct enforcement procedures
Jurisdictions introducing or updating direct enforcement procedures are
encouraged to ensure that affected parties shall be notified about an application
to register foreign orders and how they can intervene in related proceedings.
Although general provisions that can be applied to domestic orders might be
applicable once the necessary changes have been made, it might be useful to
provide clarity on this matter, especially in countries when direct enforcement
procedures are not frequently used or where there are limited opportunities to
rely on previous practice and precedents.
Moreover, jurisdictions are invited to consider issuing regulations to ensure
that applications for court orders to register foreign freezing and seizing orders
can be made ex parte (that is, without notice being given to the affected party).
Among surveyed jurisdictions, only a few countries have this requirement
explicitly spelled out in their direct enforcement legislation.4
5.1.8 Provide for the possibility to confiscate property upon the
request of a foreign party (indirect enforcement)
Whereas UNCAC States Parties shall be in a position to recognize and directly
enforce foreign confiscation orders stemming from conviction-based proceed-
ings,5 they also need to be able to execute requests that are not accompanied by
a confiscation order or where the foreign order is not deemed recognizable. In
such cases, they should be able to resort to indirect enforcement through the
institution of new domestic confiscation proceedings. In some cases, the indirect
enforcement option (for example, the adoption of a domestic confiscation order
to execute the foreign request) may be the only possible course of action. For
example, a country may seek the enforcement of a confiscation order against a
legal person registered in another country that does not recognize the criminal
liability of legal persons. In a similar scenario and to execute the request, the
requested jurisdiction may need to establish a new proceeding for identifying
the individuals against which to enforce the foreign order (Commonwealth
Secretariat 2011, 234).
Recommendations | 71
Also, nothing prevents a jurisdiction from requesting the direct enforcement
of a confiscation order in relation to certain property and request that indirect
action be taken in relation to other property, even when the underlying offense
is the same. This path may be useful when property has been substituted, third-
party interests are involved, or where the request concerns indirectly derived
proceeds or licitly acquired property intermingled with illicitly acquired
property.6
5.1.9 Consider introducing the possibility to directly enforce
foreign freezing and seizing orders
Jurisdictions that are not in a position to directly enforce freezing and seizing
orders are encouraged to consider this possibility. When such orders are no lon-
ger subject to appeals in the requesting jurisdiction, their direct enforcement
provides the same advantages observed for confiscation. Notably, the requested
jurisdiction would not need to institute a domestic proceeding for the purpose of
adopting a domestic freezing and seizing order based on the relitigation of the
case on its merits.
5.1.10 Ensure that foreign restraint orders can be directly
enforced even when they are adopted at very early stages of a
proceeding
Countries are encouraged to ensure that they can directly enforce foreign
freezing and seizing orders (when this option is available in their domestic
legislation) irrespective of the stage of the criminal proceeding in the request-
ing jurisdiction when the order has been issued (for example, even before the
person under investigation has been officially charged with an offense). It is
critical that measures be taken at the earliest possible stage to secure the assets
that may become subject to a confiscation (Brun and others 2021, 75). If this
option is not available domestically, countries may wish to consider introduc-
ing it in their domestic legislation.
5.1.11 When domestic restraint orders are issued by non-judicial
bodies, consider subjecting them to judicial review for purposes
of asset recovery abroad
Some jurisdictions, especially those belonging to the common law legal tradi-
tion, face challenges in directly enforcing foreign restraint orders that have not
been issued by a court. This is sometimes the case in orders issued by law
enforcement officials or prosecutors in civil law jurisdictions.7 In the United
States, for example, the fact that restraint orders have been issued by a neutral
fact-finding body in the requesting jurisdiction is central.
To mitigate the risk of having the request rejected on grounds that the foreign
order was not issued by a judicial authority, requested jurisdictions may initiate
their own cases based on evidence provided by the country seeking asset
restraint. However, this route may not always be possible or warranted.
Requested jurisdictions may be committing extensive resources by bringing
their own case rather than using direct enforcement. In the United States, for
example, the types of possible challenges that can be raised in a direct enforce-
ment action are severely limited compared with the issues that can be raised by
claimants under other domestic authorities.
72 | Orders without Borders
Another possibility is for requesting jurisdictions (where restraint orders can
be issued by nonjudicial bodies) to provide that, for the purpose of ensuring their
enforcement abroad, those orders be specifically subject to judicial review. Such
a step was taken by Colombia in 2017, when the national forfeiture law was
amended with the addition of a new provision addressing “Precautionary
Measures for Property Abroad.” The new law now enables “the Office of the
Attorney General to request the competent authority of the cooperating country
to execute precautionary measures on property overseas subject to asset forfei-
ture. These measures will be submitted to the corresponding judicial review
before the asset forfeiture judges in order that they have full legal effect in the
foreign country.” 8
5.1.12 Consider using interlocutory or anticipated sales for
seized perishable or high-cost items
Interlocutory or anticipated sales may be usefully employed to address chal-
lenges linked to perishable or high-cost items. According to interviewed practi-
tioners, these should be considered key tools to ensure that asset recovery
processes, including through MLA, are managed as effectively as possible. And
yet, several countries appear to have not properly regulated situations where
frozen assets lose value as time elapses, the assets in question are perishable, or
their custody highly expensive. In the United States, interlocutory sales are usu-
ally granted by courts in unavoidable situations where seized assets are perish-
able or susceptible to deterioration. However, asset management authorities
may not be able to obtain permission to conduct interlocutory sales of assets held
under a foreign or domestic provisional order until it can be shown that the
property in question is not being maintained adequately, thereby causing its
depreciation and leading to costs for the government.
5.2 EFFECTIVELY APPLYING EXISTING LEGAL FRAMEWORKS
5.2.1 Take advantage of the UNCAC implementation review
mechanism to obtain guidance and inspiration for the adoption
of direct enforcement mechanisms
In drafting or amending legislation dealing with direct enforcement, jurisdic-
tions may consider statutes from countries that already have good experience in
this area. Also, jurisdictions that already have experience in direct enforcement
action are encouraged to share good practices and challenges with those that are
in the process of legislating for the first time. A valuable forum to facilitate such
exchanges is the Conference of the States Parties (CoSP) to the UNCAC and its
subsidiary bodies, notably the Working Group on Asset Recovery and the
Implementation Review Group (IRG). Both settings offer valuable platforms for
countries to discuss their actual or potential engagement on matters of directly
enforcing foreign freezing or confiscation orders.
Through the IRG and particularly since the start of the second review cycle
that focuses on implementing chapter V of the Convention (Asset Recovery),
jurisdictions that want to introduce a direct enforcement model in their legisla-
tion are encouraged to use avenues created for discussion and exchange of prac-
tices, whether in the role of a reviewing or a reviewed country.9
Recommendations | 73
5.2.2 To the extent possible, leverage general legal frameworks
on the recognition of foreign judgments
Absent a specific legal framework allowing them to directly enforce foreign con-
fiscation orders, jurisdictions may consider the extent they can apply legal
framework dealing with recognizing foreign judgments. Reliance on available
mechanisms may sometimes ensure that MLA requests for confiscation retain a
reasonable chance to be executed swiftly.
For example, Brazil applies a procedure of homologation of final foreign deci-
sions and granting exequatur to letters rogatory. Under this procedure, which
has constitutional coverage, the country’s Superior Court of Justice carries out a
preliminary analysis of the foreign decision and issues an act of authorization.10
Also, some jurisdictions are parties to the 1970 European Convention on the
International Validity of Criminal Judgments. Whereas this framework was not
specifically designed to deal with the recognition of foreign confiscation orders,
it offers a procedural framework for jurisdictions lacking a dedicated legal ave-
nue in this area. With currently 23 States Parties, the 1970 Convention’s scope of
application extends to European criminal judgments, which are defined as “any
final decision delivered by a criminal court of a Contracting State as a result of
criminal proceeding.”11 According to article 2 of the 1970 European Convention,
this includes not only sanctions involving deprivation of liberty, but also “fines or
confiscation.”
The general approach followed by the 1970 European Convention is to require
States Parties to enforce, upon request, foreign judgments issued by other States
Parties, unless the case meets one of the grounds for refusal explicitly men-
tioned. In addition to general provisions, the 1970 European Convention con-
tains “clauses relating specifically to enforcement of fines and confiscations.”
These clauses deal with technical issues such as the conversion of the amounts
into the currency of the requested state in case of foreign confiscation orders for
payment of money, the confiscation of specific objects, and so forth.
5.2.3 When direct enforcement is only possible via crime-
specific statutes, to the extent possible apply them
by analogy to other crime areas
When direct enforcement procedures are exclusively set forth in
anti-money-laundering laws, jurisdictions should explore, within the limits of
the principles of their legal system, whether these procedures are applicable
to cases in which property mentioned in foreign restraint or confiscation
orders are not proceeds of money-laundering offenses. If this is not feasible,
new legislation should be considered to ensure that foreign confiscation
orders can be directly enforced beyond the boundaries of money-laundering
legal frameworks.
5.2.4 If foreign orders cannot be directly enforced, to the
extent possible assist the requesting jurisdiction through other
avenues
A common reason for rejecting an MLA request to enforce a foreign order is that
assets are no longer available for restraint or confiscation. In those cases,
requested jurisdictions may be able to provide information to requesting ones
74 | Orders without Borders
about the new suspected location of those assets. This could help the formula-
tion of new requests for asset tracing and restraint to be addressed to the juris-
diction where the assets have been presumably moved.
An alternative, though more onerous approach, is for requested parties, if
they have jurisdiction, to open their own cases, issue domestic confiscation
orders, and request their enforcement by the country where the assets have been
presumably transferred. This approach could be a way for well-resourced juris-
dictions to help developing jurisdictions recover stolen assets. Establishing par-
allel proceedings by requested jurisdictions may be useful in cases where
executing an MLA request poses insurmountable challenges. To ensure that
establishing parallel proceedings is done in the most effective way, the sponta-
neous transmission of information across jurisdictions may be critical. Consider
setting up joint investigative teams as a key enabler.
5.2.5 Work toward enhanced pre-MLA communication
Early consultations between MLA central authorities of the requesting and the
requested jurisdictions invariably enhance the effective and timely enforcement
of foreign restraint or confiscation orders. Consultations of this nature before
the lodging of an official MLA request ensure that any eventual request con-
forms with what is legally possible in the requested jurisdiction under its domes-
tic laws.
The need to open and sustain effective communications between requesting
and requested jurisdictions is especially recognized in asset recovery cases. Such
cases often present specific technical and terminological difficulties, in particu-
lar in direct enforcement action, with which various countries are still
unfamiliar.
Also, by relying on pre-MLA communication networks (for example, through
police, financial intelligence units, and asset recovery offices) practitioners from
requesting jurisdictions can often obtain key knowledge that will significantly
increase the chances of their subsequent MLA request being promptly executed.
For example, they can first check whether another jurisdiction has the ability to
enforce a certain type of order.12 This includes whether a criminal or non-
conviction-based (NCB) order could be executed in the foreign jurisdiction.
Additionally, developing CARIN-styled asset recovery informal networks13 may
help requesting jurisdictions have a better understanding of competent authori-
ties in foreign countries and of how foreign legal systems work. They may also
help requesting jurisdictions confirm issues such as the continued ownership of
real property or the existence of bank accounts, and so forth.
More generally and holistically, CARIN-style regional bodies may further
develop their role beyond platforms for simple information exchange into net-
works and conduits where countries proactively collaborate and look for
enforcement opportunities under the principles of confidence and trust.
Developing informal relationships among practitioners is also key for request-
ing essential information from jurisdictions, such as on the evidentiary thresh-
olds needed for the enforcement of required measures. 14 Some countries
mentioned the importance of forging links among central authorities during
workshops or expert groups meetings, which could then lead to the develop-
ment of personal contacts by email or telephone.15 Notably, the establishment of
personal connections with foreign counterparts can help reduce delays, particu-
larly where differences in legal systems and traditions carry higher risks of
Recommendations | 75
misunderstandings. Direct and personal connections contribute to build trust
among involved parties.
The newly established Global Operational Network of Anti-Corruption
Law Enforcement Authorities supported by UNODC could also become
instrumental in improving informal consultations among practitioners in
this area.16
Overall, MLA requests are best relied upon after a preliminary investigation
and informal information gathering has occurred. At the initial stages of an
investigation, basic financial information might be provided informally, without
the need to invest time and resources in drafting, translating, and submitting a
formal MLA request.17
5.2.6 Leverage existing institutional arrangements, such
as liaison magistrates, to help initiate or advance direct
enforcement action
A country exchange of liaison magistrates is typically done to increase the speed
and effectiveness of judicial cooperation and to facilitate the mutual understand-
ing of procedures. An exchange’s usefulness has been widely recognized in
(a) activating direct lines of communication between national central authori-
ties, (b) following up on formal MLA requests, and (c) providing legal and prac-
tical advice to authorities of the country of deployment.
In deploying new liaison magistrates, jurisdictions should ensure that posted
officials are familiar with asset recovery processes, in particular with (a) facili-
tating the mutual recognition of foreign restraint and confiscation orders by
jurisdictions that adopt a direct enforcement model and (b) actively promoting
the adoption or use of direct enforcement models before the competent
authorities.
Inspiration may be drawn from the ongoing UNODC’s PROMIS project
(UNODC 2019) aimed to support the deployment of Nigerian liaison prosecutors
to Italy and Spain with a view to establishing direct channels of communications
between these countries and more effectively handle MLA requests about smug-
gling of migrants. Similar multicountry initiatives may be encouraged to ensure
that posted magistrates are trained in MLA for asset recovery and that such
actions are prioritized.
5.2.7 Reduce the length of documents containing orders for
confiscation or provisional measures
For the purpose of swifter and less expensive examinations in requested juris-
dictions, courts in requesting jurisdictions could enter more succinct provisional
and confiscation orders, thereby limiting the explanatory part to the essential
and necessary procedural history, factual findings, and legal conclusions. More
detailed information is in the appendixes.
5.2.8 Consider cost-sharing arrangements and other cost-
effective solutions for the management of assets subject to
provisional measures
A frequently reported problem stems from where foreign assets, once swiftly
restrained through direct enforcement action, remain subject to provisional
76 | Orders without Borders
measures for a long time pending the adoption of a final confiscation order in
requesting jurisdictions. Such scenarios create high costs (for example, for stor-
age, security, special maintenance) that are associated with preserving the prop-
erty in the interest of requesting countries.
From the requesting jurisdictions, the time gap between the adoption of pro-
visional orders and final confiscation depends on multiple factors dealing with
the specific circumstance of each case and the structure and general effective-
ness of their justice systems. Whereas the authorities of requesting jurisdictions
that initially requested (and obtained) the provisional measure may not have
control of the timing for the issuance of the final confiscation order, they should
at least provide regular updates to requested jurisdictions as to the expected or
likely evolution of the investigation or judicial proceeding.
Crucially, jurisdictions may explore stopping cost-sharing arrangements
envisaging that the cost of maintaining the restrained assets be borne by request-
ing jurisdictions when obtaining a final confiscation order is expected to take a
long time. The financial burden, initially borne by the requested jurisdiction,
possibly could be switched to the requesting one if the confiscation order does
not intervene before a mutually agreed period.
One way to mitigate the financial burden of requested jurisdictions has been
highlighted by the United States. In a number of domestic cases where it has
restrained significant property such as freighters or airplanes used for charter,
the US government has returned those assets to the custody of the purported
owner. This action is done when a bond is posted in cash or by a third-party
insurer to shift the costs of maintenance back to the owner pending the proceed-
ing. Such cases allow the authorities to confiscate the proceeds of the bond, if
necessary. The same action could be used in direct enforcement cases involving
highly valuable assets.
Alternatively, more jurisdictions could explore interlocutory sale authority
for restrained assets (See Recommendations, section 5.1.12 of this study).
5.2.9 Develop specialized knowledge about the direct
enforcement of foreign confiscation orders within competent
authorities (for example, MLA central authorities, courts, and
asset recovery managers)
Jurisdictions may consider assigning one or more of their central authority offi-
cials to support the enforcement of foreign requests for asset restraint and con-
fiscation (for example, by checking that all legal requirements are complied with
and by making the required applications to court). Developing such expertise
would benefit from infrequent personnel rotations aimed at fostering a pool of
knowledge as well as serving as steady contact with foreign counterparts.
For example, in important corruption cases in France, executing MLA
requests can be entrusted to the national financial prosecutor’s office, that
specializes in cases that are international or that require complex and technical
investigations. Also, within the French central authority, MLA requests are
drafted by officials with specific knowledge of the countries to which the
requests need to be sent. Such action makes those officials the privileged and
unique interlocutors with certain states and allows them to establish relation-
ships built on trust.
The US Department of Justice (DOJ), which includes both the MLA cen-
tral authority and federal prosecutors, has direct enforcement requests
Recommendations | 77
considered and enforced by specialists in the DOJ’s Money Laundering and
Asset Recovery Section (International Unit). This method ensures that
focused and timely attention is given to those requests and tries to develop a
body of consistent common law in interpreting this authority by filing cases
in Washington, D.C.
Developing specialized knowledge about asset recovery actions would also be
beneficial within the judicial system, including, notably, the courts that are
entrusted with making decisions about recognizing or registering foreign
restraint and confiscation orders. Some jurisdictions under survey are heading
in this direction. In Italy, most courts of appeal, which are competent for the
direct enforcement of confiscation orders, can rely on panels of judges special-
ized in international legal cooperation.
More generally, all those involved in asset recovery should become familiar
with the proceedings aimed at the direct and indirect enforcement of foreign
orders. This knowledge may reduce the chance that the competent authorities in
the requested jurisdiction fail to enforce a foreign request because they cannot
sufficiently master the operational consequences of registering or recognizing a
foreign order, for example, in asset management. The easiest option for a country
in such a situation might be to invoke a legal barrier to justify the rejection of the
foreign request as the alternative might be the need to acknowledge its domestic
lack of preparedness, knowledge, or experience.
NOTES
1. A provision is self-executing when it is directly enforceable without the need for the coun-
try to adopt implementing legislation.
2. The United States, for example, authorizes the direct enforcement of a foreign confiscation
order regarding any property “involved in” the commission of any foreign offense listed as
a predicate for the money laundering statute, including foreign public corruption (28 U.S.C.
2467(a)(2)(B)). By contrast, the criminal and civil confiscation statutes that authorize con-
fiscation in connection with domestic public corruption cases are limited to the confisca-
tion of proceeds and do not generally extend to property involved.
3. Criminal Procedure Law, § 754(1) (Latvia).
4. For example, Australia, New Zealand, and United Kingdom.
5. As discussed in section 2.3 of this study, in relation to foreign NCB confiscation orders,
under UNCAC the States Parties are technically only required to consider enforcing such
orders.
6. As also mentioned in the Explanatory Report to the 2005 Warsaw Convention, ¶ 167,
https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?
documentId=09000016800d3813.
7. Experts from India, for example, report problems in having its adjudicating authority
recognized as an authority equivalent to a court by some foreign jurisdictions. Under the
Prevention of Money Laundering Act (PMLA), 2002, the adjudicating authority is in charge
of deciding that any property is involved in money laundering and shall, by an order in
writing, confirm the attachment of the property made or retention of property or record
seized (as under § 5 of PMLA).
8. Law 1708 of 2014, art. 208-A, as amended by Law 1849 of 2017 (Colombia).
9. Useful guidance may be found in framework documents of the Working Group on Asset
Recovery, a subsidiary body of the CoSP to the UNCAC. The Working Group is responsible
for assisting and advising the CoSP implement its mandate with the return of proceeds of
corruption. Find Working Group documents at www.unodc.org/unodc/en/corruption
/WG-AssetRecovery/working-group-on-asset-recovery.html.
The UNOCD’s website explains: “The Implementation Review Group is a subsidiary
body of the Conference of the States Parties to the United Nations Convention against
Corruption. It is responsible for having an overview of the review process and consider
78 | Orders without Borders
technical assistance requirements for the effective implementation of the Convention.” See
https://www.unodc.org/unodc/en/corruption/IRG/implementation-review-group.html.
Further useful information can be found on the UNCAC country profile page that con-
tains completed UNCAC Implementation Review executive summaries and many pub-
lished country reports. See https://www.unodc.org/unodc/en/corruption/country-profile
/index.html.
10. Constitution, art. 105.I.i (Brazil).
11. 1970 European Convention on the International Validity of Criminal Judgments, art. 1.
12. US practitioners report that some jurisdictions seek direct enforcement of what are, in fact,
civil judgments. These cannot be enforced under the US direct enforcement statute;
a completely different process may be required. Under current direct enforcement legisla-
tion, the United States cannot enforce foreign restitution orders, foreign civil judgments, or
foreign criminal orders that impose fines.
13. CARIN (Camden Assets Recovery Inter-Agency Network) is an informal network of law
enforcement and judicial practitioners in the field of asset tracing, freezing, seizure, and
confiscation.
14. For example, the United States can enforce orders that do not specify the assets to be seized
or confiscated (especially if property is held in names of nominees). But before spending
time and resources in directly enforcing foreign orders, US authorities need (a) to receive
sufficient information to be sure that the assets intended to be restrained or confiscated can
reasonably be located in the United States and (b) to prove that the record owners are not
good faith purchasers. Some information may also be needed in the form of an affidavit.
15. For example, France.
16. See the website of Global Operational Network of Anti-Corruption Law Enforcement
Authorities, https://globenetwork.unodc.org/.
17. The United States, for instance, might informally advise that an asset (a) cannot be located
in its territory, (b) appears to have been sold to a bona fide purchaser, or (c) is not worth
pursuing a formal request because certain bank accounts have already been closed.
REFERENCES AND OTHER READINGS
ADB (Asian Development Bank) and OECD (Organisation for Economic Co-operation and
Development). 2017. “Mutual Legal Assistance in Asia and the Pacific: Experiences in
31 Jurisdictions.” ADB and OECD Anti-Corruption Initiative for Asia and the Pacific, Paris.
www.oecd.org/corruption/ADB-OECD-Mutual-Legal-Assistance-Corruption-2017.pdf.
Brun, Jean-Pierre, Anastasia Sotiropoulou, Larissa Gray, Clive Scott, and Kevin M. Stephenson.
2021. Asset Recovery Handbook: A Guide for Practitioners. Washington, DC: International
Bank for Reconstruction and Development and the World Bank. https://star.worldbank.org
/publication/asset-recovery-handbook-guide-practitioners-second-edition.
Commonwealth Secretariat. 2011. Commonwealth Strategies to Combat Corruption. London:
Commonwealth Secretariat. https://thecommonwealth.org/sites/default/files/key
_reform_pdfs/Strategies%20to%20Combat%20Corruption%20141011_0.pdf.
Fazekas, Mihaly, and Eva Nanopoulos. 2016. “The Effectiveness of EU Law: Insights from the
EU Legal Framework on Asset Confiscation.” European Journal of Crime, Criminal Law and
Criminal Justice (February): 39–64.
Greenberg, Theodore S., Linda M. Samuel, Wingate Grant, and Larissa Gray. 2009. Stolen
Asset Recovery : A Good Practices Guide for Non-conviction Based Asset Forfeiture.
Washington, DC: World Bank. https://openknowledge.worldbank.org/handle/10986/2615.
Rose, Cecily, Michael Kubiciel, and Oliver Landwehr (eds.). 2019. The United Nations Convention
Against Corruption: A Commentary. Oxford, UK: Oxford University Press.
Stephenson, Kevin M., Larissa Gray, Ric Power, Jean-Pierre Brun, Gabriele Dunker, and Melissa
Panjer. 2011. Barriers to Asset Recovery: An Analysis of the Key Barriers and Recommendations
for Action. Washington, DC: International Bank for Reconstruction and Development and
the World Bank. https://star.worldbank.org/sites/star/files/Barriers%20to%20Asset%20
Recovery.pdf.
Recommendations | 79
Tickner, Jonathan, and Sarah Gabriel (eds.). 2015. “Asset Recovery in 26 Jurisdictions
Worldwide.” Law Business Research Ltd, London.
United Nations. 2010. Travaux Préparatoires of the Negotiations for the Elaboration of the United
Nations Convention Against Corruption. Vienna: United Nations Office on Drugs and Crime.
UNODC (United Nations Office on Drugs and Crime). 2019. “UNODC Enhances Judicial
Cooperation Between Africa and Europe.” UNODC in West and Central Africa, PROMIS
Judicial Cooperation, September 6. United Nations, New York.
APPENDIX A
UNCAC Provisions (Excerpts)
ARTICLE 2. USE OF TERMS
For the purposes of this Convention:
[…]
(d) “Property” shall mean assets of every kind, whether corporeal or incorpo-
real, movable or immovable, tangible or intangible, and legal documents
or instruments evidencing title to or interest in such assets;
“Proceeds of crime” shall mean any property derived from or obtained,
(e)
directly or indirectly, through the commission of an offence;
“Freezing” or “seizure” shall mean temporarily prohibiting the transfer,
(f )
conversion, disposition or movement of property or temporarily assuming
custody or control of property on the basis of an order issued by a court or
other competent authority;
“Confiscation”, which includes forfeiture where applicable, shall mean
(g)
the permanent deprivation of property by order of a court or other com-
petent authority;
[…].
ARTICLE 31. FREEZING, SEIZURE AND CONFISCATION
1. Each State Party shall take, to the greatest extent possible within its domestic
legal system, such measures as may be necessary to enable confiscation of:
Proceeds of crime derived from offences established in accordance with
(a)
this Convention or property the value of which corresponds to that of
such proceeds;
(b) Property, equipment or other instrumentalities used in or destined for use
in offences established in accordance with this Convention.
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82 | Orders without Borders
Each State Party shall take such measures as may be necessary to enable the
2.
identification, tracing, freezing or seizure of any item referred to in para-
graph 1 of this article for the purpose of eventual confiscation.
3. Each State Party shall adopt, in accordance with its domestic law, such legis-
lative and other measures as may be necessary to regulate the administration
by the competent authorities of frozen, seized or confiscated property cov-
ered in paragraphs 1 and 2 of this article.
If such proceeds of crime have been transformed or converted, in part or in
4.
full, into other property, such property shall be liable to the measures
referred to in this article instead of the proceeds.
If such proceeds of crime have been intermingled with property acquired
5.
from legitimate sources, such property shall, without prejudice to any pow-
ers relating to freezing or seizure, be liable to confiscation up to the assessed
value of the intermingled proceeds.
Income or other benefits derived from such proceeds of crime, from prop-
6.
erty into which such proceeds of crime have been transformed or converted
or from property with which such proceeds of crime have been intermingled
shall also be liable to the measures referred to in this article, in the same
manner and to the same extent as proceeds of crime.
For the purpose of this article and article 55 of this Convention, each State
7.
Party shall empower its courts or other competent authorities to order that
bank, financial or commercial records be made available or seized. A State
Party shall not decline to act under the provisions of this paragraph on the
ground of bank secrecy.
States Parties may consider the possibility of requiring that an offender
8.
demonstrate the lawful origin of such alleged proceeds of crime or other
property liable to confiscation, to the extent that such a requirement is con-
sistent with the fundamental principles of their domestic law and with the
nature of judicial and other proceedings.
The provisions of this article shall not be so construed as to prejudice the
9.
rights of bona fide third parties.
Nothing contained in this article shall affect the principle that the measures
10.
to which it refers shall be defined and implemented in accordance with and
subject to the provisions of the domestic law of a State Party.
ARTICLE 46. MUTUAL LEGAL ASSISTANCE
1. States Parties shall afford one another the widest measure of mutual legal
assistance in investigations, prosecutions and judicial proceedings in relation
to the offences covered by this Convention.
[…]
3. Mutual legal assistance to be afforded in accordance with this article may be
requested for any of the following purposes:
[…]
Appendix A | 83
Identifying or tracing proceeds of crime, property, instrumentalities or
(g)
other things for evidentiary purposes;
[…]
( j) Identifying, freezing and tracing proceeds of crime in accordance with the
provisions of chapter V of this Convention;
The recovery of assets, in accordance with the provisions of chapter V of
(k)
this Convention.
CHAPTER V—ASSET RECOVERY
ARTICLE 51. GENERAL PROVISION
The return of assets pursuant to this chapter is a fundamental principle of this
Convention, and States Parties shall afford one another the widest measure of
cooperation and assistance in this regard.
ARTICLE 54. MECHANISMS FOR RECOVERY OF PROPERTY
THROUGH INTERNATIONAL COOPERATION IN
CONFISCATION
1. Each State Party, in order to provide mutual legal assistance pursuant to arti-
cle 55 of this Convention with respect to property acquired through or
involved in the commission of an offence established in accordance with this
Convention, shall, in accordance with its domestic law:
Take such measures as may be necessary to permit its competent authori-
(a)
ties to give effect to an order of confiscation issued by a court of another
State Party;
Take such measures as may be necessary to permit its competent author-
(b)
ities, where they have jurisdiction, to order the confiscation of such prop-
erty of foreign origin by adjudication of an offence of money-laundering
or such other offence as may be within its jurisdiction or by other proce-
dures authorized under its domestic law; and
Consider taking such measures as may be necessary to allow confiscation
(c)
of such property without a criminal conviction in cases in which the
offender cannot be prosecuted by reason of death, flight or absence or in
other appropriate cases.
2. Each State Party, in order to provide mutual legal assistance upon a request
made pursuant to paragraph 2 of article 55 of this Convention, shall, in accor-
dance with its domestic law:
Take such measures as may be necessary to permit its competent authori-
(a)
ties to freeze or seize property upon a freezing or seizure order issued by
a court or competent authority of a requesting State Party that provides a
reasonable basis for the requested State Party to believe that there are suf-
ficient grounds for taking such actions and that the property would
84 | Orders without Borders
eventually be subject to an order of confiscation for purposes of paragraph
1 (a) of this article;
Take such measures as may be necessary to permit its competent author-
(b)
ities to freeze or seize property upon a request that provides a reasonable
basis for the requested State Party to believe that there are sufficient
grounds for taking such actions and that the property would eventually be
subject to an order of confiscation for purposes of paragraph 1 (a) of this
article; and
Consider taking additional measures to permit its competent authorities
(c)
to preserve property for confiscation, such as on the basis of a foreign
arrest or criminal charge related to the acquisition of such property.
ARTICLE 55. INTERNATIONAL COOPERATION FOR
PURPOSES OF CONFISCATION
1. A State Party that has received a request from another State Party having
jurisdiction over an offence established in accordance with this Convention
for confiscation of proceeds of crime, property, equipment or other instru-
mentalities referred to in article 31, paragraph 1, of this Convention situated
in its territory shall, to the greatest extent possible within its domestic legal
system:
Submit the request to its competent authorities for the purpose of obtain-
(a)
ing an order of confiscation and, if such an order is granted, give effect to
it; or
(b) Submit to its competent authorities, with a view to giving effect to it to the
extent requested, an order of confiscation issued by a court in the territory
of the requesting State Party in accordance with articles 31, paragraph 1,
and 54, paragraph 1 (a), of this Convention insofar as it relates to proceeds
of crime, property, equipment or other instrumentalities referred to in
article 31, paragraph 1, situated in the territory of the requested State
Party.
2. Following a request made by another State Party having jurisdiction over an
offence established in accordance with this Convention, the requested State
Party shall take measures to identify, trace and freeze or seize proceeds of
crime, property, equipment or other instrumentalities referred to in article 31,
paragraph 1, of this Convention for the purpose of eventual confiscation to be
ordered either by the requesting State Party or, pursuant to a request under
paragraph 1 of this article, by the requested State Party.
3. The provisions of article 46 of this Convention are applicable, mutatis mutan-
dis, to this article. In addition to the information specified in article 46, para-
graph 15, requests made pursuant to this article shall contain:
In the case of a request pertaining to paragraph 1 (a) of this article, a
(a)
description of the property to be confiscated, including, to the extent pos-
sible, the location and, where relevant, the estimated value of the property
and a statement of the facts relied upon by the requesting State Party
Appendix A | 85
sufficient to enable the requested State Party to seek the order under its
domestic law;
(b) In the case of a request pertaining to paragraph 1 (b) of this article, a legally
admissible copy of an order of confiscation upon which the request is
based issued by the requesting State Party, a statement of the facts and
information as to the extent to which execution of the order is requested,
a statement specifying the measures taken by the requesting State Party to
provide adequate notification to bona fide third parties and to ensure due
process and a statement that the confiscation order is final;
In the case of a request pertaining to paragraph 2 of this article, a state-
(c)
ment of the facts relied upon by the requesting State Party and a descrip-
tion of the actions requested and, where available, a legally admissible
copy of an order on which the request is based.
4. The decisions or actions provided for in paragraphs 1 and 2 of this article shall
be taken by the requested State Party in accordance with and subject to the
provisions of its domestic law and its procedural rules or any bilateral or mul-
tilateral agreement or arrangement to which it may be bound in relation to
the requesting State Party.
5. Each State Party shall furnish copies of its laws and regulations that give
effect to this article and of any subsequent changes to such laws and regula-
tions or a description thereof to the Secretary-General of the United Nations.
6. If a State Party elects to make the taking of the measures referred to in para-
graphs 1 and 2 of this article conditional on the existence of a relevant treaty,
that State Party shall consider this Convention the necessary and sufficient
treaty basis.
7. Cooperation under this article may also be refused or provisional measures
lifted if the requested State Party does not receive sufficient and timely evi-
dence or if the property is of a de minimis value.
8. Before lifting any provisional measure taken pursuant to this article, the
requested State Party shall, wherever possible, give the requesting State Party
an opportunity to present its reasons in favour of continuing the measure.
9. The provisions of this article shall not be construed as prejudicing the rights
of bona fide third parties.
ARTICLE 59. BILATERAL AND MULTILATERAL AGREEMENTS
AND ARRANGEMENTS
States Parties shall consider concluding bilateral or multilateral agreements or
arrangements to enhance the effectiveness of international cooperation under-
taken pursuant to this chapter of the Convention.
APPENDIX B
Questionnaire for National Experts
QUESTIONS FOR ALL COUNTRIES
1. Before receiving this questionnaire, were you aware of articles 54(1(a) and
55(1)(b) of UNCAC dealing with the direct enforcement of confiscation
orders?
2. Regardless of UNCAC, were you aware that some countries are in a position
to directly enforce foreign confiscation orders?
3. Is your country in a position to directly enforce foreign confiscation orders?
(If your answer is positive, go straight to question 6)
4. Have the authorities of your country ever debated the possibility to introduce
normative changes to enable the direct enforcement of foreign confiscation
orders?
5. Would the possibility to directly enforce foreign confiscation orders be some-
thing that should be considered introducing in your legal system? If so, why?
If not, why?
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88 | Orders without Borders
6. Has any foreign country (to which you have requested the freezing/seizure/
confiscation of assets) handled your requests via a direct enforcement
mechanism?
7. If your answer to question 6 is positive, what challenges, if any, have you/ the
authorities of your jurisdiction encountered in having your request executed
via a direct enforcement mechanism? (It would be very useful if you could
provide one or more case studies highlighting successes and/or failures. In
case of challenges encountered, what could have been done better?)
If your country is not in a position to directly enforce foreign confiscation orders,
there are no more questions for you. Thank you for participating in this
questionnaire.
QUESTIONS ONLY FOR COUNTRIES THAT ARE IN A
POSITION TO DIRECTLY ENFORCE FOREIGN CONFISCATION
ORDERS
8. Please describe the procedure, requirements and authorities involved in the
process of directly enforcing foreign confiscation orders. Mention articles of
relevant legal texts. To the extent possible, provide web links to legal texts,
explanatory notes, jurisprudence, relevant scholarly articles, etc.
9. Does your jurisdiction have authority to directly enforce foreign provisional
orders for asset freezing/seizure? If so, please describe procedure, require-
ments and authorities involved. Mention articles of relevant legal texts. To
the extent possible, provide web links to legal texts, explanatory notes, juris-
prudence, relevant scholarly articles, etc.
10. Does your jurisdiction have authority to directly enforce foreign non-convic-
tion-based confiscation orders? Please provide details.
11. Does your jurisdiction require the existence of a treaty in order to directly
enforce foreign orders for asset freezing/seizure or confiscation? If so, are
you aware of the requirement set forth in article 55.6 of UNCAC?
Appendix B | 89
12. Has your jurisdiction ever triggered in practice its authority to directly
enforce foreign orders for asset freezing/seizure or confiscation? To the
extent possible, provide numbers and statistics. If exact data are unknown or
unavailable, provide best estimates based on your experience.
13. If the authorities of your jurisdiction have a choice between executing a for-
eign request via “direct enforcement” and other legal means (e.g. taking a
domestic order on behalf of the requesting country), what avenue is more
likely to be chosen, and why?
14. It would be very useful if you could provide case studies highlighting suc-
cesses and/or failures in the process of directly enforcing foreign orders for
asset freezing/seizure/confiscation. If challenges were encountered, what
could have been done better?
15. Has a foreign request for asset freezing/seizure/confiscation via direct
enforcement ever been rejected? If yes, what were the most prevalent reasons
for the rejection?
16. In your opinion, are the authorities of your jurisdiction well-acquainted with
the procedure leading to the direct enforcement of foreign freezing/seizure
and confiscation orders? Is this procedure followed as a routine practice or
only on rare occasions?
17. What legal, institutional and practical challenges, if any, do the authorities of
your country experience in applying the procedure for the direct enforce-
ment of foreign orders for asset freezing/seizure/confiscation (e.g. legislative
gaps, inconsistencies, inadequate information provided by requesting coun-
tries, etc.)?
xecution of
18. Are the challenges you mentioned under question 17 specific to the e
requests for asset confiscation via enforcement of foreign orders, or are they
common to the execution of asset recovery and MLA requests in g eneral?
Please elaborate.
90 | Orders without Borders
19. In your opinion, what could be improved to make the procedure leading
to the enforcement of foreign freezing/seizure/confiscation orders more
effective and faster?
Do you experience any specific challenges in directly enforcing the confisca-
20.
tion orders of certain countries (e.g. countries from certain regions or sharing
a certain legal system) as opposed to others? Please elaborate.
21. Provide any additional feedback, comment or suggestion you may have on the
broad subject of executing foreign requests for asset freezing/seizure/
confiscation via direct enforcement mechanisms.
APPENDIX C
Surveyed Countries’ Legal
Frameworks (Excerpts)
AUSTRALIA
Mutual Assistance in Criminal Matters Act 1987
PART VI–PROCEEDS OF CRIME
DIVISION 2–REQUESTS BY FOREIGN COUNTRIES
Subdivision A–Enforcement of foreign orders
Object of Subdivision–SECT 33A
(1) The object of this Subdivision is to facilitate international cooperation in the
recovery of property through the registration and enforcement of foreign
orders in Australia.
(2) For the purpose of achieving this object, it is the intention of the Parliament
that the validity of foreign orders not be examined.
Requests for enforcement of foreign orders–SECT 34
(1) If:
(a) a foreign country requests the Attorney-General to make arrangements
for the enforcement of:
(i) a foreign forfeiture order, made in respect of a foreign serious
offence, against property that is reasonably suspected of being
located in Australia; or
(ii) a foreign pecuniary penalty order, made in respect of a foreign seri-
ous offence, where some or all of the property available to satisfy the
order is reasonably suspected of being located in Australia; and
(b) the Attorney-General is satisfied that:
(i) a person has been convicted of the offence; and
(ii) the conviction and the order are not subject to further appeal in the
foreign country;
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92 | Orders without Borders
the Attorney-General may authorise a proceeds of crime authority, in writing, to
apply for the registration of the order.
(2) If a foreign country requests the Attorney-General to make arrangements
for the enforcement of:
(a) a foreign forfeiture order that:
(i) has the effect of forfeiting a person’s property on the basis that the
property is, or is alleged to be, the proceeds or an instrument of a
foreign serious offence (whether or not a person has been convicted
of that offence); and
(ii) is made against property that is reasonably suspected of being
located in Australia; or
(b) a foreign pecuniary penalty order in respect of which both of the
following apply:
(i) the order has the effect of requiring a person to pay an amount of
money on the basis that the money is, or is alleged to be, the benefit
derived from a foreign serious offence (whether or not the person
has been convicted of that offence);
(ii) some or all of the property available to satisfy the order is reason-
ably suspected of being located in Australia;
the Attorney-General may authorise a proceeds of crime authority, in writ-
ing, to apply for the registration of the order.
(3) If a foreign country requests the Attorney-General to make arrangements
for the enforcement of a foreign restraining order, against property that is
reasonably suspected of being located in Australia, that is:
(a) made in respect of a foreign serious offence for which a person has been
convicted or charged; or
(b) made in respect of the alleged commission of a foreign serious offence
(whether or not the identity of the person who committed the offence is
known);
the Attorney-General may authorise a proceeds of crime authority, in writ-
ing, to apply for the registration of the order.
Registration of foreign orders–SECT 34A
An application to a court for registration of a foreign order in accordance
(1A)
with an authorisation under this Subdivision must be to a court with pro-
ceeds jurisdiction.
If a proceeds of crime authority applies to a court with proceeds jurisdic-
(1)
tion for registration of a foreign order in accordance with an authorisation
under this Subdivision, the court must register the order accordingly,
unless the court is satisfied that it would be contrary to the interests of
justice to do so.
The proceeds of crime authority must give notice of the application:
(2)
(a) to specified persons the authority has reason to suspect may have an
interest in the property; and
(b) to such other persons as the court directs.
However, the court may consider the application without notice having
(3)
been given if the proceeds of crime authority requests the court to do so.
Appendix C | 93
(4) If a foreign pecuniary penalty order or a foreign restraining order is regis-
tered in a court under this Subdivision:
(a) a copy of any amendments made to the order (whether before or after
registration) may be registered in the same way as the order; and
(b) the amendments do not, for the purposes of this Act and the Proceeds of
Crime Act, have effect until they are registered.
(5) An order or an amendment of an order is to be registered in a court by the
registration, in accordance with the rules of the court, of:
(a) a copy of the appropriate order or amendment sealed by the court or
other authority making that order or amendment; or
(b) a copy of that order or amendment duly authenticated in accordance
with subsection 43(2).
Enforcement of foreign forfeiture orders–SECT 34B
(1) A foreign forfeiture order registered in a court under this Subdivision has
effect, and may be enforced, as if it were a forfeiture order made by the court
under the Proceeds of Crime Act at the time of registration.
(2) In particular, section 68 of the Proceeds of Crime Act applies in relation to
the forfeiture order as if:
(a) the reference in subparagraph 68(1)(b)(i) of that Act to a proceeds of
crime authority having applied for the order were a reference to the
foreign forfeiture order having been made; and
(b) subparagraph 68(1)(b)(ii) of that Act did not apply if the person in ques-
tion died after the authority applied for registration of the order under
section 34A of this Act.
(3) Subject to section 34C, property that is subject to a foreign forfeiture order
registered under this Subdivision may be disposed of, or otherwise dealt
with, in accordance with any direction of the Attorney-General or of a per-
son authorised by the Attorney-General in writing for the purposes of this
subsection.
(4) Sections 69 and 70 and Divisions 5 to 7 of Part 2-2 of the Proceeds of Crime
Act do not apply in relation to a foreign forfeiture order registered under this
Subdivision.
Effect on third parties of registration of foreign forfeiture orders—SECT 34C
Applications by third parties
(1) If a court registers under section 34A a foreign forfeiture order against
property, a person who:
(a) claims an interest in the property; and
(b) either:
(i) if the registration relates to an authorisation given under subsection
34(1)—was not convicted of a foreign serious offence in respect of
which the order was made; or
(ii) if the registration relates to an authorisation given under subsection
34(2)—is not a person whom the court has reason to believe commit-
ted a foreign serious offence in respect of which the order was made;
94 | Orders without Borders
may apply to the court for an order under subsection (2).
Orders by the court
(2) If, on an application for an order under this subsection, the court is satisfied
that:
(a) the applicant was not, in any way, involved in the commission of a for-
eign serious offence in respect of which the foreign forfeiture order was
made; and
(b) if the applicant acquired the interest in the property at the time of or
after the commission of such an offence—the property was neither pro-
ceeds nor an instrument of such an offence;
the court must make an order:
(c) declaring the nature, extent and value (as at the time when the order is
made) of the applicant’s interest in the property; and
(d) either:
(i) directing the Commonwealth to transfer the interest to the
applicant; or
(ii) declaring that there is payable by the Commonwealth to the applicant
an amount equal to the value declared under paragraph (c).
Certain people need leave to apply
(3) A person who was given notice of, or appeared at, the hearing held in
connection with the making of the foreign forfeiture order is not entitled to
apply under subsection (1) unless the court gives leave.
(4) The court may give leave if satisfied that there are special grounds for
doing so.
(5) Without limiting subsection (4), the court may grant a person leave if the
court is satisfied that:
(a) the person, for a good reason, did not attend the hearing referred to in
subsection (3) although the person had notice of the hearing; or
(b) particular evidence that the person proposes to adduce in connection
with the proposed application under subsection (1) was not available to
the person at the time of the hearing referred to in subsection (3).
Period for applying
(6) Unless the court gives leave, an application under subsection (1) is to be
made before the end of 6 weeks beginning on the day when the foreign for-
feiture order is registered in the court.
(7) The court may give leave to apply outside that period if the court is satisfied
that the person’s failure to apply within that period was not due to any
neglect on the person’s part.
Procedural matters
(8) A person who applies under subsection (1) must give to the proceeds of
crime authority authorised under section 34 notice, as prescribed, of the
application.
Appendix C | 95
(9) That proceeds of crime authority is to be a party to proceedings on an appli-
cation under subsection (1). The Attorney-General may intervene in the
proceedings.
Enforcement of foreign restraining orders—SECT 34E
(1) A foreign restraining order registered in a court under this Subdivision has
effect, and may be enforced, as if it were a restraining order that:
(a) was made by the court under the Proceeds of Crime Act at the time of
the registration; and
(b) directed that the property specified in the order is not to be disposed of
or otherwise dealt with by any person.
(2) In particular:
(a) section 288 of that Act applies as if:
(i) the reference in that section to the Official Trustee’s exercise of
powers under that Act included a reference to the Official Trustee’s
exercise of those powers in relation to a foreign restraining order so
registered; and
(ii) the reference in that section to the Official Trustee’s performance of
functions or duties under that Act included a reference to the
Official Trustee’s performance of those functions or duties in
relation to such a foreign restraining order; and
(b) section 289 of that Act applies as if the reference in that section to con-
trolled property included a reference to property that is subject to an
order under section 35; and
(c) section 290 of that Act applies as if the reference in that section to the
controlled property were a reference to the property that is subject to an
order under section 35.
(3) Divisions 1, 2 and 3 of Part 2-1, section 33, Divisions 5 and 6 of Part 2-1 and
sections 142, 143, 169, 170 and 282 to 287 of the Proceeds of Crime Act do not
apply in relation to a foreign restraining order registered under this
Subdivision.
Copies of foreign orders sent by fax, email or other electronic means—SECT 34F
(1) If a copy of a sealed or authenticated copy of:
(a) a foreign order; or
(b) an amendment of a foreign order;
is sent by fax, email or other electronic means, the copy is to be regarded, for
the purposes of this Act, as the same as the sealed or authenticated copy.
(2) However, if registration of the order under this Subdivision is effected by
means of the copy, the registration ceases to have effect at the end of 45 days
unless the sealed or authenticated copy has been filed by then in the court
that registered the order.
Cancelling registration—SECT 34G
(1) The Attorney-General may direct the proceeds of crime authority autho-
rised under section 34 to apply to a court in which:
96 | Orders without Borders
(a) a foreign pecuniary penalty order; or
(b) a foreign restraining order;
has been registered under this Subdivision for cancellation of the
registration.
(2) Without limiting subsection (1), the Attorney-General may give a direction
under that subsection in relation to an order if the Attorney-General is
satisfied that:
(a) the order has ceased to have effect in the foreign country in which the
order was made; or
(b) cancellation of the order is appropriate having regard to the arrange-
ments entered into between Australia and the foreign country in rela-
tion to the enforcement of orders of that kind.
(3) The court to which a proceeds of crime authority applies in accordance with
a direction under subsection (1) must cancel the registration accordingly.
BRAZIL
Brazilian Code of Civil Procedure (Law nº 13.105, March 16, 2015)
Chapter VI—Ratification of a Foreign Decision and Granting of Exequatur
of a Letter (Arts. 960 to 965)
Art. 960. The ratification of a foreign decision shall be requested by an action for
the ratification of a foreign decision, unless otherwise provided by a treaty.
§ 1 A foreign interlocutory decision may be executed in Brazil by means of a
letter rogatory.
§ 2 The ratification shall comply with the provisions of the treaties in effect in
Brazil and the Internal Regulations of the Superior Court of Justice.
§ 3 The ratification of a foreign arbitral decision shall observe the provisions of
treaties and statutory law, applying, subordinately, the provisions of this
Chapter.
Art. 961. A foreign decision shall only be enforceable in Brazil after the homolo-
gation or the granting of the exequatur of the letters rogatory, unless otherwise
provided by law or treaty.
§ 1 A final judicial decision, as well as a non-judicial one that would be of a judi-
cial nature under Brazilian law, may be ratified.
§ 2 A foreign decision may be partially homologated.
§ 3 The Brazilian judicial authority may grant applications for urgency and per-
form acts of provisional execution in an action for the homologation of a
foreign decision.
§ 4 A foreign decision for the purpose of tax foreclosure shall be homologated
when provided for by treaty or by a promise of reciprocity made to the
Brazilian authority.
Appendix C | 97
§ 5 A foreign sentence of a consensual divorce is enforceable in Brazil, inde-
pendently of its ratification by the Superior Court of Justice.
§ 6 In the case of § 5, it shall be up to any judge to examine the validity of the
decision, as the main issue or incidentally, when this matter is raised in a
case under its jurisdiction.
Art. 962. A foreign judgment granting interlocutory relief may be executed.
§ 1 A foreign decision granting interlocutory relief shall be executed by means
of a letter rogatory.
§ 2 Interlocutory relief granted without having heard the defendant may be
executed provided that the right to be heard, audi alteram partem, shall be
assured at a later stage.
§ 3 The judgment regarding the urgency of the relief falls exclusively to the
judicial authority that rendered the foreign decision.
§ 4 When ratification is waived for the foreign judgment to be enforced in
Brazil, the decision that grants the interlocutory relief shall depend, in order
to be enforced, on the express recognition of its validity by the judge with
jurisdiction to order its satisfaction, waiving ratification by the Superior
Court of Justice.
Art. 963. The following are indispensable requirements for the ratification of the
decision:
I–that it be rendered by an authority with jurisdiction;
II–that it be preceded by suitable service of process, even if there is default;
III–that it be effective in the country where it was rendered;
IV–that it does not violate a Brazilian res judicata [final] decision;
V–that it be accompanied by an official translation, unless its waiver is pro-
vided for in a treaty;
VI–that it does not contain an express violation of public policy.
Sole paragraph. In order to grant the exequatur of the letters rogatory, the con-
ditions laid down in the head provision of this article and in art. 962, § 2 shall be
observed.
Art. 964. The foreign decision shall not be ratified when the Brazilian courts
have exclusive jurisdiction.
Sole paragraph. The provision is also applicable to the grant of exequatur of the
letter rogatory.
Art. 965. The satisfaction of the foreign judgment shall occur before the federal
court jurisdiction, at the request of the party, in accordance with the rules estab-
lished for the satisfaction of Brazilian decisions.
Sole paragraph. The request for execution shall be accompanied by a certified
copy of the ratification decision or exequatur, as the case may be.
98 | Orders without Borders
Brazilian Penal Code (Decree-Law nº 2.848, December 7, 1940)
Effectiveness of the foreign judgement
Art. 9–The foreign sentence, when the application of the Brazilian law produces
the same consequences in the species, may be homologated in Brazil to:
compel the condemned to repair the damage, to make restitutions and to
I–
other civil effects; (Included by Law nº 7.209 of July 11, 1984)
subject him/her to a security measure. (Included by Law nº 7.209 of
II–
July 11, 1984)
Sole paragraph–The homologation depends on: (Included by Law nº 7.209 of
July 11, 1984)
a. for the purposes provided for in item I, the request of the interested
party;
b. for the other purposes, the existence of an extradition treaty with the
country from which the judicial authority pronounced the sentence, or,
in the absence of a treaty, a request of the Minister of Justice. (Included
by Law nº 7.209 of July 11, 1984).
Brazilian Penal Procedure Code (Decree-Law nº 3.689, October 3, 1941)
Book I
Procedure in General
Title IV
Civil Action
Art. 63. Once the judicial decision has become final, the offended party, his legal
representative or his heirs may enforce it in the civil court for the purpose of
reparation of the damage.
Book V
Jurisdictional Relations with Foreign Authorities
Single Title
Chapter I
General Provisions
Art. 780. Without prejudice to conventions or treaties, the provisions of this Title
shall apply to the homologation of foreign criminal sentences and to the dispatch
and fulfillment of letters rogatory for summons, inquiries and other measures
necessary for the instruction of criminal proceedings.
Art. 781. Foreign sentences will not be homologated, nor letters rogatory fulfilled,
if they are contrary to public order and good customs.
Art. 782. The transit, through diplomatic channels, of the documents presented
will constitute enough proof of their authenticity.
Appendix C | 99
Chapter III
The Homologation of Foreign Judgments
Art. 787. Foreign sentences must be previously homologated by the Supreme
Court to produce the effects of Article 7 of the Penal Code.
Art. 788. The foreign criminal judgment will be homologated when the applica-
tion of Brazilian law to similar crimes produces the same consequences and the
following requirements concur:
is covered by the necessary external formalities, according to the legisla-
I–
tion of the country of origin;
was handed down by a competent judge, through regular summons,
II–
according to the same legislation;
is a final judicial decision;
III–
is duly authenticated by a Brazilian consul;
IV–
V–is accompanied by a translation, made by a public translator.
Art. 789. The Prosecutor General of the Republic, whenever he becomes aware
of the existence of a foreign criminal sentence issued by a State that has an extra-
dition treaty with Brazil and that has imposed a personal security measure or an
accessory penalty that must be served in Brazil, shall request to the Minister of
Justice to make arrangements to obtain elements that will enable him to request
the homologation of the sentence.
§ 1 The homologation of a sentence issued by a judicial authority of a State,
which does not have an extradition treaty with Brazil will depend on the
request of the Minister of Justice.
§ 2 Once the request for homologation has been distributed, the rapporteur will
order the summons of the interested party to submit his objections, within
ten days, if he resides in the Federal District, or thirty days, if he resides
elsewhere.
§ 3 If the interested party does not deduce its objections within that period, the
rapporteur shall appoint him a defender, who shall produce the defense
within ten days.
§ 4 The objections may only be based on doubt over the authenticity of the doc-
ument, over the understanding of the sentence, or over the lack of any of the
requirements listed in articles 781 and 788.
§ 5 Once the objections have been challenged within ten days by the general
prosecutor, the process will go to the rapporteur and to the reviser, observ-
ing in its judgment the Internal Rules of the Federal Supreme Court.
§ 6 Once the sentence has been homologated, the respective letter will be sent
to the president of the Court of Appeals of the Federal District, the State, or
the Territory.
§ 7 Upon receipt of the letter of sentence, the president of the Court of Appeals
shall send it to the judge of the place of residence of the convict, for the
application of the security measure or accessory penalty, in compliance with
the provisions of Title II, Chapter III, and Title V of Book IV of this Code.
100 | Orders without Borders
Art. 790. The interested party in the execution of a foreign criminal sentence, for
the reparation of the damage, restitution and other civil effects, may request the
Federal Supreme Court for its homologation, observing what the Code of Civil
Procedure prescribes in this regard.
BRITISH VIRGIN ISLANDS
Criminal Justice (International Co-Operation) (Enforcement of Overseas
Forfeiture Orders) Order, 1996
10. Registration of external forfeiture orders.
(1) On an application made by or on behalf of the government of a designated
country, the High Court may register an external forfeiture order made
there if,
(a) it is satisfied that at the time of registration the order is in force and not
subject to appeal;
(b) it is satisfied, where the person against whom the order is made did not
appear in the proceedings, that he received notice of the proceedings in
sufficient time to enable him to defend them; and
(c) it is of the opinion that enforcing the order in the Territory would not be
contrary to the interests of justice.
(2) In subsection (1) “appeal” includes,
(a) any proceedings by way of discharging or setting aside a judgment, and
(b) an application for a new trial or stay of execution.
(3) The High Court shall cancel the registration of an external forfeiture order
if it appears to the court that the order has been satisfied by the forfeiture of
the property liable to be recovered under the external forfeiture order or by
any other means.
11. Proof of orders and judgment of court in a designated country.
(1) For the purposes of this Order,
(a) any order made or judgment given by a court in a designated country
purporting to bear the seal of that court, or to be signed by any person in
his capacity as a judge, magistrate or officer of the court, shall be deemed
without further proof to have been duly sealed or, as the case may be, to
have been signed by that person, and
(b) a document, duly authenticated, which purports to be a copy of any
order made or judgment given by a court in a designated country shall
be deemed without further proof to be a true copy.
(2) A document purporting to be a copy of any order made or judgment given by
a court in a designated country is duly authenticated for the purposes of
subsection (1) (b) if it purports to be certified by any person in his capacity
as a judge, magistrate or officer of the court in question or by or on behalf of
the appropriate authority of the designated country.
12. Evidence in relation to proceedings and orders in a designated country.
Appendix C | 101
(1) For the purposes of this Order, a certificate purporting to be issued by or on
behalf of the appropriate authority of a designated country stating:
(a) that proceedings have been instituted and have not been concluded, or
that proceedings are to be instituted, there,
(b) in a case to which section 2 (5) (b) applies, that the defendant has been
notified as specified in that subsection,
(c) that an external forfeiture order is in force and is not subject to appeal,
(d) that property recoverable in the designated country under an external
forfeiture order remains unrecoverable there,
(e) that any person has been notified of any proceedings in accordance with
the law of the designated country, or
(f ) that an order (however described) made by a court of the designated
country is for the forfeiture and destruction or the forfeiture and other
disposal of anything in respect of which an offence to which this order
applies has been committed or which was used or intended for use in
connection with the commission of such an offence, shall, in any pro-
ceedings in the High Court, be admissible as evidence of the facts so
stated.
(2) In those proceedings a statement contained in a document, duly authenti-
cated, which purports to have been received in evidence or to be a copy of a
document so received, or to set out or summarise evidence given in proceed-
ings in a court in a designated country, shall be admissible as evidence of any
fact stated therein.
(3) A document is duly authenticated for the purposes of subsection (2) if it
purports to be certified by any person in his capacity as judge, magistrate or
officer of the court in the designated country, or by or on behalf of the appro-
priate authority of the designated country, to have been received in evidence
or to be a copy of a document so received, or, as the case may be, to be the
original document containing or summarising the evidence or a true copy of
that document.
(4) Nothing in this section shall prejudice the admission of any evidence,
whether contained in any document or otherwise, which is admissible apart
from this section.
13—Certificate of appropriate authority.
Where in relation to any designated country no authority is specified in Schedule
2, a certificate made by the Governor to the effect that the authority specified
therein is the appropriate authority for the purposes of this Order shall be suffi-
cient evidence of that fact.
14—Representation of government of a designated country.
A request for assistance sent to the Governor by the appropriate authority of a
designated country shall, unless the contrary is shown, be deemed to constitute
the authority of the government of that country for the crown prosecution ser-
vice or the Comptroller of Customs to act on its behalf in any proceedings in the
High Court under section 10 or any other provision of this Order.
102 | Orders without Borders
CANADA
Mutual Legal Assistance in Criminal Matters Act
Foreign Orders for Restraint, Seizure and Forfeiture of Property in Canada
Orders for restraint or seizure
9.3 (1) When a written request is presented to the Minister by a state or entity,
other than the International Criminal Court referred to in section 9.1, for the
enforcement of an order for the restraint or seizure of property situated in
Canada issued by a court of criminal jurisdiction of the state or entity, the
Minister may authorize the Attorney General of Canada or an attorney gen-
eral of a province to make arrangements for the enforcement of the order.
Filing of order
(2) On receipt of an authorization, the Attorney General of Canada or an attor-
ney general of a province may file a copy of the order with the superior court
of criminal jurisdiction of the province in which the property that is the sub-
ject of the order is believed to be located. On being filed, the order shall be
entered as a judgment of that court and may be executed anywhere in
Canada.
Conditions
(3) Before filing an order, the Attorney General of Canada or an attorney general
of a province must be satisfied that
(a) the person has been charged with an offence within the jurisdiction of
the state or entity; and
(b) the offence would be an indictable offence if it were committed in
Canada.
Effect of registered order
(4) On being filed,
(a) an order for the seizure of proceeds of crime may be enforced as if it
were a warrant issued under subsection 462.32(1) of the Criminal Code;
(b) an order for the restraint of proceeds of crime may be enforced as if
it were an order made under subsection 462.33(3) of the Criminal
Code;
(c) an order for the seizure of offence-related property may be enforced as
if it were a warrant issued under subsection 487(1) of the Criminal
Code, subsection 11(1) of the Controlled Drugs and Substances Act or
subsection 87(1) of the Cannabis Act, as the case may be; and
(d) an order for the restraint of offence-related property may be enforced as
if it were an order made under subsection 490.8(3) of the Criminal
Code, subsection 14(3) of the Controlled Drugs and Substances Act or
subsection 91(3) of the Cannabis Act, as the case may be.
Appendix C | 103
Filing of amendments
(5) When an order is filed under subsection (2), a copy of any amendments
made to the order may be filed in the same way as the order, and the amend-
ments do not, for the purpose of this Act, have effect until they are
registered.
Orders of forfeiture
9.4 (1) When a written request is presented to the Minister by a state or entity,
other than the International Criminal Court referred to in section 9.1, for the
enforcement of an order of forfeiture of property situated in Canada issued
by a court of criminal jurisdiction of the state or entity, the Minister may
authorize the Attorney General of Canada or an attorney general of a prov-
ince to make arrangements for the enforcement of the order.
Grounds for refusal of request
(2) The Minister shall refuse the request if he or she
(a) has reasonable grounds to believe that the request has been made for
the purpose of punishing a person by reason of their race, sex, sexual
orientation, religion, nationality, ethnic origin, language, colour, age,
mental or physical disability or political opinion;
(b) is of the opinion that enforcement of the order would prejudice an
ongoing proceeding or investigation;
(c) is of the opinion that enforcement of the order would impose an exces-
sive burden on the resources of federal, provincial or territorial
authorities;
(d) is of the opinion that enforcement of the order might prejudice Canada’s
security, national interest or sovereignty; or
(e) is of the opinion that refusal of the request is in the public interest.
Filing of order
(3) On receipt of an authorization, the Attorney General of Canada or an attor-
ney general of a province may file a copy of the order with the superior court
of criminal jurisdiction of the province in which all or part of the property
that is the subject of the order is believed to be located. On being filed, the
order shall be entered as a judgment of that court and may be executed any-
where in Canada.
Deemed filing
(4) An order that is filed under subsection (3) by an attorney general of a prov-
ince is deemed to be filed by the Attorney General of Canada.
Conditions
(5) Before filing an order, the Attorney General of Canada or an attorney general
of a province must be satisfied that
(a) the person has been convicted of an offence within the jurisdiction of
the state or entity;
104 | Orders without Borders
(b) the offence would be an indictable offence if it were committed in
Canada; and
(c) the conviction and the order are not subject to further appeal.
Effect of registered order
(6) From the date it is filed under subsection (3), subject to subsection (4),
(a) an order of forfeiture of proceeds of crime has the same effect as if it
were an order under subsection 462.37(1) or 462.38(2) of the Criminal
Code; and
(b) an order for the forfeiture of offence-related property has the same
effect as if it were an order under subsection 490.1(1) or 490.2(2) of the
Criminal Code, subsection 16(1) or 17(2) of the Controlled Drugs and
Substances Act or subsection 94(1) or 95(2) of the Cannabis Act, as the
case may be.
Filing of amendments
(7) When an order is filed under subsection (3), a copy of any amendments
made to the order may be filed in the same way as the order, and the amend-
ments do not, for the purpose of this Act, have effect until they are
registered.
Notice
(8) When an order has been filed under subsection (3),
(a) an order of forfeiture of proceeds of crime shall not be executed before
notice in accordance with subsection 462.41(2) of the Criminal Code
has been given to any person who, in the opinion of the court, appears
to have a valid interest in the property; and
(b) an order of forfeiture of offence-related property shall not be executed
before
(i) notice in accordance with subsection 490.41(2) of the Criminal
Code, subsection 19.1(2) of the Controlled Drugs and Substances Act
or subsection 98(2) of the Cannabis Act has been given to any per-
son who resides in a dwelling-house that is offence-related prop-
erty and who is a member of the immediate family of the person
charged with or convicted of the offence in relation to which prop-
erty would be forfeited, and
(ii) notice in accordance with subsection 490.4(2) of the Criminal
Code, subsection 19(2) of the Controlled Drugs and Substances
Act or subsection 97(2) of the Cannabis Act has been given to any
person who, in the opinion of the court, appears to have a valid
interest in the property.
Appendix C | 105
CYPRUS
The Prevention and Suppression of Money Laundering and Terrorist
Financing Laws of 2007–Updated 2018
PART IV–INTERNATIONAL CO-OPERATION
Interpretation of principal terms.
37. For the purposes of this Part:
“appeal” for the purposes of subsection 3(a) of section 38 (Procedure for the
enforcement of foreign orders) shall include any proceedings the object of which
is the setting aside of a judgement of the court or the retrial of the case or the stay
of its execution;
“Convention” means
(a) The United Nations Convention against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances which was ratified with the United
Nations Convention against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances (Ratification) Law;
(aa) T he European Convention on Laundering, Search, Seizure
and Confiscation of the Proceeds from Crime of 1990, which was rati-
fied with the European Convention on Laundering, Search, Seizure and
Confiscation of the Proceeds from Crime (Ratification) Law of 1995;
(b) the Convention of the Council of Europe on Laundering, Search, Seizure
and Confiscation of the Proceeds from Crime and Financing of
Terrorism which was ratified with the European Convention on
Laundering, Search, Seizure and Confiscation of the Proceeds from
Crime and Financing of Terrorism (Ratification) Law.
(c) The United Nations Convention Against Transnational Crime; and
(d) The Treaty on Mutual Legal Assistance in Penal Matters between
Cyprus and USA, which has been ratified by the Treaty between the
Government of the Republic of Cyprus and the Government of the
U.S.A. on Mutual Legal Assistance in Criminal Matters (Ratification)
Law and the Instrument which is provided for under subsection (2) of
Section 3 of the Agreement on Mutual Legal Assistance between the
European Union and the USA signed on 25 June 2003, relating to
the application of the Convention between the Republic of Cyprus and
the USA for Mutual Legal Assistance in Penal Matters, signed on
20 December 1999 (Ratification) Law of 2008.
(e) The United Nations Convention against Corruption which was ratified
with the United Nations Convention against Corruption (Ratification)
Law.
106 | Orders without Borders
“court” means the President or a Senior District Judge of the District Court of
Nicosia;
“foreign country” means a country which at the time of submitting an applica-
tion for the execution of a foreign order is a Contracting Party to the Convention;
“foreign order” means an order made by a court of a foreign country, which is
made for the purposes of the Conventions or legislation enacted for the purpose
of implementing the Conventions and shall include—
(a) Orders for the confiscation of proceeds and instrumentalities as these
are defined in the Convention and includes—
(i) An order for the confiscation of proceeds, which is in the possession
of the accused or a third person or other assets equal to the value of
the proceeds.
(ii) A confiscation order without conviction, issued by a court within
the framework of the procedure relating to a criminal offence, and
(iii) A restitution order to the legitimate owners or victims which was
issued, either before or after the coming into force of the provisions
of the Prevention and Suppression of Money Laundering Activities
(Amendment) Law of 2018:
Provided that, for the purpose of the present paragraph, ‘confisca-
tion order without conviction’ includes an order without conviction
issued either before or after the coming into force of the provisions
of the Prevention and Suppression of Money Laundering Activities
(Amendment) Law of 2018, from a court of a foreign country which
leads to the deprivation of property and does not constitute a crim-
inal sanction, to the extent that it is ordered by the court of a foreign
country in relation to a criminal offence, provided it has been proven
that the property relating to the order constitutes proceeds.
(b) restraint orders and orders for the seizure of property made tempo-
rarily for the purposes of future confiscation of proceeds and
instrumentalities;
(c) any order which the Council of Ministers may, by notification published
in the Official Gazette of the Republic, wish to include in the term “for-
eign order.”
Procedure for the enforcement of external orders.
38. —(1) The request for enforcement shall be submitted by or on behalf of a
foreign country to the Ministry of Justice and Public Order which, if satis-
fied that the request comes from a foreign country and concerns a foreign
order within the meaning of this Part, shall thereafter transmit the request
to the Unit which submits it to the court, if the Unit considers that the
requirements of this law are met.
(2) Subject to the provisions of subsection (3), the court, after a request of a
foreign country is transmitted to it, shall register the foreign order for the
purpose of its enforcement.
(3) The court shall register an external order, if satisfied that—
Appendix C | 107
(a) At the time of registration the external order was in force and enforce-
able and no appeal is pending against the said order;
(b) in the event where the foreign order relating to the confiscation of prop-
erty was issued upon conviction of the accused in his absence, he was
notified of the relevant proceedings in the country of issuance of the
foreign order to be able to appear and present his position and
opinions;
in the event where the foreign order relating to the freezing of property
(b1)
was issued in the absence of the accused or the suspect, he was notified
of the relevant proceedings in the country of issuance of the foreign
order to be able to appear and present his position and opinions;
(c) the enforcement of the order would not be contrary to the interests of
justice of the Republic;
(d) the grounds for refusal of co-operation mentioned in the International
Conventions or Bilateral do not concur.
(4) The Court, after the registration of the foreign order, issues directions that
notification be given to all persons affected by the order.
(5) The provisions of paragraphs (a), (b), (c) and (d) of subsection (7) of section
43C apply by analogy in the case of a Court order for registration and execu-
tion of a restraint and seizure order issued pursuant to the provisions of the
present section.
(6) Subject to the provisions of the present section, the rights of bona fide third
parties are safeguarded.
Transmission to a foreign country of an order issued on the basis of the provi-
sions of this law.
38. A. Any restraint, charging or confiscation order issued, on the basis of the
provisions of this law by a Court of the Republic of Cyprus following an
application of the Attorney-General, which relates to property situated
aboard, it is transmitted by the Unit for execution and/or service to the com-
petent authorities of the foreign country, through the Ministry of Justice
and Public Order.
Effect of registration.
39. –(1) Subject to the provisions of subsection (2) of this section, a foreign
order registered by virtue of section 38 (Procedure for the enforcement of
foreign orders) shall become enforceable as if the order had been made by a
competent court of the Republic under this Law.
(2) The enforcement of the order may be subject to a condition of the foreign
country that the penalty of imprisonment or other deprivation of liberty, in
case there is compliance with the order, shall not be imposed.
(3) Where the foreign order concerns the confiscation of proceeds or property,
the proceeds or property may, after the enforcement of the said order, be
distributed among the competent authorities of the foreign country and the
Republic of Cyprus.
108 | Orders without Borders
(4) In the event of registration of a confiscation order, this is executed by the
Unit, if within six (6) weeks from the date the persons affected by the order
received notification in accordance with section 38(4), the said persons took
no action for the cancellation or the setting aside of the registration order:
Provided that, in the event it is not possible to provide the notification
mentioned in section 38 (4) or the accused or the third person in the posses-
sion of whom the proceeds are held cannot be located, despite making rea-
sonable efforts, the confiscation order is executed immediately by the Unit.
Cancellation of registration.
40. —(1) The court shall cancel the registration of a foreign order if it appears to
the court that the order has been complied with.
(a) by the payment of the amount due under the order; or
(b) in any other way that may be provided for under the legislation of a
foreign country.
(2) The court may cancel the registration of a restraint order if, within a reason-
able period of time, the criminal proceedings have not been initiated or there
was no progress in the investigation of the criminal case which could lead to
criminal proceedings during which a confiscation order may be issued.
(3) In the event that an application for cancellation of the registration of a
restraint order pursuant to the provisions of subsection (2) is submitted the
foreign country which issued the order is notified in advance, and is permit-
ted to submit its comments.
External order shall be binding.
41. —(1) A foreign order may be amended or revised only by a court or any other
competent authority of the foreign country which made the order.
(2) The court, when exercising the powers conferred upon it by section 39
(Effect of registration) as well as other powers in respect of the execution of
a foreign order, shall be bound by the findings as to the facts in so far as they
are stated in the conviction or decision of a court of the foreign country or in
so far as such conviction or judicial decision is implicitly based on them.
External order shall be binding.
Amount of the order.
42. —(1) Where in the foreign order there is a reference to a sum of money to be
received in the currency of another country, this amount shall be converted
into the currency of the Republic at the rate of exchange ruling at the time
the request for registration was made.
(2) Under no circumstances shall the total value of the confiscated property
exceed the sum of money to be paid which is referred to in the foreign order.
Implementation of the provisions of this law in foreign orders.
43. —(1) Subsections (7), (8), (10), (11) of section 14, subsections (9) and (10) of
section 15 and sections 17, 18, 19, 20, 22 and 23 shall also apply in cases
foreign orders subject to any amendments or limitations that the Council
of
Appendix C | 109
of Ministers may wish to prescribe by regulations made under this
Implementation of the provisions of this law in foreign orders.
(2) The Council of Ministers may include in the Regulations any other provision
it considers necessary for the better implementation of this Part and in par-
ticular anything relating-
(a) to the proof of any matter or thing;
(b) to the circumstances which in any foreign country may be considered as
constituting the commencement or conclusion of procedures for the
making of an external order.
(3) Where on the request of or on behalf of a foreign country the court is satis-
fied that proceedings have been instituted but not concluded in this country
during which a foreign order may be made, the court shall make a restraint
or charging order by applying sections 14 and 15 of this Law.
(3A) Subject to the provisions of section 72 A, in the event that the Court cancels
a restraint or charging order issued pursuant to the provisions of section 14
or section 15, the property which is the subject matter of the order is
released completely, to the extent possible without reducing or affecting its
value or amount in any way, for the benefit of the person in whose name it
is held.
(4) The application of this section does not depend on the issue of Regulations
and until such Regulations are issued, the sections referred in paragraph (1)
will apply without any amendments or limitations.
FRANCE
Code of criminal procedure
Book V: Enforcement Procedures
Title I: Enforcement of Criminal Sentences
Chapter III: International cooperation in the enforcement of confiscation
orders
Section 2: Enforcement of confiscation orders issued by foreign judicial
authorities
713-36
In the absence of an international convention providing otherwise, Articles 713-
37 to 713-40 are applicable to the enforcement of confiscation orders issued by
foreign judicial authorities, aimed at the confiscation of movable or immovable
property of any kind that was used or intended to be used to commit the offence
or that appears to be the direct or indirect proceeds thereof, as well as any prop-
erty the value of which corresponds to the proceeds of the offence.
713-37
Without prejudice to the application of Article 694-4, the execution of the con-
fiscation shall be refused;
110 | Orders without Borders
1. If the facts at the origin of the request do not constitute an offence under
French law;
2. If the property to which it relates is not subject to confiscation under French
law;
3. If the foreign decision was pronounced under conditions that do not offer
sufficient guarantees with regard to the protection of individual liberties and
the rights of the defense;
4. If it is established that the foreign decision was issued for the purpose of pros-
ecuting or convicting a person because of his or her sex, race, religion, ethnic
origin, nationality, language, political opinions or sexual orientation or gen-
der identity;
5. If the French Public Prosecutor’s Office had decided not to prosecute the acts
for which the confiscation was ordered by the foreign court, or if these acts
have already been the object of a final judgement by the French judicial
authorities or by those of a State other than the requesting State, provided, in
the event of a conviction, that the sentence has been served, is being served or
can no longer be reduced to execution under the laws of the sentencing State;
6. If it relates to a political offence.
713-38
The execution of the confiscation ordered by a foreign judicial authority in appli-
cation of article 713-36 is authorized by the criminal court, at the request of the
public prosecutor.
Enforcement is authorized on condition that the foreign decision is final and
enforceable under the law of the requesting State.
The authorization of enforcement may not have the effect of infringing rights
lawfully established in favor of third parties, in application of French law, over
property whose confiscation was ordered by the foreign decision. However, if
this decision contains provisions relating to the rights of third parties, it is bind-
ing on the French courts unless the third parties have not been able to assert
their rights before the foreign court under conditions analogous to those pro-
vided for by French law.
Refusal to authorize enforcement of the confiscation order issued by the foreign
court automatically results in the release of the seizure. The same applies when
proceedings initiated abroad have ended or have not led to the confiscation of
the seized property.
713-39
ommission,
If it deems it useful, the criminal court hears, if necessary by rogatory c
the owner of the seized property, the convicted person and any person having
rights over the property that was the subject of the foreign confiscation order.
The persons mentioned in the preceding paragraph may be represented by an
attorney.
Appendix C | 111
The criminal court is bound by the findings of fact of the foreign decision. If these
findings are insufficient, it may request, by letter rogatory, the foreign authority
that issued the decision to provide, within a period of time that it determines, the
necessary additional information.
713-40
The enforcement on the territory of the Republic of a confiscation order issued
by a foreign court entails the transfer to the French State of ownership of the
confiscated property, unless otherwise agreed with the requesting State.
The property thus confiscated may be sold in accordance with the provisions of
the Code of State Property.
The costs of enforcing the confiscation order are deducted from the total amount
recovered.
The sums of money recovered and the proceeds from the sale of the confiscated
property, after deduction of the costs of enforcement, are vested in the French
State when this amount is less than €10,000 and vested half in the French State
and half in the requesting State in other cases.
If the foreign order provides for value confiscation, the order authorizing its
enforcement renders the French State a creditor of the obligation to pay the cor-
responding sum of money. In the event of non-payment, the State has its claim
recovered from any property available for this purpose. The amount recovered,
after deduction of all costs, shall be shared in accordance with the rules provided
for in this Article.
713-41
For the application of the present section, the competent criminal court is that of
the location of one of the assets that are the object of the request or, failing that,
the criminal court of Paris.
GERMANY
Act on International Cooperation in Criminal Matters
Part IV.
Assistance through Enforcement of Foreign Judgments
Section 48
Principle
For criminal proceedings assistance may be provided through enforcement of a
penalty or any other sanction imposed with final and binding force in a foreign
country. Part IV of this Law shall also apply to requests for the enforcement of
an order for confiscation or deprivation, made by a court exercising other than
criminal jurisdiction in the requesting State if the order is based on a punishable
offence.
112 | Orders without Borders
Section 49
Additional Prerequisites for Admissibility of Assistance
(1) The enforcement shall not be admissible unless
1. a competent authority of the foreign State submitting the complete, legally
binding and enforceable decision has requested it;
2. in the proceedings on which the foreign decision is based the convicted per-
son had an opportunity to be heard and to present an adequate defense, and
the sanction has been imposed by an independent court or, in the case of a
fine, was imposed by an authority whose decision may be appealed to an
independent court;
3. under German law notwithstanding possible procedural obstacles and, if
necessary mutatis mutandis, a criminal penalty, measure of rehabilitation
and incapacitation or a regulatory fine could have been imposed in respect
of the offence on which the foreign judgment is based or, where enforce-
ment of an order for confiscation or deprivation is requested, such an order
could have been made, notwithstanding section 73(1) 2nd sentence of the
German penal code;
4. a decision of the kind mentioned in section 9 no. 1 has been made, unless the
enforcement of an order for confiscation or deprivation is requested and
such an order could be made independently under section 76a of the German
penal code;
5. the statute of limitations for the enforcement under German law has not
lapsed or would not have lapsed mutatis mutandis; the above notwithstand-
ing the enforcement of an order for confiscation or deprivation shall be
admissible if
a) German criminal law does not apply to the offence on which the order
is based or
b) such an order could be made mutatis mutandis by analogous application
of section 76a(2) no. 1 of the German penal code.
(2) If a custodial sanction has been imposed in a foreign State and the convicted
person is located there, enforcement shall not be admitted unless the con-
victed person, after having been advised, consented and his consent was
entered into the record of a court in the requesting State or the consent was
declared before a German consular career official empowered to certify
legally relevant declarations. The consent cannot be revoked.
(3) If German law does not recognize any type of sanction corresponding to the
sanction imposed in the foreign State, enforcement shall not be admissible.
(4) If in the foreign order for confiscation or deprivation a decision has been
made concerning the rights of third parties, it shall be binding unless
a) the third party had not been given sufficient opportunity to defend their
rights, or
b) the decision is incompatible with a German civil court decision issued
in the same matter or
Appendix C | 113
c) the decision relates to third party rights to real estate located on German
territory or to real estate rights; third party rights shall also include pri-
ority notices.
(5) Orders depriving of or suspending a right, or ordering prohibitions or the
loss of a capacity, shall extend to German territory if so provided for in an
international agreement approved by law in accordance with Article 59(2)
of the Basic Law.
Section 50
Subject-Matter Jurisdiction
Jurisdiction regarding the enforceability of a foreign decision shall lie with the
regional court. The public prosecution service at the regional court shall prepare
the decision.
Section 51
Local Jurisdiction
(1) Jurisdiction for the decision regarding the enforceability of a foreign deci-
sion shall be determined by the place of residence of the convicted person.
(2) If the convicted person does not have a permanent place of residence on
German territory, jurisdiction shall be determined by the place where that
person normally lives or, if such a place is not known, by the last place of
residence, otherwise by the place where that person was apprehended, or, if
that person has not been apprehended, where that person was first located.
If the request relates solely to enforcement of an order for confiscation or
deprivation or a fine or a regulatory fine, jurisdiction shall lie with the court
in whose district the object described in the order for confiscation or
deprivation is located, or, if no particular object is specified in the order for
confiscation or deprivation or if a fine or regulatory fine is to be enforced,
jurisdiction shall lie with the court in whose district the convicted person’s
assets are located. If the convicted person has assets in the districts of sev-
eral regional courts jurisdiction shall be determined by which regional court
was first seized of the matter or, if no regional court has been seized of the
matter yet, with that public prosecution office at the regional court which
was first seized of the case.
(3) If jurisdiction cannot be otherwise established, it shall be determined by the
seat of the Federal Government.
Section 52
Preparation of Decision
(1) If the documents submitted are insufficient to permit a determination as to
enforcement, the court shall issue its decision only after the requesting State
has been given an opportunity to submit additional documents.
(2) Section 30(1) 2nd sentence, (2) 2nd and 4th sentences, (3) and section 31(1)
and (4) shall apply mutatis mutandis. If the convicted person is on German
territory, section 30(2) 1st sentence and section 31(2) and (3) shall also apply
mutatis mutandis.
114 | Orders without Borders
(3) In respect of requests for enforcement of foreign orders for confiscation or
deprivation, the convicted person as well as third parties who could, depend-
ing on the circumstances of the case, claim rights to the object, must be given
an opportunity to be heard prior to the decision.
Section 53
Assistance of Counsel
(1) In respect of requests for enforcement of foreign orders for confiscation or
deprivation, the convicted person as well as third parties who could, depend-
ing on the circumstances of the case, claim rights to the object, may avail
themselves of the assistance of counsel at any stage of the proceedings.
(2) If the convicted person did not privately appoint counsel, he shall be
assigned counsel if
1. because of the complexity of the factual and legal situation, the assis-
tance of counsel appears necessary,
2. it is apparent that the convicted person cannot himself adequately pro-
tect his rights or
3. the convicted person is in detention outside German territory and there
are doubts whether he himself can adequately protect his rights.
[…]
(6) The provisions of Chapter 11 of Book 1 of the Code of Criminal Procedure
with the exception of sections 140, 141(1) to (3) and section 142(2) shall apply
mutatis mutandis.
Section 54
Conversion of Foreign Sentence
(1) To the extent that enforcement of the foreign judgment is admissible, it shall
be declared enforceable. The penalty imposed shall at the same time be
converted into a penalty which under German law corresponds most closely
to it. The extent of the penalty to be imposed shall be determined by the
foreign decision; it must, however, not exceed the maximum of the penalty
which could be imposed for the offence under German law. This maximum
shall be substituted with a maximum term of two years’ imprisonment if
under German law the offence is punishable
1. by a term of imprisonment not exceeding two years or
2. sanctionable as a regulatory offence by a regulatory fine yet the foreign
penalty must be converted into a term of imprisonment pursuant to the
2nd sentence above.
In the case of a fine the foreign currency amount shall be converted into
(2)
Euros at the exchange rate applicable on the day of the foreign decision.
Where an order for confiscation or deprivation concerns a specific object
(2a)
the declaration of enforceability shall refer to that object. Instead of a spe-
cific object the declaration can also refer to the monetary amount equal to
the value of the object if
1. the foreign State has made a request to that effect and
Appendix C | 115
2. the conditions of section 76 of the German penal code are fulfilled muta-
tis mutandis.
If the order is defined in terms of monetary value, subsection (2) above shall
apply mutatis mutandis.
(3) When converting a sentence imposed against a juvenile or a young adult the
provisions of the Juvenile Court Act shall apply mutatis mutandis.
(4) Any part of the sentence previously served in the requesting State or a third
State, and any detention served pursuant to section 58, shall be credited
towards the sentence to be determined. If this credit was not taken into
account at the time of the decision about enforcement of the judgment or if
the conditions for a credit arise at a later date, the decision shall be amended.
Section 55
Decision Concerning Enforceability
(1) The regional court shall decide on the enforceability by order. To the extent
that the foreign decision is declared enforceable, that finding and the type
and extent of the penalty to be enforced shall be stated in the order.
(2) The public prosecution service at the regional court, the convicted person
and third parties who when a request for enforcement of an order for con-
fiscation or deprivation was made have claimed rights to the object, may
appeal the order within one week. For the subsequent procedure, section
42 shall apply mutatis mutandis.
(3) Copies of the final orders entered by the court shall be passed on to the
Federal Central Criminal Register. This shall not apply if the penalty imposed
in the foreign judgment has been converted into a fine or if the final order
related solely to an order for confiscation or deprivation. If the foreign deci-
sion is to be entered in the Federal Central Criminal Register the decision
regarding the enforce ability is to be noted in the entry. Ss. 12 to 16 of the
Federal Central Criminal Register Act shall apply mutatis mutandis.
Section 56
Granting Assistance
(1) Legal assistance shall not be granted unless the foreign decision has been
declared enforceable.
(2) The decision regarding legal assistance shall be notified to the Federal
Central Criminal Register. Section 55(3) 2nd to 4th sentences shall apply
mutatis mutandis.
(3) If upon request the enforcement of a fine or a sentence of imprisonment is
granted, the offence may no longer be prosecuted under German law.
(4) The granting of a request for legal assistance seeking the enforcement of an
order for confiscation or deprivation shall be equivalent to a final order and
decision within the meaning of sections 73, 74 of the German penal code.
Section 493 of the Code of Criminal Procedure shall apply mutatis
mutandis.
116 | Orders without Borders
Section 56a
Compensation of the Injured Party
(1) If upon the request of another State a foreign decision ordering confiscation
was executed into the assets of the convicted person within German terri-
tory, the party injured by the offence on which the foreign decision is based
shall receive compensation from public funds if
1. a German or foreign court has issued an enforceable decision awarding
damages against the convicted person or if the latter has declared his
obligation to pay to the injured person in an enforceable document
(title),
2. the title is enforceable within German territory,
3. the injured person shows that the title covers the damages arising from
the offence on which the decision for confiscation is based and
4. the injured person shows that he could not obtain full satisfaction of his
claim from the enforcement of the title.
Compensation shall be awarded in exchange for cession of the claim for damages
to an equal amount.
(2) Compensation shall not be granted if the rights of the injured person under
section 73e(1) 2nd sentence continue to exist.
(3) The amount of compensation shall be limited by the remaining revenue
accruing to German public funds from the enforcement of the confiscation
order into the domestic assets. If several injured parties have filed an appli-
cation under subsection (1) above, their compensation shall be determined
by the sequence of their applications. If several applications are filed on the
same day and the revenue is insufficient to satisfy these persons they shall
receive compensation pro rata according to the amount of the claims for
damages.
(4) The application shall be filed with the competent enforcement authority.
It may be denied if six months have passed since the end of the enforcement
proceedings related to the asset from which compensation could be paid.
The enforcement authority may set appropriate time limits in which the
injured person must adduce the necessary documentation.
(5) The decision of the enforcement authority may be reviewed in the civil
courts.
Section 56b
Agreement on Disposal, Return and Distribution of Seized Assets
(1) The authority in charge of granting assistance may enter into an ad hoc
agreement with the competent authority of the requesting State about the
disposal, return or distribution of the assets resulting from the enforcement
of an order for confiscation or deprivation if reciprocity is assured.
(2) Agreements relating to objects within the meaning of sections 1 and 10 of the
Act on the Protection of Cultural Property require the consent of the
Representative of the Federal Government for Cultural and Media Affairs. If
the consent is refused, section 16(3) 2nd sentence of the Act on the Protection
of Cultural Property* shall apply mutatis mutandis.
Appendix C | 117
Section 57
Enforcement
(1) Upon legal assistance having been granted, the prosecution service having
jurisdiction under s. 50(2) shall execute the enforcement as enforcement
authority. The jurisdiction for the enforcement of a sanction which was con-
verted into a sanction admissible under the Juvenile Court Act shall be
determined by the provisions of the Juvenile Court Act.
(2) The enforcement of the remainder of a custodial sanction may be suspended.
The provisions of the German penal code shall apply mutatis mutandis.
(3) The decision under subsection (2) above and any subsequent decision relat-
ing to suspension shall lie with the court having jurisdiction under section
462a(1) 1st and 2nd sentences of the Code of Criminal Procedure, or, if its
jurisdiction is not established under this provision, with the court having
jurisdiction under section 50.
(4) The enforcement of a converted sanction shall follow, mutatis mutandis, the
provisions applicable to a similar sanction if issued in the Federal Republic
of Germany.
(5) The enforcement related to a monetary value shall cease or be restricted if
the convicted person adduces a document which shows that the amount
was enforced in another State or if the enforcing authority obtains knowl-
edge thereof in another manner.
(6) Enforcement shall not be executed if a competent authority of the request-
ing State provides notice that the conditions for enforcement no longer
exist.
(7) If a foreign order for confiscation was enforced and there is reason to
believe from that order that a person identifiable by name might have a
claim for damages against the convicted person arising from the offence on
which the order was based, that person must without undue delay be
informed by the enforcing authority by simple letter to the last known
address, about his rights under section 56a. The authority may decide not
to send such information if the period under section 56a(4) 2nd sentence
has lapsed.
Section 57a
Costs of enforcement
The convicted person shall bear the costs of the enforcement.
Section 58
Measures Safeguarding Enforcement
(1) If a request for enforcement in the meaning of section 49(1) no. 1 has been
received, or if prior to its receipt it has been so requested by a competent
authority of the requesting State with details of the offence on which the
sentence is based, the time and place when it was committed and as exact
a description of the convicted person as possible, the detention of the
convicted person for the purpose of ensuring enforcement of a sentence
of imprisonment may be ordered provided that on the basis of ascertain-
able facts
118 | Orders without Borders
1. there is reason to believe that he would abscond from the enforcement
proceedings or from enforcement, or
2. if there is a strong reason to believe that in the enforcement proceedings
he would dishonestly obstruct the ascertainment of the truth.
(2) The court having jurisdiction pursuant to s. 50 shall issue the decision
regarding detention. Ss. 17, 18, 20, 23 to 27 shall apply mutatis mutandis. The
higher regional court shall be substituted by the regional court, the public
prosecution service at the higher regional court shall be substituted by the
public prosecution service at the regional court. Decisions of the regional
court shall be subject to appeal.
(3) If the request for enforcement relates to a fine, a regulatory fine or an order
for confiscation or deprivation, or if a competent authority of the requesting
State has, with identification of the person sought, the offence on which the
criminal proceedings are based and the time and place of its commission
prior to receipt of such request, requested preliminary measures for the pur-
pose of ensuring enforcement under ss. 111b to 111d of the Code of Criminal
Procedure, section 67(1) shall apply mutatis mutandis. For the purpose of
the preparation of an order for confiscation or deprivation in the requesting
State, which may also relate to the monetary value, decisions under sections
111b to 111d of the Code of Criminal Procedure may be issued if the condi-
tions of section 66(2) nos. 1 and 2 are fulfilled.
(4) Subsections (1) and (3) above shall not apply if it appears ab initio that
enforcement will not be admissible.
HONG KONG SAR, CHINA
Mutual Legal Assistance in Criminal Matters Ordinance
PART VI
ASSISTANCE IN RELATION TO CONFISCATION, ETC. OF PROCEEDS
OF CRIME
Section 25 Requests by Hong Kong for enforcement of Hong Kong confiscation
order
The Secretary for Justice may request an appropriate authority of a place outside
Hong Kong to make arrangements—(Amended L.N. 362 of 1997)
(a) for the enforcement of a Hong Kong confiscation order; or
(b) where a Hong Kong confiscation order may be made in a proceeding
which has been or is to be instituted in Hong Kong, to restrain dealing
in any property against which the order may be enforced or which may
be available to satisfy the order.
Section 26 Satisfaction of Hong Kong confiscation order
(1) Where, in execution of a Hong Kong confiscation order pursuant to a
request under section 25, property is recovered in a place outside Hong
Kong but the order requires an amount specified therein to be payable,
then that amount shall be treated as reduced by the value of property so
recovered.
Appendix C | 119
(2) For the purposes of this section and without prejudice to the admissibility of
any evidence which may be admissible apart from this subsection, a certifi-
cate purporting to be issued by or on behalf of an appropriate authority of a
place outside Hong Kong stating that property has been recovered there in
execution of a request under section 25, stating the value of the property so
recovered and the date on which it was recovered shall, in any proceedings
in a court in Hong Kong, be admissible as evidence of the facts so stated.
(3) Where the value of property recovered as described in subsection (1) is
expressed in a currency other than that of Hong Kong, the extent to which
the amount payable under the Hong Kong confiscation order is to be reduced
under that subsection shall be calculated on the basis of the exchange rate
prevailing on the date on which the property was recovered in the place
outside Hong Kong concerned.
(4) For the purposes of subsection (3), a certificate purporting to be signed by
the Monetary Authority and stating the exchange rate prevailing on a spec-
ified date shall be admissible in any proceedings as evidence of the facts so
stated.
Section 27 Requests to Hong Kong for enforcement of external confiscation
order
(1) Where a place outside Hong Kong requests the Secretary for Justice to make
arrangements—
(a) for the enforcement of an external confiscation order; or
(b) where an external confiscation order may be made in a proceeding
which has been or is to be instituted in that place, to restrain dealing in
any property against which the order may be enforced or which may be
available to satisfy the order,
then the Secretary for Justice may, in relation to that request, act for that
place under the provisions of Schedule 2.
(2) A request under subsection (1) shall, unless the contrary is shown, be deemed
to constitute the authority of the place outside Hong Kong concerned for the
Secretary for Justice to act on its behalf in any proceedings in the Court of
First Instance under section 28 or under any provision of Schedule 2.
Section 28 Registration of external confiscation orders
(1) On an application made by the Secretary for Justice, the Court of First
Instance may register an external confiscation order if—(Amended L.N. 362
of 1997; 25 of 1998 s. 2)
(a) it is satisfied that at the time of registration the order is in force and not
subject to appeal;
(b) it is satisfied, where any person against whom, or in relation to whose
property, the order is made does not appear in the proceedings, that
he received notice of the proceedings, in accordance with the law of the
place outside Hong Kong concerned, in sufficient time to enable him to
defend them; and
(c) it is of the opinion that enforcing the order in Hong Kong would not be
contrary to the interests of justice.
120 | Orders without Borders
(2) In subsection (1), “appeal” (上訴) includes—
(a) any proceedings by way of discharging or setting aside a judgment; and
(b) an application for a new trial or a stay of execution.
(3) For the purposes of this section, an external confiscation order is subject to
appeal so long as an appeal, further appeal or review is pending against the
order; and for this purpose an appeal, further appeal or review shall be
treated as pending (where one is competent but has not been instituted)
until the expiration of the time prescribed for instituting the appeal, further
appeal or review under the law of the place outside Hong Kong concerned.
(4) The Court of First Instance shall cancel the registration of an external con-
fiscation order if it appears to the Court of First Instance that the order has
been satisfied by—
(a) payment of the amount due under it or by the person against whom it
was made serving imprisonment in default of such payment;
(b) recovery of property specified in it (or the value of such property) or by
the person against whom it was made serving imprisonment in default
of such recovery; or
(c) any other means.
(5) Where an amount of money, if any, payable or remaining to be paid under an
external confiscation order registered in the Court of First Instance under
this section is expressed in a currency other than that of Hong Kong, for the
purpose of any action taken in relation to that order under Schedule 2 the
amount shall be converted into the currency of Hong Kong on the basis of
the exchange rate prevailing on the date of registration of the order.
(6) For the purposes of subsection (5), a certificate purporting to be signed by or
on behalf of the Monetary Authority and stating the exchange rate prevail-
ing on a specified date shall be admissible in any proceedings as evidence of
the facts so stated.
Section 29 Proof of orders and judgments of court in place outside Hong Kong
(1) For the purposes of sections 27 and 28 and Schedule 2—
(a) any order made or judgment given by a court in a place outside Hong
Kong purporting to bear the seal of that court or to be signed by any
person in his capacity as a judge, magistrate or officer of the court, shall
be deemed without further proof to have been duly sealed or, as the case
may be, to have been signed by that person; and
(b) a document, duly certified, which purports to be a copy of any order
made or judgment given by a court in a place outside Hong Kong shall
be deemed without further proof to be a true copy.
(2) A document purporting to be a copy of any order made or judgment given by
a court in a place outside Hong Kong is duly certified for the purpose of
subsection (1)(b) if it purports to be certified by any person in his capacity as
a judge, magistrate or officer of the court in question or by or on behalf of the
appropriate authority of the place outside Hong Kong concerned.
Appendix C | 121
Section 30 Evidence in relation to proceedings and orders in place outside Hong
Kong
(1) For the purposes of sections 27 and 28 and Schedule 2, a certificate purport-
ing to be issued by or on behalf of the appropriate authority of a place out-
side Hong Kong stating—
(a) that a proceeding has been instituted and has not been concluded, or
that a proceeding is to be instituted, in the place;
(b) that an external confiscation order is in force and is not subject to
appeal;
(c) that all or a certain amount of the sum payable under an external confis-
cation order remains unpaid in the place, or that other property recov-
erable under an external confiscation order remains unrecovered in the
place;
(d) that any person has been notified of any proceeding in accordance with
the law of the place; or
(e) that an order (however described) made by a court in the place has the
purpose of—
(i) recovering (including forfeiting and confiscating)—
(A) payments or other rewards received in connection with an
external serious offence or their value;
(B) property derived or realised, directly or indirectly, from pay-
ments or other rewards received in connection with an external
serious offence or the value of such property; or
(C) property used or intended to be used in connection with an
external serious offence or the value of such property; or
(ii) depriving a person of a pecuniary advantage obtained in connection
with an external serious offence, shall, in any proceeding in the Court
of First Instance, be admissible as evidence of the facts so stated.
(2) In any such proceeding a statement contained in a document, duly certified,
which purports to have been received in evidence or to be a copy of a docu-
ment so received, or to set out or summarise evidence given in proceedings
in a court in a place outside Hong Kong, shall be admissible as evidence of
any fact stated therein.
(3) A document is duly certified for the purposes of subsection (2) if it purports
to be certified by any person in his capacity as a judge, magistrate or officer
of the court in the place outside Hong Kong concerned, or by or on behalf of
an appropriate authority of the place, to have been received in evidence or
to be a copy of a document so received or, as the case may be, to be the orig-
inal document containing or summarising the evidence or a true copy of that
document.
(4) Nothing in this section shall prejudice the admission of any evidence,
whether contained in any document or otherwise, which is admissible apart
from this section.
122 | Orders without Borders
INDIA
The Prevention of Money Laundering Act, 2002
60. Attachment, seizure and confiscation, etc., of property in a contracting State
or India.
(1) Where the Director has made an order for attachment of any [property
under section 5 or for freezing under sub-section (1A) of section 17 or where
an Adjudicating Authority has made an order relating to a property under
section 8 or where a Special Court has made an order of confiscation relating
to a property under sub-section (5) or sub-section (6) of section 8], and such
property is suspected to be in a contracting State, the Special Court, on an
application by the Director or the Administrator appointed under sub-
section (1) of section 10, as the case may be, may issue a letter of request to a
court or an authority in the contracting State for execution of such order.
(2) Where a letter of request is received by the Central Government from a
court or an authority in a contracting State requesting [attachment, sei-
zure, freezing or confiscation] of the property in India, derived or
obtained, directly or indirectly, by any person from the commission of an
offence under a corresponding law committed in that contracting State,
the Central Government may forward such letter of request to the
Director, as it thinks fit, for execution in accordance with the provisions
of this Act.
[(2A) Where on closure of the criminal case or conclusion of trial in a criminal
court outside India under the corresponding law of any other country, such
court finds that the offence of money-laundering under the corresponding
law of that country has been committed, the [Special Court] shall, on receipt
of an application from the Director for execution of confiscation under
sub-section (2), order, after giving notice to the affected persons, that such
property involved in money-laundering or which has been used for commis-
sion of the offence of money-laundering stand confiscated to the Central
Government.]
(3) The Director shall, on receipt of a letter of request under section 58 or sec-
tion 59, direct any authority under this Act to take all steps necessary for
tracing and identifying such property.
(4) The steps referred to in sub-section (3) may include any inquiry, investiga-
tion or survey in respect of any person, place, property, assets, documents,
books of account in any bank or public financial institutions or any other
relevant matters.
(5) Any inquiry, investigation or survey referred to in sub-section (4) shall be
carried out by an authority mentioned in sub-section (3) in accordance with
such directions issued in accordance with the provisions of this Act.
(6) The provisions of this Act relating to attachment, adjudication, confiscation
and vesting of property in Central Government contained in Chapter III and
survey, searches and seizures contained in Chapter V shall apply to the
property in respect of which letter of request is received from a court or
contracting State for attachment or confiscation of property.
Appendix C | 123
[(7) When any property in India is confiscated as a result of execution of a
request from a contracting State in accordance with the provisions of this
Act, the Central Government may either return such property to the request-
ing State or compensate that State by disposal of such property on mutually
agreed terms that would take into account deduction for reasonable
expenses incurred in investigation, prosecution or judicial proceedings
leading to the return or disposal of confiscated property.]
ITALY
Code of Criminal Procedure
Title IV
Effects of foreign criminal judgments. Enforcement of Italian criminal
judgments abroad.
Chapter I
Effects of foreign criminal judgments
Article 731
Recognition of foreign criminal judgments pursuant to international
agreements
1. The Minister of Justice, if he/she considers that—pursuant to an interna-
tional agreement—a criminal judgment delivered abroad must be enforced
in the State, or however, that other effects must be attributed to it in the
state, shall request its recognition. To that end, he/she shall forward to the
Prosecutor General at the Court of Appeal in the district where the compe-
tent office of the judicial records is located, a copy of judgment, together
with a translation into the Italian language, along with the acts attached to
it, and with the available documentation and information. He/she shall also
forward a possible request—for enforcement in the [Italian] State—from the
foreign state, or the document by which this state agrees to enforcement.
1-bis. The provisions of paragraph 1 shall also apply in cases of execution of
confiscation and when the relevant measure has been adopted by the for-
eign judicial authority by means of a decision other than a judgment of
conviction.
2. The Prosecutor General shall request the recognition to the Court of
Appeal. Where the necessary conditions are met, he/she shall request that
recognition be also approved for the purposes provided for in Article 12,
paragraph 1, numbers 1), 2) and 3) of the Criminal Code.
Article 733
Requirements for recognition
1. The foreign judgment cannot be recognized if:
a) the judgment has not become final according to the laws of the state in
which it was delivered;
b) the judgment contains provisions contrary to the fundamental princi-
ples of the legal system of the State;
124 | Orders without Borders
c) the judgment was not rendered by an independent and impartial judge
or the defendant was not summoned to appear in court before a foreign
authority or he/she was not given the right to be questioned in a lan-
guage which he/she can understand and be assisted by a lawyer;
d) there are reasonable grounds to believe that considerations concerning
race, religion, gender, nationality, language, political opinions or per-
sonal or social conditions have affected the development or outcome of
the trial;
e) the fact for which the judgment was delivered is not considered to be an
offence under the Italian law;
f ) a final judgment was delivered in the State for the same fact and against
the same person;
g) criminal proceedings are taking place in the State for the same fact and
against the same person.
1-bis. Without prejudice to Article 735-bis, a foreign judgment may not be
recognized for the purposes of confiscation if this involves property whose
confiscation would not be possible under the Italian law, should the same
fact be prosecuted in the State.
Article 734
Decision of the Court of Appeal
1. The Court of Appeal shall decide upon the recognition, complying with the
procedure set out in Article 127, by means of a judgment in which the effects
resulting from it are expressly stated.
2. An appeal against the judgment may be lodged with the Supreme Court
(606) by the Prosecutor General at the Court of Appeal and by the person
concerned.
Article 735
Determination of the penalty and confiscation order
1. When it pronounces the recognition of a foreign judgment for enforcement
purposes, the Court of Appeal shall determine the sentence that must be
executed in the State.
2. To that end, it converts the penalty established in the foreign judgment into
one of the penalties provided for the same act by the Italian law. Such pen-
alty must correspond in nature, as far as possible, to the penalty imposed by
the foreign judgment. The amount of the penalty is determined, taking pos-
sibly into account the criteria provided by the Italian law, on the basis of the
amount fixed in the foreign judgment; however, the amount cannot exceed
the maximum amount provided for the same fact by the Italian law. When
the amount of the penalty is not established in the foreign judgment, the
Court shall determine it on the basis of the criteria set out in Articles 133,
133-bis and 133-ter of the Criminal Code.
3. In no case may the penalty thus determined be more severe than the one
established in the foreign judgment.
Appendix C | 125
4. If in the foreign State where the judgment was delivered, the sentence was
conditionally suspended, the Court shall also order, along with the judgment
of recognition, the suspended sentence under the Criminal Code (Article
163 of the Criminal Code); if in that State the sentenced person was condi-
tionally released, the Court shall replace the foreign measure with parole
(Article 176 of the Criminal Code) and, in determining the requirements for
probation [libertà vigilata], the supervising judge cannot make the overall
treatment—in terms of penalties established in foreign provisions, more
severe.
5. To determine the pecuniary penalty, the amount established in the foreign
judgment shall be converted into the equivalent value in Italian liras at the
exchange rate of the day when the recognition is deliberated.
6. When the Court pronounces recognition for the purpose of execution of a
confiscation (Article 240 of the Criminal Code), the latter shall be ordered
with the same judgment of recognition.
Article 736
Coercive measures
1. At the request of the Prosecutor General, the Court of Appeal—competent
for the recognition of a foreign judgment for the enforcement of a penalty
restricting personal liberty—may order a coercive measure (281-286) against
the sentenced person who is in the State.
2. Where applicable, the provisions of Title I of Book IV on coercive measures
shall be complied with, except for those referred in Article 273.
3. The Presiding Judge of the Court of Appeal shall, as soon as possible and in
any event within five days of execution of the coercive measures, see to the
identification of the person. The provision under Article 717, paragraph 2,
shall apply.
4. The coercive measure, ordered pursuant to this Article, shall be revoked if
since the beginning of its execution six months have elapsed without the
Court of Appeal having pronounced judgment of recognition, or, in the case
of an appeal lodged with the Court of Cassation against that judgment, ten
months have passed without a final judgment of recognition having been
handed down.
5. The revocation and substitution of the coercive measure shall be ordered in
chambers (Article 127) by the Court of Appeal.
6. A copy of the measures issued by the Court shall be communicated and
transmitted, after their execution, to the Prosecutor General, the person
concerned and his/her defense counsel, who may lodge an appeal with the
Court of Cassation for violation of law.
Article 738
Execution following recognition
1. In cases of recognition for the purpose of execution of a foreign judgment,
the penalties and confiscation following recognition shall be executed
126 | Orders without Borders
according to the Italian law. The sentence served in the sentencing State
shall be counted for the purpose of execution.
2. The Prosecutor General at the Court of Appeal which deliberated the recog-
nition shall see to the execution ex officio. This Court shall be—to all intents
and purposes—treated as equivalent to the judge who pronounced the con-
viction in an ordinary criminal proceeding.
Article 739
Ban on extradition and new proceedings
1. In cases of recognition for the purpose of execution of the foreign judgment,
except in the case of execution of a confiscation (240 Criminal Code), the
sentenced person cannot be extradited; neither can he/she be subjected
once again to criminal proceedings in the State for the same offense, even if
the latter is considered differently in terms of nomen iuris, degree or
circumstances (649).
JAPAN
Act on Punishment of Organized Crimes, Control of Crime Proceeds and
Other Matters
Chapter VI
Procedures for International Mutual Assistance in the Execution of
Adjudication of Confiscation and Collection of Equivalent Value and in the
Securance thereof and other Matters
Article 59 Implementation of assistance
When there is a request, with respect to a criminal case in a foreign country
(except for a case involving any act constituting a drug offence or the like pro-
vided for in Paragraph 2 of Article 16 of the Anti-Drug Special Law) from such
foreign country for assistance in the execution of a finally-binding adjudication
of confiscation or collection of equivalent value or in the securance of property
for the purpose of confiscation or collection of equivalent value, such assistance
may be provided except in any of the following cases:
(1) when the act involving the offence for which assistance is requested
(Such term means an offence which is alleged to have been committed
in the request for the assistance. The same shall apply hereinafter in this
paragraph.) does not constitute an offence provided for in the Schedule,
(A) through (D) of Item 2 of Paragraph 2 of Article 2, Item 3 or 4 of that
paragraph, Paragraphs 1 through 3 of Article 9, Article 10 or Article 11,
if committed in Japan
(2) when it is found that, under the laws and regulations of Japan, any pen-
alty may not be imposed for the act involving the offence for which
assistance is requested, if committed in Japan
(3) when any criminal case involving the offence, for which assistance is
requested, is pending before a Japanese court or there is a finally-
binding judgment by a Japanese court for such case
Appendix C | 127
(4) as for assistance in the execution of a finally-binding adjudication of
confiscation or in the securance for the purpose of confiscation, when,
if the act involving the offence for which assistance is requested is com-
mitted in Japan, the property concerned is not the kind of property in
respect of which confiscation or securance of confiscation may be
ordered under the laws and regulations of Japan for the offence for
which assistance is requested
(5) as for assistance in the execution of a finally-binding adjudication of col-
lection of equivalent value or in the securance for the purpose of collec-
tion of equivalent value, when, if the act involving the offence for which
assistance is requested is committed in Japan, such request does not fall
under a case for which adjudication of the requested collection of equiv-
alent value or securance of collection of equivalent value may be made
under the laws and regulations of Japan for the offence for which assis-
tance is requested
(6) when it is found that as for assistance in the execution of a finally-bind-
ing adjudication of confiscation any person who is reasonably deemed
to hold the property concerned or the superficies hypothec or other
right existing on such property, or as for assistance in the execution of a
finally-binding adjudication of collection of equivalent value any person
against whom the adjudication of collection of equivalent value has
been made, was not able to claim such person’s right in the proceeding
in respect of such adjudication for any reason which may not be attrib-
utable to such person
(7) as for assistance in the securance for the purpose of confiscation or col-
lection of equivalent value, when there is no reasonable ground to sus-
pect that the act involving the offence for which assistance is requested
has been committed or when it is found that, if the act is committed in
Japan, there is no ground provided for in Paragraph 1 of Article 22 or
Paragraph 1 of Article 42, except when such request is based on an adju-
dication of securance of confiscation or collection of equivalent value
made by a judge or a court of the requesting country or when such
request is made after the adjudication of confiscation or collection of
equivalent value has become finally binding, or
2. When there is a request referred to in the preceding paragraph with respect
to a criminal case in a foreign country involving an act constituting a drug
offence or the like provided for in Paragraph 2 of Article 16 of the Anti-Drug
Special Law, not pursuant to any treaty, such assistance may be provided
except in cases referred to in Item 8 of the preceding paragraph or in items
of Article 21 of the Anti-Drug Special Law.
3. In assisting the execution of a finally-binding adjudication of confiscation of
any property on which the superficies hypothec or other right exists, such
right shall be left as it stands, if such right is to be left as it stands should such
property be confiscated under the laws and regulations of Japan.
Article 60 Confiscation deemed to be collection of equivalent value
When there is a request for assistance in the execution of a finally-binding
adjudication of confiscation of any property, in lieu of illicit property or property
128 | Orders without Borders
referred to in items of Paragraph 1 or Paragraph 3 of Article 11 of the Anti-Drug
Special Law (hereinafter referred to as “illicit property or the like” in this article)
the value of which is equivalent to that of the illicit property or the like and
which is held by the person to whom such adjudication is addressed, such final-
ly-binding adjudication shall be deemed to be the finally-binding adjudication to
collect equivalent value to such property from such person for the purpose of the
implementation of assistance under this Law. The same shall apply to a request
for assistance in the execution of a finally-binding adjudication of confiscation of
property referred to in items of Paragraph 1 of Article 13 other than immovable
property, movable property or money claim, which is held by the person to
whom such adjudication is addressed.
2. The provisions of the preceding paragraph shall apply mutatis mutandis
to a request for assistance in the securance for the purpose of confisca-
tion of any property, in lieu of illicit property or the like, the value of
which is equivalent to that of the illicit property or the like or in the
securance for the purpose of confiscation of property referred to in items
of Paragraph 1 of Article 13 other than immovable property, movable
property or money claim.
Article 61 Receipt of Request
A request for assistance shall be received by the Minister of Foreign Affairs;
except that the Minister of Justice shall carry out these tasks when a treaty con-
fers the authority to receive requests for assistance on the Minister of Justice or
when the Minister of Foreign Affairs gives consent in an emergency or under
other special circumstances.
2. When the Minister of Justice receives a request for assistance pursuant to
the proviso of the preceding paragraph, the Minister of Justice may ask the
Minister of Foreign Affairs for cooperation necessary for the execution of
matters relating to the assistance.
Article 62 Examination by the Court
When a request for assistance is for the execution of a finally-binding adjudica-
tion of confiscation or collection of equivalent value, a public prosecutor shall
apply to a court for an examination whether such request falls under a case for
which assistance may be provided.
2. If an application for the examination proves to be unlawful as the result of
such examination, the court shall make a decision to dismiss the application,
and if the request falls under a case for which the assistance may be provided
with respect to the whole or a part of the finally-binding adjudication con-
cerned or assistance may not be provided with respect to any part of such
finally-binding adjudication, the court shall make a decision to such effect
respectively.
3. When the court makes a decision that the request falls under a case for
which the assistance may be provided in the execution of the finally-binding
adjudication of confiscation, the court shall concurrently make a decision
that such right shall be left as it stands if there is any right which shall be left
as it stands in accordance with the provisions of Paragraph 2 of Article 59.
Appendix C | 129
4. When the court makes a decision that the request falls under a case for
which the assistance may be provided in the execution of the finally-binding
adjudication of collection of equivalent value the court shall concurrently
specify the sum to be collected in Japanese yen.
5. In making the examination provided for in Paragraph 1 of this article, the
court may not review whether the finally-binding adjudication concerned is
justifiable or not.
6. The court may not make a decision with respect to the examination pro-
vided for in Paragraph 1 of this article that the request falls under a case for
which the assistance may be provided, unless any person enumerated in the
following hereinafter the “interested person” is permitted to intervene in
the proceeding of such examination.
(1) as for assistance in the execution of a finally-binding adjudication of
confiscation, any person reasonably deemed to hold the property con-
cerned or the superficies hypothec or other right existing on such prop-
erty, or the execution creditor or provisional execution creditor if a
decision to commence compulsory auction, attachment pursuant to the
provisions of compulsory execution or provisional attachment has been
made in respect of such property or right before the securance of con-
fiscation is made, or
(2) as for assistance in the execution of a finally-binding adjudication of col-
lection of equivalent value, any person against whom such adjudication
has been made.
7. In making a decision with respect to an application for the examination the
court shall hear opinions of the public prosecutor and any person permitted
to intervene in the proceeding of the review hereinafter referred to as the
(“intervenor”).
8. The court shall hold a hearing at a public courtroom and give the intervenor
an opportunity to be present at such session, if the intervenor expresses the
wish to make an oral presentation of such intervenor’s opinion or if the court
examines any witness or expert. In such case, the intervenor who is unable to
be present shall be deemed to be given an opportunity to be present if such
intervenor is given an opportunity to be represented by an attorney at the
hearing session or to present such intervenor’s opinion in writing.
9. The public prosecutor may be present at the hearing provided for in the
preceding paragraph.
Article 63 Kokoku Appeal
The public prosecutor and the intervenor may lodge a kokoku appeal against a
decision with respect to the application for the review.
2. A special kokoku appeal may be lodged with the Supreme Court against a
decision by a kokoku appeal court if there is a cause provided for in each
item of Article 405 of the Code of Criminal Procedure.
3. The period for a kokoku appeal provided for in the preceding two para-
graphs shall be fourteen days.
130 | Orders without Borders
Article 64 Effect of Decision
When a decision that the request falls under a case for which the assistance may
be provided in the execution of a finally-binding adjudication of confiscation or
collection of equivalent value becomes finally binding, such finally-binding adju-
dication shall be deemed to be a finally-binding adjudication of confiscation or
collection of equivalent value pronounced by a Japanese court for the purpose of
the implementation of assistance.
Article 64-2 (Grant of Property, etc., for Execution to the Requesting
Country, etc.)
When a foreign country that requests assistance in the execution of a final and
unappealable adjudication of confiscation or collection of equivalent value
(referred to as the “requesting country for assistance in execution” in paragraph 3)
requests for grant of the property or money equivalent to the value thereof
pertaining to execution of such assistance (hereinafter in this Article referred to
as executed property, etc.), the whole or part of the executed property, etc., may
be granted.
2. When the Minister of Justice finds it appropriate to grant the whole or part
of executed property, etc., the Minister shall order the Chief Prosecutor of the
district public prosecutors office whom the Minister ordered to take neces-
sary measures for assistance in the execution of the final and unappealable
adjudication of confiscation or collection of equivalent value to retain such
executed property, etc., for the purpose of making the grant.
3. When any executed property, etc., falls under either of the following items,
the Minister of Justice may order the Chief Prosecutor prescribed in the pre-
ceding paragraph to temporarily retain the whole or part of such executed
property, etc.:
(1) In the event that the requesting country for assistance in execution
requests grant of executed property, etc., when the Minister finds it nec-
essary in order to determine whether to accept or decline the request;
or
(2) In the event that the Minister anticipates that the requesting country
for assistance in execution will request grant of executed property, etc.,
when the Minister finds necessary.
Article 65 Revocation of Decision
Upon application by a public prosecutor or an interested person, the court shall,
by a decision, revoke its prior decision that the request falls under a case for
which the assistance may be provided in the execution of a finally-binding
adjudication of confiscation or collection of equivalent value, if such final-
ly-binding adjudication concerned is revoked or otherwise becomes invalid
after such prior decision was made.
2. When a decision of revocation provided for in the preceding paragraph
becomes finally binding, compensation shall be made pursuant to the provi-
sions for compensation for the execution of confiscation or collection of
equivalent value provided for in the Criminal Compensation Law.
3. The provisions of Article 63 shall apply mutatis mutandis to a decision with
respect to an application provided for in Paragraph 1 of this article.
Appendix C | 131
Article 66 Request for securance of confiscation
When a request for assistance is for the securance for the purpose of confisca-
tion, a public prosecutor shall apply to a judge for the proscription of disposition
of the property concerned with a securance order for confiscation. In such case,
the public prosecutor may, if such prosecutor finds it necessary, apply for the
proscription of disposition of the superficies hypothec or other right existing on
such property with a collateral securance order.
2. After an application for the examination provided for in Paragraph 1 of
Article 62 has been made, disposition concerning securance of confiscation
shall be made by the court to which such application for the examination has
been made.
Article 67 Request for securance of collection of equivalent value
When a request for assistance is for the securance for the purpose of collection
of equivalent value, a public prosecutor shall apply to a judge to proscribe a per-
son, against whom an adjudication for collection of equivalent value is to be
made, to dispose of such person’s property with a securance order for collection
of equivalent value.
2. The provisions of Paragraph 2 of the preceding article shall apply mutatis
mutandis to disposition concerning securance of collection of equivalent
value.
Article 68 Duration of securance before the institution of prosecution
When a request for assistance in the execution of securance for the purpose of
confiscation or collection of equivalent value is made with respect to a case for
which a prosecution has not been instituted, a securance order for confiscation
or collection of equivalent value shall become invalid unless it shall be notified
from the requesting country within 45 days from the date of issuance of such
order that a prosecution has been instituted for such case.
2. When the requesting country makes a notification containing an explana-
tion that the prosecution may not be instituted within the period provided
for in the preceding paragraph for a compelling reason the court may upon
application by a public prosecutor renew the duration of the securance not
more than thirty days. The same shall apply when a notification is made
with an explanation that the prosecution may not be instituted within the
renewed period for a certain cause beyond the control of the requesting
country.
Article 69 Revocation of procedures
When there is a notification to withdraw the request for assistance, a public
prosecutor shall promptly revoke the application for the examination or for
securance of confiscation or collection of equivalent value, or apply for the
revocation of the securance order for confiscation or collection of equivalent
value.
2. When the application provided for in the preceding paragraph is made, the
court or the judge shall promptly revoke the securance order for confisca-
tion or collection of equivalent value.
132 | Orders without Borders
Article 70 Examination of facts
When it is necessary for the examination or disposition concerning securance of
confiscation or collection of equivalent value under the provisions of this chap-
ter, a court or a judge may examine the facts. In such case, the court or the judge
may examine a witness, carry out inspection, or order an expert examination,
interpreting or translation.
Article 71 Disposition by public prosecutor
When a public prosecutor deems it necessary for an application for the secur-
ance of confiscation or collection of equivalent value or for the execution of a
securance order for confiscation or collection of equivalent value under the pro-
visions of the chapter, the public prosecutor may request the appearance of any
person concerned and interrogate such person, request an expert to make an
examination, carry out voluntary inspection, request the owner, possessor or
custodian of any document or other thing to submit it, request a public office or
a public or private organization to make reports on necessary matters, or carry
out seizure, search or inspection upon a warrant issued by a judge.
2. The public prosecutor may have a public prosecutor’s assistant officer make
any disposition provided for in the preceding paragraph.
Article 72 Jurisdiction of court
Any application for the examination, for the securance of confiscation or collec-
tion of equivalent value or for the issuance of a warrant under the provisions of
this chapter shall be made to a court or a judge having jurisdiction over the place
where a public prosecutors office to which the public prosecutor making such
application belongs is located.
KAZAKHSTAN
Criminal Procedure Code
Chapter 62. Recognition and enforcement of judgments and decisions
of foreign courts
Article 601. Judgments and decisions of foreign courts, recognized in the
Republic of Kazakhstan
1. In accordance with the procedure provided by this Code and the interna-
tional treaties of the Republic of Kazakhstan, the judgments and decisions of
foreign courts may be recognized and enforced in the Republic of Kazakhstan
in the following cases:
1) upon receipt of a citizen of the Republic of Kazakhstan, who was con-
victed to imprisonment in a foreign state for serving the sentence;
2) upon receipt of a citizen of the Republic of Kazakhstan, who committed
in a foreign state a socially dangerous act in a state of insanity, for which
there is a court decision of a foreign state on the application to him (her)
of compulsory medical measures, for compulsory treatment;
Appendix C | 133
3) in respect of a person, extradited to the Republic of Kazakhstan, who
was convicted by a foreign court and did not serve the sentence;
4) in respect of a person, convicted by a foreign court, and the Republic of
Kazakhstan refused the extradition (extradition) of which to a foreign
state;
5) when deciding on the confiscation of property located on the territory
of the Republic of Kazakhstan, or its monetary equivalent;
6) other cases stipulated by the international treaties of the Republic of
Kazakhstan.
2. The decision on the recognition and enforcement of the judgment of the
foreign courts in a part of the civil claim shall be resolved in accordance with
the Civil Procedure Code of the Republic of Kazakhstan.
Article 607. Consideration of an application for admission of a citizen of the
Republic of Kazakhstan to serve the sentence or carrying out compulsory treat-
ment, as well as the recognition and enforcement of the sentence or decision of
the foreign court
1. The citizens of the Republic of Kazakhstan, referred to in Article 602 of this
Code, their legal representatives or close relatives, as well as the competent
authorities of a foreign state with the consent of the convicted person or the
person, applied to the compulsory medical measures, and in case of his (her)
inability to free will—with the consent of his (her) legal representative may
apply to the Procurator General of the Republic of Kazakhstan with the
request of serving by the convicted person of a sentence or compulsory
treatment in the Republic of Kazakhstan.
2. The competent institution of a foreign state may apply to the Procurator
General of the Republic of Kazakhstan with the request for the recognition
and enforcement of the sentence or decision of a foreign court in relation to
the persons, referred to in paragraphs 3) and 4) of the first part of Article 601
of this Code, as well as the judicial acts providing for the confiscation of
property, located on the territory of the Republic of Kazakhstan or its cash
equivalent.
3. After the request to the Procurator General of the Republic of Kazakhstan
for admission of the citizens of the Republic of Kazakhstan referred to in
Article 602 of this Code, for further punishment or compulsory treatment in
the Republic of Kazakhstan and confirmation of the citizenship of the
Republic of Kazakhstan of that person, the General Procurator’s Office of
the Republic of Kazakhstan requests from the appropriate authority of a for-
eign state the documents required for resolving the issue on its merits.
4. In the case of approval of the requests, provided for in the first, second parts
of this Article, the Procurator General of the Republic of Kazakhstan shall
submit a representation on the recognition and enforcement of the sentence
or decision of a foreign court to the district or equivalent court in the place
of residence of persons against whom the sentence or decision of a foreign
court is made. In the absence of these persons permanent residence, the rep-
resentation shall be made to the district court at the location of the General
Procurator’s Office of the Republic of Kazakhstan.
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Article 608. The order for resolving by the court the issues, related to the execu-
tion of the sentence or decision of a foreign court
1. The representation of the Procurator General of the Republic of Kazakhstan
is considered by the judge at the hearing in the absence of the convicted
person or the person, applied to the compulsory medical measures, in the
manner and within the timeframe established by this Code for resolving the
issues related to the execution of the sentence.
2. The decision of the judge on the execution of the sentence or decision of a
foreign court shall indicate:
1) the name of the court of a foreign state, the time and place of sentencing
or ruling on the application of compulsory medical measures;
2) the information about the last place of residence in the Republic of
Kazakhstan of the convicted person or the person, applied to the com-
pulsory medical measures, the place of work and occupation before the
conviction or the application of compulsory medical measures;
3) the qualification of the criminal offence, in the commission of which the
person is found guilty, and on the basis of which criminal law he (she) is
convicted or the compulsory medical measures are applied;
4) the Criminal law of the Republic of Kazakhstan providing for the liabil-
ity for a criminal offence, committed by the convicted person or the per-
son, applied to the compulsory medical measures;
5) the type and term of the punishment (primary and secondary), the start
date and the end of the punishment, which the convicted person shall
serve in the Republic of Kazakhstan; the type of penal institution, the
order of compensation for the claim; the kind of compulsory medical
measures, which shall apply in relation to a person in compulsory
treatment.
3. If under the law of the Republic of Kazakhstan the time limit of imprison-
ment for this crime is less than fixed by the sentence of the foreign court, the
judge shall determine the maximum term of imprisonment for the commis-
sion of the offence under the Criminal Code of the Republic of Kazakhstan.
If the imprisonment is not provided as a punishment, the judge shall deter-
mine another punishment within the proportion established by the Criminal
Code of the Republic of Kazakhstan for this criminal offence and most rele-
vant to the fixed by the sentence of the foreign court.
4. If the sentence relates to two or more acts, not all of which are recognized as
crimes in the Republic of Kazakhstan, the judge shall determine what part
of the punishment imposed by the sentence of the foreign court, applies to
the act that constitutes a crime.
5. When considering the issue of execution of the punishment, the court may
at the same time decide on the execution of the sentence of the foreign court
in part of the civil claim and procedural costs if there is a corresponding
request.
6. In case of cancellation or changes in the sentence or decision of the foreign
court or the use of amnesty or pardon, issued in a foreign state or in the
Republic of Kazakhstan, to the person serving the punishment or undergo-
ing compulsory treatment in the Republic of Kazakhstan, the issues of
Appendix C | 135
execution of the revised sentence or decision of the court, as well as the use
of amnesty or pardon shall be resolved by the rules of this Article.
7. If when considering the representation of the Procurator General of the
Republic of Kazakhstan, the court concludes that the act for which the per-
son is convicted or applied to the compulsory medical measures, is not a
crime under the legislation of the Republic of Kazakhstan, or the sentence
or the decision of the foreign court may not be executed due to the expira-
tion of the statute of limitations, as well as on other grounds stipulated by the
legislation of the Republic of Kazakhstan or international treaties of the
Republic of Kazakhstan, he (she) shall make a decision to refuse to recog-
nize the sentence or decision of the foreign court.
8. The decision of the court may be appealed or protested in the manner and
terms, established by this Code for the revision of the court decision, which
entered into force.
Article 610. Notification of change or cancellation of the sentence or decision
of the foreign court
1. Any issues, relating to the revision of the sentence or decision of the foreign
court shall be settled by the court of the state, where the sentence or deci-
sion is made.
2. In case of change or cancellation of the sentence or decision of the foreign
court, the issue of execution of this decision is considered in the manner
provided by this Code.
3. If the sentence or decision of the foreign court is canceled, and a new pre-
trial investigation or a new trial is assigned, the issue of the subsequent
criminal proceedings shall be decided by the General Procurator’s Office of
the Republic of Kazakhstan in accordance with this Code.
LATVIA
[The following excerpts reflect the status of Latvian legislation in October 2020.]
Criminal Procedure Law
Division Sixteen
Recognition of Judgments of a Foreign State and Execution of Punishments
Chapter 69
General Provisions for the Execution in Latvia of a Punishment Imposed in
a Foreign State
Section 749. Content of the Execution of a Punishment Imposed in a Foreign
State
(1) Execution of a punishment imposed in a foreign state shall be the recognition
of the validity and lawfulness of such punishment on an uncontested basis and
execution according to the same procedures as in case where the punishment
would have been specified in criminal proceedings taking place in Latvia.
(2) Recognition of the validity and lawfulness of a punishment imposed in a for-
eign state shall not preclude the co-ordination thereof with the sanction
provided for in The Criminal Law for the same offence.
136 | Orders without Borders
Section 750. Conditions for the Execution of a Punishment Imposed in a Foreign
State
(1) Execution of a punishment imposed in a foreign state shall be possible if:
1) the foreign state has submitted a request regarding the execution of the
punishment imposed therein;
2) the punishment in the foreign state has been specified by an adjudica-
tion that has entered into effect in terminated criminal proceedings;
3) the limitation period has not set it for the execution of the punishment
in the foreign state or Latvia;
4) the person convicted in the foreign state is a Latvian citizen or his or her
permanent place of residence is in Latvia, or he or she is serving a pun-
ishment related to deprivation of liberty in Latvia and has been con-
victed with deprivation of liberty or arrest in a foreign state, which
could be executed right after serving of the punishment imposed in
Latvia;
5) the foreign state would not be able to execute the punishment, even by
requesting extradition of the person;
6) execution of the punishment of Latvia would promote resocialization of
the person convicted in the foreign state.
(2) Execution of a fine or confiscation of property imposed in a foreign state
shall be possible also if the person convicted in the foreign state owns a
property or has other income in Latvia.
Section 751. Reasons for Refusal of the Execution in Latvia of a Punishment
Imposed in a Foreign State
A request regarding the execution of a punishment imposed in a foreign state
may be refused if:
1) there is a reason to believe that the punishment has been imposed because
of race, religious affiliation, nationality, gender or political views of the
person, or if the offence may be deemed political or military;
2) execution of the punishment would be in contradiction with interna-
tional commitments of Latvia to another state;
3) execution of the punishment may harm the sovereignty, security, public
order or other essential interests of the State of Latvia;
4) a person convicted in a foreign state for the same offence could not be
punished in accordance with The Criminal Law;
5) execution of the punishment would be in contradiction with the basic
principles of the legal system of Latvia;
6) criminal proceedings regarding the same offence, for which a punish-
ment has been imposed in a foreign state, are taking place in Latvia;
7) execution of the punishment in Latvia is not possible;
8) the offence has not been committed in the foreign state, which imposed
the punishment to be executed;
9) expenditure for execution of the punishment are not commensurate
with the seriousness of and harm caused by the criminal offence;
Appendix C | 137
10) the foreign state itself is able to execute the judgment;
11) Latvia does not have a contract with the foreign state regarding the
execution of punishments imposed in another state.
Section 752. Time Limitations for Execution of a Punishment
(1) Execution of a punishment imposed in a foreign state shall be limited by
both the time limitations for the execution of a punishment provided for in
The Criminal Law and the time limitations for the execution of a punish-
ment provided for in laws of the relevant foreign state.
(2) Circumstances affecting the running of limitation periods in a foreign state
shall also affect it to the same extent in Latvia.
Section 753. Inadmissibility of Double Trial
A punishment imposed in a foreign state shall not be executed in Latvia, if a per-
son convicted in the foreign state has served a punishment imposed in Latvia or
a third country for the same offence, has been convicted without determination
of a punishment, has been released by amnesty or clemency or has been acquit-
ted for the same offence.
Section 754. Procedures for Examination of a Request Regarding Execution of a
Punishment Imposed in a Foreign State
(1) Having received a request of a foreign state regarding the execution of a
punishment imposed therein, the Ministry of Justice shall, within 10 days,
but if the amount of materials is particularly large within 30 days, verify
whether all the necessary materials have been received.
(2) If translation of documents is necessary, verification of a request of a foreign
state shall take place within the time periods referred to in Paragraph one of
this Section after receipt of translation.
(3) If several requests of foreign states regarding the execution of a punishment
imposed in such foreign states in relation to the same person or property
have been received concurrently, the Ministry of Justice shall combine the
verification of such requests in one process.
(4) Upon a request verification materials shall be sent to a district (city) court
for taking of a decision on recognition of the judgment of a foreign state and
execution of a punishment in Latvia. The request shall be examined by a
judge according to the place of residence of a convicted person in a foreign
state. If the place of residence of the person is unknown, the request of the
foreign state shall be examined by a judge of a district (city) court according
to the location of the Ministry of Justice.
(5) If information provided by the foreign state is insufficient, the Ministry of
Justice or a court with the intermediation of the Ministry of Justice may
request additional information or documents, specifying a deadline for the
submission thereof.
Section 755. Examination of a Request Regarding Execution of a Punishment
Imposed in a Foreign State in the Absence of a Person (in absentia)
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(1) If a judgment has been rendered in a foreign state, except a European Union
Member State, in the absence of a person (in absentia) and Latvia has a con-
tract with the foreign state regarding the execution of a punishment imposed
in the absence of a person (in absentia), prior to taking a decision on recog-
nition of a judgment of a foreign state and execution of a punishment in
Latvia a court shall issue a notification to the person convicted in the rele-
vant foreign state, indicating that:
1) the request regarding the execution of a punishment has been submit-
ted by a foreign state, with which Latvia has a contract regarding the
execution of a punishment imposed in the absence of a person
(in absentia);
2) the person convicted in the foreign state has the right, within 30 days
from the day of receipt of the notification, to submit an application
regarding examination in his or her presence in the relevant foreign
state or Latvia of the case adjudicated in his or her absence
(in absentia);
3) the punishment will be conformed and executed in accordance with
general procedures, if examination of the case in the presence of the
person convicted in the foreign state or Latvia is not requested within
30 days or if the application is rejected due to nonarrival of the person.
(2) The person shall submit the application provided for in Paragraph one of
this Section to a court. If the state of examination has not been indicated in
the application, it shall be examined in Latvia.
(3) The Ministry of Justice shall send a copy of the notification to the relevant
state with a note regarding issuance of the notification to the person con-
victed in the foreign state.
Section 756. Submission of an Application of a Person Convicted in a Foreign
State in his or her Absence (in absentia) to the Relevant Foreign State
(1) If a person convicted in a foreign state in his or her absence (in absentia)
submits an application within the specified deadline, requesting re-
examination of the case in his or her presence in the foreign state, which
imposed the punishment, a court shall postpone examination of the request
of such state regarding the execution of a punishment.
(2) If the application referred to in Paragraph one of this Section has been can-
celled, recognised invalid or unacceptable, a court shall, after receipt of
information, examine a request regarding the execution of a punishment
imposed in the relevant foreign state according to the same procedures as if
the case was examined in the presence of the person.
(3) If as a result of examining the application a judgment of conviction is
repealed, a court with the intermediation of the Ministry of Justice shall
send the request of the foreign state regarding the execution of a punish-
ment undecided to the requesting state.
(4) If the person convicted in a foreign state in his or her absence (in absentia)
is under temporary arrest upon the request of the foreign state, such person
shall be transferred to the relevant foreign state for examination of an appli-
cation in his or her presence. In such case the state which imposed the
Appendix C | 139
punishment shall decide on the matter of further holding under arrest of
such person.
(5) If the person convicted in a foreign state in his or her absence (in absentia)
who has submitted an application to the state which imposed the punish-
ment has been placed under arrest due to other criminal proceedings or is
serving a punishment for another offence, a court with the intermediation of
the Ministry of Justice shall inform the foreign state thereof and assign the
State Police to co-ordinate the time when the person may be transferred to
the relevant foreign state for participation in examination of the
application.
(6) If the law of the foreign state allows it, the person convicted in such foreign
state in his or her absence (in absentia) may participate in examination of
the application, using technical means. Participation, using technical means,
shall not affect the procedural rights of the person convicted in the foreign
state in the process taking place in such foreign state. If the person has
invited an advocate of the foreign state for receipt of legal assistance, the
advocate has the right to meet with the person in confidential conditions in
Latvia and to participate in examination of the application, using technical
means, together with the client.
(7) Invitation of an advocate of the foreign state shall not affect the right of the
person convicted in such foreign state in his or her absence (in absentia) to
legal assistance in Latvia.
Section 757. Submission of an Application of a Person Convicted in a Foreign
State in his or her Absence (in absentia) to Latvia and Procedures for
Examination Thereof
(1) If a person convicted in a foreign state in his or her absence (in absentia)
requests examination of an application in a court of Latvia, the Ministry of
Justice shall, without delay after receipt of information from the court,
inform the relevant foreign state thereof.
(2) A summons to a court in a foreign state shall be issued to the person con-
victed in the foreign state in his or her absence (in absentia) not more than
21 days prior to the day of examination of the application, unless such person
has expressed an explicit consent for the application of a shorter period of
time.
(3) As a result of examination a court shall take one of the following decisions:
1) on rejection of the application due to non-arrival of the person and
recognition of the judgment of the foreign state and execution of the
punishment in Latvia;
2) on allowing the application of the person convicted in the foreign state
in his or her absence (in absentia).
(4) Having taken the decision referred to in Paragraph three, Clause 2 of this
Section, a court shall send it to the Ministry of Justice, which shall request
the foreign state to send the necessary materials related to adjudication of
the offence at the disposal of the foreign state, specifying the deadline by
which materials should be sent. Having received the materials of the for-
eign state, the Ministry of Justice shall ensure their translation and assess
140 | Orders without Borders
them in accordance with the conditions and procedures referred to in
Chapter 67 of this Law. If the person is placed under temporary arrest, the
procedural time periods referred to in Section 732 of this Law shall be
applied.
(5) The evidence obtained in accordance with the procedures specified in the
foreign state shall be assessed in the same way as the evidence obtained in
Latvia.
Section 759. Recognition and Execution of a Punishment Imposed in a Foreign
State
(1) A judge of a district (city) court shall, within 30 days, examine a request of a
foreign state regarding the execution of a punishment imposed in the for-
eign state in a written procedure and, after evaluating the conditions and
reasons for refusal, take one of the following decisions:
1) on consent to recognise the judgment and execute the punishment
imposed in the foreign state;
2) on refusal to recognise the judgment and execute the punishment
imposed in the foreign state.
(2) If an adjudication of a foreign state applies to two or more offences, not all
of which are offences, for which execution of the punishment is possible in
Latvia, a judge shall request to specify more precisely, which part of the pun-
ishment applies to offences conforming to such requirements.
(3) The decision referred to in Paragraph one of this Section shall not be subject
to appeal, and a judge shall notify the decision taken to the person convicted
in the foreign state and with the intermediation of the Ministry of Justice—
to the foreign state and the person convicted therein, if he or she is in the
foreign state.
Section 760. Determination of a Punishment to be Executed in Latvia
(1) After taking of the decision referred to in Section 759, Paragraph one, Clause
1 of this Law a judge shall determine a punishment to be executed in Latvia
in a written procedure, if a person convicted in a foreign state and a public
prosecutor does not object thereto.
(2) The factual circumstances established in a court adjudication of a foreign
state and the guilt of a person shall be binding to a court of Latvia.
(3) The punishment determined in Latvia shall not deteriorate the condition
of a person convicted in a foreign state, however, it shall conform to the
punishment determined in the relevant foreign state as much as
possible.
(4) Concurrently with a notification regarding the decision referred to in
Section 759, Paragraph one, Clause 1 of this Law a judge shall inform a per-
son convicted in a foreign state and a public prosecutor regarding the right,
within 10 days from the day of receipt of the notification, to submit objec-
tions against the determination of the punishment to be executed in Latvia
in a written procedure, to submit recusation for a judge, to submit an opin-
ion on the punishment to be executed in Latvia, as well as on the day of
availability of the decision.
Appendix C | 141
(5) If a person convicted in a foreign state is serving a punishment of depriva-
tion of liberty in the state that submitted the request, the relevant person
shall be informed regarding the right referred to in Paragraph four of this
Section immediately after transfer thereof to Latvia.
(6) If a person convicted in a foreign state or a public prosecutor has submitted
objections against the determination of the punishment to be executed in
Latvia in a written procedure, a judge shall take a decision in accordance
with the procedures of Section 651 of this Law. If a person convicted in a
foreign state is under arrest in the foreign state or is serving a punishment of
deprivation of liberty in the relevant foreign state, and an issue on determi-
nation of the punishment to be executed in Latvia, which is not related to
deprivation of liberty, is being decided, technical means shall be used for
ensuring of the participation or temporary transfer of the person to Latvia
shall be requested.
(7) A person convicted in a foreign state or a public prosecutor may appeal a
decision of a judge on determination of the punishment to be executed in
Latvia to the Senate of the Supreme Court within 10 days from the day of
availability of the decision in accordance with cassation procedures.
(8) A complaint shall be examined according to the same procedures as a cassa-
tion complaint or protest submitted in criminal proceedings taking place in
Latvia, and in such extent as allowed by the international agreements bind-
ing to Latvia and this Chapter.
(9) If a decision of a judge on determination of the punishment to be executed
in Latvia has not been appealed within the time period specified in Law or a
decision has been appealed and the Senate of the Supreme Court has left it
in effect, the decision shall be executed in accordance with the procedures
referred to in Section 634 of this Law. The request of a foreign state shall be
appended to the decision.
Section 761. Compliance with a Foreign State Judgment in Criminal Proceedings
Taking Place in Latvia
(1) In determining a punishment in criminal proceedings taking place in Latvia
to a person, in relation to whom a foreign state has requested to execute the
punishment in Latvia, the punishment to be executed in Latvia shall
be added to the punishment imposed in the foreign state according to the
norms of The Criminal Law regarding determination of a punishment after
several adjudications.
(2) When classifying offences according to The Criminal Law, an offence, for
which the punishment imposed in the foreign state is being executed, shall
have the same significance as an offence examined in criminal proceedings
taking place in Latvia.
Section 762. Legal Consequences Caused by the Execution in Latvia of a
Punishment Imposed in a Foreign State
(1) Execution of a punishment, which has been imposed in a foreign state,
determined for execution in Latvia shall take place according to the same
procedures as execution of the punishment imposed in criminal proceed-
ings that have taken place in Latvia.
142 | Orders without Borders
(2) Clemency and amnesty acts adopted in Latvia and conditions of early condi-
tional release, as well as decisions of the relevant foreign state on reduction
of the punishment, amnesty or clemency shall apply to a person.
(3) Only the state in which the judgment was rendered has the right to re-exam-
ine the judgment.
(4) Execution of a punishment shall be discontinued and a request of a foreign
state regarding the execution of a punishment shall be cancelled by a deci-
sion taken in the relevant foreign state on revocation of a judgment of
conviction.
(5) A notification of a foreign state on the legal facts provided for in Paragraphs
two and four of this Section shall be received and its execution shall be
organised by the Ministry of Justice. If a decision of a foreign state contains
an unequivocal information regarding immediate termination of the execu-
tion of a punishment or the final date, it shall be transferred to the institution
executing the punishment and in other cases—for examination in a court,
which shall take a decision on matters related to execution of the
judgment.
(6) A person who is serving a punishment related to deprivation of liberty shall
be released without delay as soon as information regarding revocation of the
judgment of conviction is received, if concurrently a request of a foreign
state for application of temporary arrest has not been received in the cases
provided for in this Section.
Section 763. Notifications of the Ministry of Justice to a Foreign State
(1) The Ministry of Justice shall notify a foreign state that a request thereof
regarding the execution of a punishment applied in the foreign state has
been forwarded to a district (city) court.
(2) After receipt of a notification of a court the Ministry of Justice shall notify
the relevant foreign state regarding:
1) a decision to recognise the judgment and to execute the punishment
imposed in the foreign state;
2) a refusal to recognise the judgment and to execute the punishment
imposed in the foreign state;
3) a decision on determination of the punishment to be executed in Latvia;
4) an amnesty and clemency decision;
5) completion of execution of the punishment;
6) if the foreign state has requested a special report.
(3) In relation to an adjudication rendered in the foreign state, by which the
punishment of deprivation of liberty has been imposed, the Ministry of
Justice shall, in addition to the notifications referred to in Paragraphs
one and two of this Section, also inform the relevant foreign state
regarding:
1) the beginning and the end of the early conditional release term, if the
state that rendered the judgment has requested it;
2) regarding the escape of the convicted person from prison.
Appendix C | 143
(4) In relation to an adjudication rendered in the foreign state, by which a fine
has been imposed, the Ministry of Justice shall, in addition to the notifica-
tions referred to in Paragraphs one and two of this Section, also inform the
relevant foreign state regarding:
1) substitution of the fine;
2) inability to execute the adjudication.
(5) In relation to an adjudication rendered in the foreign state, by which confis-
cation of property has been applied, the Ministry of Justice shall, in addition
to the notifications referred to in Paragraphs one and two of this Section,
also inform the relevant foreign state regarding:
1) a decision on impossibility of execution of the confiscation of property.
2) a decision on complete or partial non-execution of the confiscation of
property.
(6) In relation to an adjudication rendered in the foreign state, by which an
alternative sanction has been applied, the Ministry of Justice shall, in
addition to the notifications referred to in Paragraphs one and two of this
Section, also inform the relevant European Union Member State regarding
determination of an alternative sanction, if it does not conform to the alter-
native sanction specified in the relevant European Union Member State.
Chapter 74
Execution in Latvia of a Confiscation of Property Applied in a Foreign
State
Section 790. Principles for the Assessment of a Confiscation of Property Applied
in a Foreign State
The procedures referred to in Chapter 69 of this Law shall be applied to the
assessment of a request of a foreign state regarding the execution of a confisca-
tion of property, if it has not been specified otherwise in this Chapter.
Section 791. Determination of a Confiscation of Property to be Executed in
Latvia
(1) A confiscation of property to be executed in Latvia shall be determined, if
such confiscation has been imposed in a foreign state and if The Criminal
Law provides for such confiscation as a basic punishment or additional pun-
ishment regarding the same offence, or if property would be confiscated in
criminal proceedings taking place in Latvia on grounds provided for in
another law.
(2) If a judgment of a foreign state provides for the confiscation of property, but
The Criminal Law does not provide for the confiscation of property as a
basic punishment or additional punishment, confiscation shall be applied
only in the amount established in the judgment of the foreign state, that the
object to be confiscated is an instrumentality of the committing of the
offence or has been obtained by criminal means.
(3) The amount of a confiscation of property imposed in a foreign state, if an
adjudication has been rendered regarding a certain amount of money, shall
be calculated according to the currency exchange rate specified by the Bank
144 | Orders without Borders
of Latvia which was in force on the day of proclamation of the judgment of
conviction.
(4) If several adjudications have been received concurrently regarding the con-
fiscation of property in respect of an amount of money and these adjudica-
tions have been issued in respect of one person who does not have sufficient
resources in Latvia to execute all the adjudications, or several adjudications
have been received concurrently regarding the confiscation of property in
respect of a certain part of property, a court shall take a decision on which of
the adjudications will be executed, taking into account:
1) the severity of a criminal offence;
2) attachment imposed on the property;
3) succession in which adjudications regarding the confiscation of prop-
erty have been received in Latvia.
Section 792. Conditions in Respect of the Division of Money or Property
Acquired as a Result of a Confiscation of Property with Foreign States
(1) A request regarding the division of money or property acquired as a result of
a confiscation of property shall be decided by the Ministry of Justice in each
particular case.
(2) In examining a request regarding division of money acquired as a result of a
confiscation of property, the amount of money acquired, the harm caused by
a criminal offence and location of victims shall be taken into account.
(3) If the money obtained as a result of confiscation of property does not exceed
the equivalent of EUR 10000 in lats (recalculating in accordance with the
currency exchange rate specified by the Bank of Latvia which was in effect
on the day of the announcement of the adjudication regarding the confisca-
tion of property), the Ministry of Justice shall take a decision on refusal to
transfer the money to a foreign state. If the money obtained as a result of
confiscation of property exceeds the equivalent of EUR 10 000 in lats (recal-
culating in accordance with the currency exchange rate specified by the
Bank of Latvia which was in effect on the day of the announcement of
the adjudication regarding the confiscation of property), the Ministry of
Justice, upon consulting with a foreign state, shall take a decision to transfer
to the foreign state not more than half of the money or the amounts specified
in a request of the foreign state.
(4) The Ministry of Justice, upon consulting with a foreign state, may take a
decision on different division of the money, which has not been referred to
in Paragraph three of this Section and which does not harm the financial
interests of Latvia. The conditions of Paragraph two of this Section shall be
taken into account in consultations.
(5) Upon the request of a foreign state the Ministry of Justice may take a deci-
sion on return of the property acquired as a result of a confiscation of prop-
erty to the foreign state.
(6) The Ministry of Justice shall refuse a request regarding the division of
money or property acquired as a result of a confiscation of property, if the
request is received after one year from the day of sending of a notification
Appendix C | 145
regarding the execution of the adjudication regarding a confiscation of
property.
(7) The Cabinet shall determine the procedures by which money or property
acquired as a result of a confiscation of property shall be divided with
foreign states and the procedures by which money shall be transferred, as
well as the criteria for the division of money or property.
LEBANON
Penal code
Article 29
Sentences imposed by foreign criminal courts in respect of acts characterized as
felonies or misdemeanours by Lebanese law may be invoked:
1. With a view to the enforcement of preventive measures and the measures of
incapacity and extinguishment of rights resulting therefrom, provided that
they are in conformity with Lebanese law, and the enforcement of awards of
restitution, damages and other civil awards;
2. With a view to imposing sentences pursuant to Lebanese law in respect of
preventive measures and measures of incapacity and extinguishment of
rights, comprising awards of restitution, damages and other civil awards;
3. With a view to applying the provisions of Lebanese law concerning recidi-
vism, habitual criminal conduct, plurality of offences, stay of execution and
rehabilitation.
The Lebanese judge shall assess the validity of the foreign sentence in proce-
dural and substantive terms in the light of the documents in the case file.
NEW ZEALAND
Mutual Assistance in Criminal Matters Act 1992
Requests to enforce foreign restraining orders and foreign forfeiture
orders
54 Request to enforce foreign restraining order
(1) A foreign country may request the Attorney-General to assist in enforcing a
foreign restraining order that relates to property that is believed to be
located in New Zealand.
(2) The Attorney-General may authorise the Commissioner to apply to
the High Court to register a foreign restraining order in New Zealand
if satisfied—
(a) that the request from the foreign country relates to—
(i) tainted property (as defined in relation to Part 3); or
(ii) property of a person who has unlawfully benefited from significant
foreign criminal activity; or
146 | Orders without Borders
(iii) an instrument of crime (as defined in relation to Part 3); or
(iv) property that will satisfy some or all of a foreign pecuniary penalty
order; and
(b) that there are reasonable grounds to believe some or all of the
property that is able to be restrained under the foreign restraining
order is located in New Zealand.
(3) An authority issued under subsection (2) must be in writing.
55 Request to enforce foreign forfeiture order
(1) A foreign country may request the Attorney-General to assist in enforcing a
foreign forfeiture order that relates to property that is reasonably believed
to be located in New Zealand.
(2) The Attorney-General may authorise the Commissioner to apply to
the High Court to register the foreign forfeiture order in New Zealand if
satisfied—
(a) that the request from the foreign country relates to property that may be
forfeited under the foreign forfeiture order and is specific property that—
(i) is tainted property (as defined in relation to Part 3); or
(ii) belongs to a person who has unlawfully benefited from significant
foreign criminal activity; or
(iii) is an instrument of crime (as defined in relation to Part 3); or
(iv) will satisfy some or all of a foreign pecuniary penalty order; and
(b) that there are reasonable grounds to believe that some or all of the prop-
erty to which the order relates is located in New Zealand.
(3) An authority issued under subsection (2) must be in writing.
56 Method for registering foreign orders in New Zealand
(1) If the High Court is satisfied that a foreign order that the Commissioner has
applied to register under section 54 or 55 is in force in a foreign country, the
High Court must make an order that it be registered in New Zealand.
(3) A foreign order, or an amendment to a foreign order (an amendment), may
be registered in the High Court in New Zealand by registering either of the
following under the prescribed procedure:
(a) a copy of the foreign order or amendment sealed by the court or other
judicial authority who made it; or
(b) a copy of the foreign order or amendment authenticated in accordance
with section 63.
(4) A copy of an amendment (whether made before or after registration) may be
registered in the same way as a foreign order.
(5) A foreign order or an amendment to a foreign order does not have effect
under this Act or the Criminal Proceeds (Recovery) Act 2009 until it is
registered.
(6) An exact copy of a sealed or authenticated copy of a foreign order or an
amendment must for the purposes of this Act be treated as if it is the sealed
or authenticated copy.
Appendix C | 147
(7) However, registration of an exact copy ceases to have effect on the expiry of
the period of 21 days commencing on the date of registration unless, before
the expiry of that period, the sealed or authenticated copy is registered.
57 Effect of registering foreign orders in New Zealand
(1) A foreign restraining order registered in New Zealand under section 56 has
effect, and may be enforced, as if it is a restraining order—
(a) made by the High Court under the Criminal Proceeds (Recovery) Act
2009; and
(b) entered on the date it is registered.
(2) Subsection (1) is subject to sections 136 to 139 of the Criminal Proceeds
(Recovery) Act 2009.
(3) A foreign forfeiture order registered in New Zealand under section 56 has
effect, and may be enforced, as if it is a forfeiture order—
(a) made by the High Court under the Criminal Proceeds (Recovery) Act
2009; and
(b) entered on the date it is registered.
(4) Subsection (3) is subject to sections 140 to 149 of the Criminal Proceeds
(Recovery) Act 2009.
Section 57: substituted, on 1 December 2009, by section 10 of the Mutual
Assistance in Criminal Matters Amendment Act 2009 (2009 No 9).
58 Cancelling registration of foreign orders in New Zealand
(1) The Attorney-General may at any time direct the Commissioner to apply to
the High Court to cancel the registration in New Zealand of—
(a) a foreign restraining order; or
(b) a foreign forfeiture order.
(2) Without limiting subsection (1), the Attorney-General may give a direction
of that kind if the Attorney-General is satisfied—
(a) that the order has, since being registered in New Zealand, ceased to
have effect in the foreign country in which it was made; or
(b) that cancelling the order is appropriate having regard to arrangements
entered into between New Zealand and the foreign country in relation
to the enforcing of orders of that kind; or
(c) that the registration of the order in New Zealand contravened section
56; or
(d) [Repealed]
(e) that, after consultation with the foreign country where the order was
made, it is desirable that the registration of the foreign order be can-
celled; or
(f ) that the foreign order has been discharged, wholly or in part.
(3) The High Court must cancel the registration of a foreign order in New
Zealand if the Commissioner applies, under a direction under subsection (1),
to the High Court to cancel the registration.
148 | Orders without Borders
60 Interim foreign restraining order
(1) A foreign country may request the Attorney-General to obtain the issue of an
interim foreign restraining order in respect of property that is believed to be
located in New Zealand.
(2) After a request is made, the Attorney-General may authorise the
Commissioner to make an application under section 128 of the Criminal
Proceeds (Recovery) Act 2009 for an interim foreign restraining order if the
Attorney-General is satisfied that—
(a) there is a criminal investigation in relation to—
(i) tainted property (as defined in relation to Part 3); or
(ii) property that belongs to a person who has unlawfully benefited
from significant foreign criminal activity; or
(iii) an instrument of crime (as defined in relation to Part 3); or
(iv) property that will satisfy some or all of a foreign pecuniary penalty
order; and
(b) there are reasonable grounds to believe all or part of the property to
which the criminal investigation relates is located in New Zealand.
CRIMINAL PROCEEDS (RECOVERY) ACT 2009
Subpart 8—Foreign restraining orders and foreign forfeiture orders
Interim foreign restraining orders
128 Interim foreign restraining order
(1) The Commissioner may apply for an interim foreign restraining order if
authorised by the Attorney-General under section 60 of the Mutual
Assistance in Criminal Matters Act 1992.
(2) An application under subsection (1) is an application made without notice.
(3) Subpart 2 of Part 2 (except sections 21, 22(1), and 37 to 42) applies to an
application made under subsection (1)—
(a) with any necessary modifications:
(b) without limiting paragraph (a), with the following specific
modifications:
(i) a reference to significant criminal activity must be read as a refer-
ence to significant foreign criminal activity:
(ii) the reference in section 28(2) to a respondent’s legal expenses must
be read as including a reference to a person’s expenses in defending
allegations of the commission of significant foreign criminal activity
in a foreign country.
(4) An interim foreign restraining order is to be treated in all respects (other
than under sections 37 to 42) as if it were a restraining order.
(5) This section applies, with any necessary modifications, to an application for
a restraining order made under section 112 of the International Crimes and
International Criminal Court Act 2000.
Appendix C | 149
129 Expiry of interim foreign restraining orders
(1) An interim foreign restraining order expires when the earlier of the follow-
ing occurs:
(a) the date is reached that is the end of 28 days (commencing on the day on
which the order is made):
(b) a foreign restraining order relating to some or all of the property to
which the interim foreign restraining order relates is registered in New
Zealand.
(2) Despite subsection (1), if the duration of an interim foreign restraining order
is extended by a court, the interim foreign restraining order expires on the
date specified by the court under section 130.
130 Extending duration of interim foreign restraining order
(1) If a court has made an interim foreign restraining order, the applicant for
that order may, before the interim foreign restraining order expires, apply to
that court to extend its duration.
(2) If an application is made under subsection (1), the court may order that the
interim foreign restraining order be extended for a period not exceeding 3
months.
(3) The duration of an interim foreign restraining order may be extended more
than once under this section.
(4) If, before an interim foreign restraining order would otherwise expire under
section 129(1), an application is made to a court under this section and the
application is granted, the interim foreign restraining order ceases to be in
force on the date specified in the court’s order, unless it is further extended
on an application under this section.
131 Additional matters relating to extending duration of interim foreign restrain-
ing order
(1) On making an order under section 130, the court may vary the interim for-
eign restraining order in any way it considers fit, including, without limita-
tion, by specifying whether all or part of the property is to remain subject to
the interim foreign restraining order during the extended period of
operation.
(2) An applicant for an order under section 130 must serve, so far as is practica-
ble, a copy of the application on any person who, to the knowledge of the
applicant, has an interest in the property that is the subject of the
application.
Registering foreign restraining orders
132 Who may apply to register foreign restraining order
The Commissioner may apply to register a foreign restraining order in New
Zealand if authorised by the Attorney-General under section 54 of the Mutual
Assistance in Criminal Matters Act 1992.
133 Application to register foreign restraining order made to High Court
150 | Orders without Borders
If authorised to register a foreign restraining order in New Zealand under sec-
tion 54 of the Mutual Assistance in Criminal Matters Act 1992, the Commissioner
may apply to the High Court.
134 Provisions of subpart 2 of Part 2 applying to registering foreign restraining
orders
(1) The following sections of subpart 2 of Part 2 apply, with all necessary modi-
fications, if an application is made to register a foreign restraining order in
New Zealand under section 54 of the Mutual Assistance in Criminal Matters
Act 1992 or an application is made to register a restraining order under sec-
tion 112(2) of the International Crimes and International Criminal Court Act
2000:
(a) section 19 (application to identify proposed restrained property, respon-
dent (if any), and interest holders):
(b) section 21 (application for restraining order on notice):
(ba) section 22 (application for restraining order without notice):
(c) section 27 (registration of restraining orders on registers):
(d) section 28(1), (3), and (4) (conditions on restraining order):
(e) section 29 (undertakings as to damage or costs in relation to restraining
orders):
(f ) section 32 (certain dispositions or dealings set aside):
(g) section 33(1) and (2) (applying for further order):
(h) section 34 (making further orders):
(i) section 35 (types of further order):
( j) section 36 (impact of certain further orders):
(k) any other provisions of subpart 2 of Part 2 specified as applicable for the
purposes of this subsection by regulations made under section 173(d).
(2) Without limiting subsection (1), a reference in any of the provisions listed in
subsection (1) to a restraining order must be read as a reference to a foreign
restraining order.
(3) Sections 30 and 31 (relating to relief ) apply in relation to a foreign
restraining order registered in New Zealand only if the person applying for
relief,—
(a) in a case where the foreign restraining order was made without a hear-
ing in a court in the foreign country where it was made, was given no
opportunity to make representations to the person or body that made
the foreign restraining order:
(b) in a case where the foreign restraining order was made at a hearing of a
court in the foreign country where it was made, was not served with any
notice of, and did not appear at, the hearing held in the court:
(c) in any other case, obtains the leave of the court to make the application.
(4) Sections 23 and 33(3) apply, in relation to an application to register a foreign
restraining order or in relation to an application for a further order in rela-
tion to that order or in relation to an application for relief in respect of a
foreign restraining order, but confer a right of appearance on the person
who is subject to the order or the applicant for relief only if that person,—
Appendix C | 151
(a) in a case where the foreign restraining order was made without a hear-
ing in a court in the foreign country where it was made, was given no
opportunity to make representations to the person or body that made
the foreign restraining order:
(b) in a case where the foreign restraining order was made at a hearing of a
court in the foreign country where it was made, was not served with any
notice of, and did not appear at, the hearing held in the court:
(c) in any other case, obtains the leave of the court to appear at the hearing
of the application.
(5) The court may grant special leave under subsection (3)(c) or (4)(c) if—
(a) the applicant for relief or the person who is the subject of the foreign
restraining order had good reasons—
(i) for failing to make representations to the decision-making person
or body who made the order in the foreign country; or
(ii) in a case where the order was made by a court in the foreign coun-
try, for failing to attend the hearing at which the foreign restraining
order was made; or
(b) the evidence proposed to be adduced by the applicant for relief or other
person who is subject to the foreign restraining order was not reason-
ably available to the applicant for relief or other person at the time when
the applicant or other person—
(i) was required to make submissions to the person or body that made
the foreign restraining order in a foreign country; or
(ii) at the time of the hearing at which the foreign restraining order was
made by the court in a foreign country.
135 Effect of registering foreign restraining order in New Zealand
(1) If a foreign restraining order is registered in New Zealand under section 56
of the Mutual Assistance in Criminal Matters Act 1992, the property speci-
fied in the foreign restraining order that is located in New Zealand—
(a) is not to be disposed of, or dealt with, other than is provided for in the
order; and
(b) is to be under the Official Assignee’s custody and control.
(2) If a foreign restraining order is registered in New Zealand, the Commissioner
must give written notice of the order to any persons whose property is the
subject of the order.
Duration of foreign restraining order and further orders
136 Duration of foreign restraining order registered in New Zealand and associ-
ated further orders
(1) The registration of a foreign restraining order in New Zealand expires on
the earliest of the following dates:
(a) the date when the foreign restraining order to which it relates expires
or is revoked:
(b) the date that is the end of 2 years after the date on which the foreign
restraining order is registered in New Zealand:
152 | Orders without Borders
(c) the date when the Commissioner registers a foreign forfeiture order in
New Zealand in respect of some or all of the property specified in the
foreign restraining order:
(d) the date on which the registration of the foreign restraining order in
New Zealand has been cancelled under section 58 of the Mutual
Assistance in Criminal Matters Act 1992.
(2) Despite subsection (1), if the registration of a foreign restraining order in
New Zealand is extended as a result of an application to the High Court, it
expires on the date specified by the High Court under section 137.
(3) On the expiry of the registration of a foreign restraining order in New
Zealand, any further order made in relation to the foreign restraining order
also expires.
137 Extension of duration of registration of foreign restraining order
(1) If the High Court has registered a foreign restraining order in New Zealand,
the applicant for that order may, before the registration of the restraining
order expires, apply to the High Court for an extension of the duration of the
registration of the foreign restraining order in New Zealand.
(2) If an application is made under subsection (1), the High Court may order
that the registration of a foreign restraining order be extended for a further
period not exceeding 1 year.
(2A) The duration of the registration of a foreign restraining order may be extended
more than once under this section.
(3) If an application is granted under this section, the registration of the foreign
restraining order in New Zealand ceases at the time specified in the Court’s
order.
138 Additional matters relating to extension of registration of foreign restraining
order
(1) On making any order of the kind referred to in section 137, the High Court
may vary the foreign restraining order in any way it considers fit, including,
without limitation, by specifying whether all or part of the property is to
remain subject to the foreign restraining order during the extended period
of registration in New Zealand.
(2) An applicant for an order under subsection (1) must serve a copy of the
application on any person who, to the knowledge of the applicant, has an
interest in the property that is the subject of the application.
139 Exclusion of interest from foreign restraining order registered in New
Zealand
(1) A person (other than the respondent) who has a severable interest in property
restrained under a foreign restraining order that is registered in New Zealand
may apply to the High Court for the exclusion of that interest if the person—
(a) has not already been a party to proceedings associated with the making
of the foreign restraining order in the foreign country where it was
made; and
Appendix C | 153
(b) has good reason for failing to have attended the hearing connected with
the making of the foreign restraining order in the foreign country where
it was made; and
(c) has not unlawfully benefited from the significant foreign criminal
activity to which the foreign restraining order relates; and
(d) has already made an application (whether granted or not) under section
30 (as made applicable by section 134(3)).
(2) The High Court may, if it is satisfied of the matters in subsection (1), make
an order—
(a) directing the Crown to transfer the interest to the applicant; or
(b) that the Crown pay to the applicant an amount equal to the value of the
interest declared by the Court.
(3) An order under subsection (1) does not affect a restraining order, insofar as
it applies to property that is not the subject of the order.
Registering foreign forfeiture orders
140 Who may apply to register foreign forfeiture order
The Commissioner may apply to register a foreign forfeiture order in New
Zealand if authorised by the Attorney-General under section 55 of the Mutual
Assistance in Criminal Matters Act 1992.
141 Application to register foreign forfeiture order made to High Court
If authorised to apply to register a foreign forfeiture order in New Zealand under
section 55 of the Mutual Assistance in Criminal Matters Act 1992, the
Commissioner may apply to the High Court.
142 Notice of registration of foreign forfeiture order
(1) The Commissioner must serve notice of having applied to register a foreign
forfeiture order in New Zealand, so far as it is practicable to do so, on every
person who, to the knowledge of the Commissioner, has an interest in the
property to which the order relates.
(2) The Commissioner must also serve notice of the intention to register the
foreign forfeiture order in New Zealand on the Official Assignee.
143 Provisions of subpart 3 of Part 2 applying to registering foreign forfeiture
orders
(1) The following sections of subpart 3 of Part 2 apply, with all necessary modi-
fications, if an application is made to register a foreign forfeiture order in
New Zealand under section 55 of the Mutual Assistance in Criminal Matters
Act 1992:
(a) section 47 (amending application for civil forfeiture order):
(b) any other provision of subpart 3 of Part 2 specified as applicable for the
purposes of this subsection by regulations made under section 173.
(2) Section 148 (which relates to relief ) applies in relation to a foreign forfeiture
order registered in New Zealand only if the person applying for relief,—
154 | Orders without Borders
(a) in a case where the foreign forfeiture order was made without a hearing
in a court in the foreign country where it was made, was given no oppor-
tunity to make representations to the person or body that made the for-
eign forfeiture order:
(b) in a case where the foreign forfeiture order was made at a hearing of a
court in the foreign country where it was made, was not served with any
notice of, and did not appear at, the hearing held in the court:
(c) in any other case, obtains the leave of the court to make the application.
(3) Sections 46 and 64 apply, in relation to an application to register a for-
eign forfeiture order or in relation to an application for relief in respect
of a foreign forfeiture order, but confer a right of appearance on the
person who is subject to the order or the applicant for relief only if that
person,—
(a) in a case where the foreign forfeiture order was made without a hearing
in a court in the foreign country where it was made, was given no oppor-
tunity to make representations to the person or body that made the for-
eign forfeiture order:
(b) in a case where the foreign forfeiture order was made at a hearing of a
court in the foreign country where it was made, was not served with any
notice of, and did not appear at, the hearing held in the court:
(c) in any other case, obtains the leave of the court to appear at the hearing
of the application.
(4) The court may grant special leave under subsection (2)(c) or (3)(c) if—
(a) the applicant for relief or the person who is the subject of the foreign
forfeiture order had good reasons—
(i) for failing to make representations to the decision-making person
or body who made the order in the foreign country; or
(ii) in a case where the order was made by a court in the foreign coun-
try, for failing to attend the hearing at which the foreign forfeiture
order was made; or
(b) the evidence proposed to be adduced by the applicant for relief or other
person who is subject to the foreign forfeiture order was not reasonably
available to the applicant for relief or other person at the time when the
applicant or other person—
(i) was required to make submissions to the person or body that made
the foreign forfeiture order in a foreign country; or
(ii) at the time of the hearing at which the foreign forfeiture order was
made by the court in a foreign country.
144 Registering foreign forfeiture order
The effect of registering a foreign forfeiture order in New Zealand under section
56 of the Mutual Assistance in Criminal Matters Act 1992 is that the property
specified in the foreign forfeiture order—
(a) vests in the Crown absolutely; and
(b) is in the custody and control of the Official Assignee.
Appendix C | 155
145 Notice of registration of foreign forfeiture order may be recorded on
registers
(1) Subsection (2) applies if an application is made for a foreign forfeiture order
to be registered in New Zealand against property of a kind covered by a New
Zealand enactment that enables the registration of—
(a) title to that property; or
(b) charges over that property.
(2) If this subsection applies, the High Court may, at any time before finally
determining the application, order any authority responsible for adminis-
tering an enactment of the kind referred to in subsection (1) (an Authority)
to enter on a register a note of the fact that an application has been made to
register a foreign forfeiture order against the property in New Zealand.
(3) The Court must order an Authority to cancel an entry made on a register
under subsection (2) if—
(a) the foreign forfeiture order to which registration relates is cancelled or
expired; or
(b) the specified period (as described in section 86(2)) has expired; or
(c) the foreign forfeiture order in relation to which registration is sought is
amended to exclude that property.
146 Additional matters in respect of registering foreign forfeiture order
(1) On registering a foreign forfeiture order in New Zealand, the High Court
may do either or both of the following:
(a) declare the nature, extent, and value of any person’s interest in property
specified in the order:
(b) give any directions that may be necessary and convenient for giving
effect to the foreign forfeiture order.
(2) Without limiting the generality of subsection (1)(b), if a Court registers a
foreign forfeiture order in New Zealand against any property the title to
which is passed by registration on a register maintained under any New
Zealand enactment, the Court may direct an officer of the Court to do any-
thing reasonably necessary to obtain possession of any document required
to effect the transfer of the property and for that purpose may, by warrant,
authorise an officer to enter and search any place or thing and seize any
document.
(3) Part 4 of the Search and Surveillance Act 2012 (except subpart 6), so far as
applicable and with all necessary modifications, applies in relation to a war-
rant issued under subsection (2) as if it were a warrant issued under section
101 to a member of the police.
147 Registering foreign forfeiture order relating to land
(1) Nothing in section 144 affects the operation of section 89 of the Land
Transfer Act 2017 in respect of an estate or interest in land under that Act.
156 | Orders without Borders
(2) If the High Court registers a foreign forfeiture order in New Zealand in
respect of an estate or interest in land, the order must be transmitted by the
Registrar of the Court to the Registrar-General of Land or the Registrar of
Deeds, as the case may be, for the purposes of registration under the Land
Transfer Act 2017 or the Deeds Registration Act 1908, as the case may
require.
Section 147(1): amended, on 12 November 2018, by section 250 of the Land
Transfer Act 2017 (2017 No 30).
Relief from foreign forfeiture order registered in New Zealand
148 Relief from foreign forfeiture order registered in New Zealand
A person who claims an interest in property sought to be forfeited under a for-
eign forfeiture order registered in New Zealand may, before the date that is
6 months from the date on which the foreign forfeiture order is registered,
apply to the High Court for an order if the person is a person to whom section
143(2)(a), (b), or (c) applies.
149 High Court may grant relief from foreign forfeiture order registered in New
Zealand
(1) The High Court may make an order of the kind described in subsection (2)
if it is satisfied—
(a) of the matters in section 148; and
(b) that the applicant has an interest in the property to which the order
relates.
(2) The High Court may make an order—
(a) directing the Crown to transfer the interest to the applicant; or
(b) that the Crown pay to the applicant an amount equal to the value of the
interest declared by the Court.
(3) The Court may refuse to make an order of the kind described in subsection
(2) if it is satisfied that—
(a) the applicant was involved in the significant foreign criminal activity to
which the foreign forfeiture order relates; or
(b) the applicant did not acquire the interest in the property in good faith or
for value (without knowing or having reason to believe that the property
was tainted property) in circumstances where the applicant acquired
the interest at the time of, or after, the commission of the offence or
serious criminal activity; or
(c) the applicant has unlawfully benefited from the significant foreign
criminal activity to which the foreign forfeiture order relates.
(4) Nothing in subsection (3) requires the Court to refuse making an order.
Appendix C | 157
NIGERIA
Mutual Assistance in Criminal Matters within the Commonwealth
(Enactment and Enforcement) Act
Part II
Provisions as to the proceeds of criminal activities
22. Confirmation and enforcement of orders for forfeiture of the proceeds of
criminal activity
(1) A request under this Part of the Act may seek assistance in invoking proce-
dures in the requested country leading to the recognition or review and con-
firmation and the enforcement of an order for the forfeiture of the proceeds
of criminal activities made by a court or other authority in the requesting
country.
(2) A request under this section shall be accompanied by a certified copy of the
order and shall contain, so far as is reasonably practicable, all such informa-
tion available to the Central Authority of the requesting country as may be
required in connection with the procedures to be followed in the requested
country.
(3) The law of the requested country shall apply to determine the circumstances
and manner in which an order may be recognised, confirmed or enforced.
PERU
Regulation of Legislative Decree N.1373 on the Extinction of Ownership
Title XII
International Legal Cooperation
Article 75. Effect in Peru of judgments issued by foreign courts
Judgments of confiscation, extinction of ownership or similar legal institutes
issued by foreign courts on assets that are in the national territory and that are
sought through international judicial cooperation are enforceable in Peru.
Their enforcement is subject to the provisions of international treaties, conven-
tions or agreements signed, approved and ratified by Peru, or in the absence
thereof, to an offer of reciprocity. For this purpose, it is provided that, in the case
of movable property other than cash, the requesting State may choose to receive
the asset in question or its cash value obtained as a result of the auction carried
out by the authority in charge of its administration. In the case of real estates,
they are subject to auction and their proceeds will be delivered to the requesting
State in cash.
158 | Orders without Borders
REPUBLIC OF KOREA
Act on Regulation and Punishment of Criminal Proceeds Concealment
Article 11 (Implementation of Mutual Cooperation)
When a foreign country has requested cooperation in relation to a foreign crim-
inal case against an act that falls under specific crimes and the crimes referred to
in Articles 3 and 4 of this Act in the execution of a finally-binding adjudication of
confiscation or collection of equivalent value or in the preservation of property
for the purpose of confiscation or collection of equivalent value, mutual assis-
tance may be provided except in any of the following cases:
1. Where activities related to the crimes that require mutual cooperation take
place in the Republic of Korea and such activities are not regarded as spe-
cific crimes or the crimes referred to in Articles 3 and 4 of the Acts and sub-
ordinate statutes of the Republic of Korea;
2. Where there is no assurance of the requesting country providing assistance
for similar requests made by the Republic of Korea;
3. Where it falls under any of the subparagraphs of Article 64 (1) of the Act on
Special Cases concerning the Prevention of Illegal Trafficking in Narcotics,
etc.
[This Article Wholly Amended by Act No. 10201, Mar. 31, 2010]
Article 12 (Act on Special Cases Concerning the Prevention of Illegal Trafficking
in Narcotics, etc. to Be Applied mutatis mutandis)
The provisions of Articles 19 through 63, 64 (2) and 65 through 78 of the Act on
Special Cases concerning the Prevention of Illegal Trafficking in Narcotics, etc.
shall apply mutatis mutandis to the confiscation and collection of equivalent
value, and international cooperation pursuant to this Act.
Act on Special Cases Concerning the Prevention of Illegal Trafficking in
Narcotics, Etc.
Article 64 (Providing Cooperation)
(1) Where a foreign country requests cooperation concerning a foreign criminal
case against an act that falls under narcotics crimes in the execution of a final
and conclusive judgement of confiscation or collection or in the preserva-
tion of a property for confiscation or collection purposes under a treaty,
cooperation may be provided in response to the request except as provided
for in the following subparagraphs:
1. Where it is deemed impossible to penalize a cooperation crime (refer-
ring to a crime that is the object of a request for cooperation; hereinafter
the same shall apply) under the statutes of the Republic of Korea;
2. Where a trial on a case regarding a cooperation crime is in progress in a
court of the Republic of Korea or a judgement thereon has already
become final and conclusive or where an order of preservation for con-
fiscation or collection has already been issued for a property subject to
the cooperation;
Appendix C | 159
3. Where a property relating to a request for cooperation in the execution
of a final and conclusive judgement of confiscation or for cooperation in
the preservation of property for confiscation purposes does not fall
under the category of property that may be brought to a confiscation
trial or become subject to the preservation for confiscation under the
statutes of the Republic of Korea;
4. Where it is deemed impossible to make a judgment of collection or to
preserve property for collection under the statutes of the Republic of
Korea, in regard to a cooperation crime related to a request for cooper-
ation in the execution of a final and conclusive judgement of collection
or for cooperation in the preservation of property for collection
purposes;
5. Where it is deemed that a third party who has a reasonable ground to be
recognized as the owner of the property related to a request for cooper-
ation in the execution of a final and conclusive judgement of confisca-
tion or has any surface rights, mortgage, or other rights over the property
was unable to claim such right at the relevant trial through no fault of
such third party;
6. Where it is deemed that no grounds exist under Article 33 (1) or 52 (1)
for cooperation in the preservation of property for confiscation or col-
lection purposes: Provided, That this shall not apply if a request for
cooperation in the preservation of property is based on a judgement
executed by a court or judge of the foreign country making the request
for the preservation of property for confiscation or collection purposes
or if a request is made after a judgement of confiscation or collection
becomes final and conclusive.
(2) When a property on which surface rights, mortgage, or other rights exist is
confiscated for the cooperation of the execution of a final and conclusive
judgement of confiscation, if necessary under the statutes of the Republic of
Korea, such rights shall continue to exist.
Article 66 (Receipt of Request)
A request for cooperation shall be received by the Minister of Foreign Affairs:
Provided that in cases of emergency or special circumstances, the Minister of
Justice may receive a request for cooperation with the consent of the Minister of
Foreign Affairs.
Article 67 (Review by Court)
(1) Where a request for cooperation concerns the execution of a final and con-
clusive judgement of confiscation or collection, a prosecutor shall request a
court to review whether it is a case which allows cooperation.
(2) The court shall dismiss the prosecutor’s request after review thereof where
it deems the request for review to be unlawful, shall decide to allow a whole
or partial cooperation where it deems the cooperation to be acceptable in all
or in part of the final and conclusive judgement for which cooperation is
requested, or shall decide to refuse to cooperate where it deems the request
for cooperation to be totally unacceptable.
[…]
160 | Orders without Borders
Article 69 (Effect of Decision)
Where a decision to allow cooperation in the execution of a final and conclusive
judgement of confiscation or collection becomes final and conclusive, such judg-
ment of confiscation or collection shall be deemed a final and conclusive judge-
ment of confiscation or collection made by the court of the Republic of Korea in
the provision of cooperation.
Act on Special Cases Concerning the Confiscation and Return of Property
Acquired Through Corrupt Practices
Article 7 (Facilitation of International Cooperation)
Whenever a foreign state requests the return of property subject to execution,
etc. in relation to a criminal case of an act constituting a corruption offense in the
foreign state, cooperation may be provided for such request, except for those
cases falling under any of the following subparagraphs:
1. Where an act involved in the offense for which cooperation is requested was
committed within the territories of the Republic of Korea and it is held that
the act does not constitute a corruption offense under relevant Acts and sub-
ordinate statutes of the Republic of Korea;
2. Where the requesting State has not made a guaranty to the extent that it will
accept and respond to a request for cooperation of the same kind if the
Republic of Korea makes such a request;
3. Where the requesting State has not made a guaranty that the property sub-
ject to execution, etc. will be conveyed to the original owner of the property
subject to execution, etc., the victim of the offense, or any other person who
has a legitimate right;
4. Where a case falls under any subparagraph of Article 64 (1) of the Act on
Special Cases Concerning the Prevention of Illegal Trafficking in Narcotics,
etc.
Article 8 (Application Mutatis Mutandis of Act on Special Cases Concerning the
Prevention of Illegal Trafficking in Narcotics, etc.)
As to the confiscation, collection of an equivalent value, and international coop-
eration under this Act, Articles 19 through 63, 64 (2) and 65 through 78 of the Act
on Special Cases concerning the Prevention of Illegal Trafficking in Narcotics,
etc. shall apply mutatis mutandis.
RUSSIAN FEDERATION
Criminal Procedure Code
Chapter 55.1.
Procedure for Consideration and Resolution of Issues Related to the
Recognition and Enforcement of the Verdict, Foreign Court Order in Part
of Confiscation on the Territory of the Russian Federation of the Proceeds
of Crime
Appendix C | 161
Article 473.1. Recognition and enforcement of the verdict, foreign court order in
part of confiscation on the territory of the Russian Federation of the proceeds of
crime
1. The verdict, foreign court order in part of confiscation on the territory of the
Russian Federation of the proceeds of crime shall be recognized and
enforced in the Russian Federation if this is stipulated by an international
treaty of the Russian Federation. In the absence of a relevant international
treaty, the issue of recognition of the verdict, foreign court order can be
solved on the basis of the principle of reciprocity, confirmed by a written
obligation of the foreign state and received by the Ministry of Justice of the
Russian Federation in accordance with Part 1 of Article 457 of this Code.
2. The basis of enforcement of the verdict, foreign court order in part of con-
fiscation on the territory of the Russian Federation of the proceeds of crime
is the court order of the Russian Federation on the recognition and enforce-
ment of the verdict, foreign court order, delivered in accordance with the
international treaty of the Russian Federation or on the basis of reciprocity
upon consideration of request sent in the prescribed manner to the compe-
tent authority of the foreign state and the relevant foreign court order.
3. For the purposes of this Chapter, the proceeds of crime mean the property
specified in Article 104.1 of the Criminal Code of the Russian Federation.
Article 473.2. Content of the request for recognition and enforcement of the ver-
dict, foreign court order in part of confiscation on the territory of the Russian
Federation of the proceeds of crime
1. The request of the competent authority of the foreign state for recognition
and enforcement of the verdict, foreign court order in part of confiscation on
the territory of the Russian Federation of the proceeds of crime shall
contain:
1) name of the competent authority of the foreign state which sent the
request;
2) name of the criminal case and information on the court of the foreign
state which ruled the verdict or the order;
3) information on the property, which is located on the territory of the
Russian Federation and is subject to forfeiture as the proceeds of crime,
as well as information on the proprietor, owner of the property, includ-
ing date and place of birth, citizenship, occupation, place of residence or
location, and for legal entities—name and location;
4) request of the competent authority of the foreign state on recognition of
the verdict, foreign court order in part of confiscation of the proceeds of
crime and enforcement of the decision regarding confiscation of the
proceeds of crime in accordance with the verdict or the order.
2. The request of the competent authority of the foreign state can specify other
information, including phone numbers, fax numbers, E-mail addresses, if
they are necessary for the proper and timely consideration of the case.
3. The request of the competent authority of the foreign state shall include
documents provided by the international treaty of the Russian Federation,
162 | Orders without Borders
and if this is not stipulated by the international treaty of the Russian
Federation the following documents shall be attached:
1) certified by the foreign court copy of the verdict, foreign court order,
which provides for the confiscation on the territory of the Russian
Federation of the proceeds of crime;
2) document that the verdict, foreign court order entered into legal force;
3) document on the execution of the verdict, foreign court order if they
had been previously executed on the territory of the respective foreign
state;
4) document confirming that the property subject to forfeiture is located
on the territory of the Russian Federation;
5) document from which it follows that the person, against whom the
default judgment was made on confiscation on the territory of
the Russian Federation of the proceeds of crime, did not participate in
the proceedings, despite the fact that he/she was timely and duly noti-
fied of the place, date and time of the hearing of the case;
6) certified translation of documents referred to in paragraphs 1-5 of this
Part to the Russian language.
Article 473.3. Court considering the request for recognition and enforcement of
the verdict, foreign court order in part of confiscation on the territory of the
Russian Federation of the proceeds of crime
The request of the competent authority of the foreign state on recognition and
enforcement of the verdict, foreign court order in part of confiscation on the
territory of the Russian Federation of the proceeds of crime, addressed in the
prescribed manner, shall be sent by the Ministry of Justice of the Russian
Federation for the consideration to the Republic Court, krai or regional court,
court of the city with federal status, court of the autonomous region or court of
the autonomous district at the place of residence or location in the Russian
Federation of the person in respect of whose property, by the verdict, foreign
court order, the decision on confiscation was made, and in the case if such person
has no place of residence or location in the Russian Federation or his/her domi-
cile is unknown—at location in the Russian Federation of his/her property sub-
ject to forfeiture.
Article 473.4. Procedure for considering the request for recognition and enforce-
ment of the verdict, foreign court order in part of confiscation on the territory of
the Russian Federation of the proceeds of crime
1. The request of the competent authority of the foreign state for recognition
and enforcement of the verdict, foreign court order in part of confiscation on
the territory of the Russian Federation of the proceeds of crime shall be con-
sidered by a single judge in open court with a notice about the place, date
and time of request consideration of the person in respect of whose prop-
erty, by the verdict, foreign court order, the decision on confiscation was
made, other interested parties in whose ownership, possession, use or dis-
posal of the property subject to forfeiture is, and (or) their representatives,
the competent authority of the foreign state and the attorney.
2. Persons referred to in paragraph 1 of this Article, living or staying on the
territory of the Russian Federation, shall be notified of the place, date and
Appendix C | 163
time of the hearing no later than 30 days prior to the day of the hearing.
Notice to persons, living or staying outside the Russian Federation, and the
competent authority of the foreign state shall be sent in the prescribed man-
ner, according to Part 3 of Article 453 of this Code, not later than 6 months
prior to the day of the hearing.
3. The person, in respect of whose property, by the verdict, foreign court order,
the decision on confiscation was made, held in custody and declared his/her
desire to participate in the consideration of the request from the competent
authority of the foreign state, shall be given by the court the right to partici-
pate in the hearing directly or via video conference, as well as the right to
inform the court of his/her position with the help of his/her representative
on his/her behalf or in writing.
4. Other interested parties in whose ownership, possession, use or disposal the
property subject to forfeiture is, and (or) their representatives can partici-
pate in the hearing.
5. The failure to appear in the court of persons, timely notified of the place, date
and time of the hearing, except persons whose participation in the hearing is
recognized by the court as compulsory, shall not preclude the consideration of
the request from the competent authority of the foreign state.
6. The consideration of the request from the competent authority of the for-
eign country shall start with the hearing of explanations of the person, in
respect of whose property, by the verdict, foreign court order, the decision
on confiscation was made, the representative of the competent authority of
the foreign state, interested parties, if they participate in the hearing, as well
as conclusions of the Prosecutor. Upon the consideration of the request, the
court shall decide on recognition and enforcement of the verdict, foreign
court order in part of confiscation on the territory of the Russian Federation
of the proceeds of crime, refusal to do so or recognition and partial enforce-
ment of the verdict, foreign court order.
7. If the court has any doubts in connection with the incompleteness or absence
of required information, the judge may request in the prescribed manner the
competent authority of the foreign state, submitting the said request, as well
as other persons participating in the consideration of the request, additional
clarifications, additional information and materials.
Article 473.5. Grounds for refusing recognition and enforcement of the verdict,
foreign court order in part of confiscation on the territory of the Russian
Federation of the proceeds of crime
Recognition and enforcement of the verdict, foreign court order in part of con-
fiscation on the territory of the Russian Federation of the proceeds of crime shall
not be permitted if:
1) execution of the verdict, foreign court order in part of confiscation of
the property contradicts to the Constitution of the Russian Federation,
generally recognized principles and norms of international law, interna-
tional treaties of the Russian Federation, the legislation of the Russian
Federation;
2) execution of the verdict, foreign court order in part of confiscation of
the property may cause damage to the sovereignty or security or other
essential interests of the Russian Federation;
164 | Orders without Borders
3) the verdict, foreign court order, providing for the confiscation of the
property, did not enter into legal force;
4) property subject to confiscation is located on the territory that is not
under the jurisdiction of the Russian Federation;
5) the act, in respect of which the verdict, foreign court order provides for
the confiscation of the property, was committed on the territory of the
Russian Federation and (or) the act is not recognized by the legislation
of the Russian Federation as a crime;
6) the legislation of the Russian Federation does not provide for the confis-
cation of the property for the act, similar to the act in respect of which
the verdict, foreign court order decided on confiscation;
7) in regard to the person referred to in the request of the competent
authority of the foreign state, the court of the Russian Federation ruled
the legally effective verdict in respect of the act, criminal proceedings
were terminated, as well as there is an irreversible decision on the ter-
mination of the preliminary investigation on the criminal case or refusal
of the initiation of the criminal case;
8) the verdict, foreign court order, providing for the confiscation of the
property, cannot be enforced due to the lapse or other grounds envis-
aged by the Constitution of the Russian Federation, international trea-
ties of the Russian Federation, the legislation of the Russian Federation;
9) the request of the competent authority of the foreign state and the
accompanying verdict, foreign court order, providing for the confisca-
tion of the property, have no evidence that the property subject to the
confiscation is the proceeds of the crime or is the income received from
criminal activities, as well as used to commit the crime;
10) in the Russian Federation in connection with the same act, there is the
criminal prosecution of the person regarding whose property the
request on confiscation is sent to the competent authority of the foreign
state;
11) the property, the confiscation of which was requested by the competent
authority of the foreign state, was charged by the verdict or decision of
the court of the Russian Federation in criminal, civil or administrative
proceedings;
12) the property, specified in the verdict, foreign court order, is not subject
to confiscation in accordance with the legislation of the Russian
Federation.
Article 473.6. Court decision upon the consideration of the request from the
competent authority of the foreign state on recognition and enforcement of the
verdict, foreign court order in part of confiscation on the territory of the Russian
Federation of the proceeds of crime
1. When considering the request from the competent authority of the foreign
state on recognition and enforcement of the verdict, foreign court order in
part of confiscation on the territory of the Russian Federation of the pro-
ceeds of crime, the court shall conclude on the presence of grounds under
Article 473.5 of the Code for the refusal of recognition and enforcement of
the verdict, foreign court order in part of confiscation on the territory of the
Appendix C | 165
Russian Federation of the proceeds of crime, shall rule on the refusal of rec-
ognition of the verdict, foreign court order and their enforcement.
2. In all other cases, the court shall decide on recognition of the verdict, foreign
court order in part of confiscation of the proceeds of crime and their enforce-
ment completely or partially, with the relevant order which specifies:
1) name of the court of the foreign state, place and date of the verdict, for-
eign court order;
2) information on the last place of residence, place of work and occupation
in the Russian Federation of the person convicted by the court of the
foreign state;
3) description of the crime for which the convicted person was found
guilty, and the criminal law of the foreign state under which he/she was
convicted and the decision on confiscation of the property was made;
4) article of the Criminal Code of the Russian Federation providing respon-
sibility for the crime committed by the convicted person and the appli-
cation of confiscation of the property;
5) information on the property located on the territory of the Russian
Federation and subject to confiscation;
6) appeal procedure established by Chapters 45.1, 47.1 and 48.1 of this
Code.
3. If the confiscation of a specific item, included in the property subject to for-
feiture, at the time of the court’s decision on recognition of the verdict, for-
eign court order in part of confiscation of the proceeds of crime and their
enforcement fully or partially, is impossible due to its use, sale, or other rea-
son, the court in accordance with Article 104.2 of the Criminal Code of the
Russian Federation shall determine the amount subject to confiscation that
equals the value of this item, or shall determine a different property the
value of which corresponds to the value of the item subject to confiscation
or comparable to its cost.
4. Copies of the order within 3 days from the date of the verdict shall be sent
by the court to the competent authority of the foreign state, the person in
respect of whose property, by the verdict, foreign court order, the decision
on confiscation was made, the Prosecutor, as well as other interested parties
in whose ownership, possession, use or disposal the property subject to for-
feiture is.
Article 473.7. Issue of the writ of execution and its enforcement
1. On the basis of the enforceable court decision on recognition and enforce-
ment of the verdict, foreign court order in part of confiscation on the terri-
tory of the Russian Federation of the proceeds of crime, the court shall issue
the writ, which shall contain the operative part of the verdict, foreign court
order, as well as the operative part of the court decision on recognition of the
verdict, foreign court order and their enforcement fully or partially.
2. The writ with copies of the verdict, foreign court order and the copy of the
court decision on recognition and enforcement of judgment the verdict, for-
eign court order shall be sent to a bailiff for execution in accordance with the
legislation of the Russian Federation on proceedings.
166 | Orders without Borders
SEYCHELLES
Mutual Assistance in Criminal Matters Act
Division 2—Requests by Foreign Countries
Request by a foreign country for enforcement of orders
27. (1) Where—
(a) a foreign country requests the Central Authority to make arrange-
ments for the enforcement of—
(i) a foreign forfeiture order, made in respect of a serious offence,
against property that is believed to be located in Seychelles; or
(ii) a foreign pecuniary penalty order, made in respect of a serious
offence, where some or all of the property available to satisfy
the order is believed to be located in Seychelles; and
(b) the Central Authority is satisfied that
(i) a person has been convicted of the offence; and
(ii) the conviction and the order are not subject to further appeal in
the foreign country, the Central Authority may authorise in
writing the making of an application for the registration of the
order in the Supreme Court.
(2) Where a foreign country requests the Central Authority to make arrange-
ments for the enforcement of a foreign restraining order, made in respect of
a serious offence, against property that is believed to be located in Seychelles,
the Central Authority may authorise the making of the arrangements for the
registration of the order in the Supreme Court.
(3) Where an application for the registration of a foreign order in accordance
with an authorisation is made under subsection (1) or subsection (2), the
Supreme Court shall, notwithstanding any other written law, register the
order accordingly.
(4) A foreign forfeiture order registered in the Supreme Court in accordance
with this section has effect and may be enforced as if it were a forfeiture
order made by the Supreme Court under a written law relating to the trac-
ing, confiscation or forfeiture of proceeds of a crime at the time of
registration.
(5) A foreign pecuniary penalty order registered in the Supreme Court in accor-
dance with this section has effect, and may be enforced, as if it were a pecu-
niary penalty order made by the Supreme Court under a written law relating
to the tracing, confiscation or forfeiture of the proceeds of a crime at the
time of registration and requiring the payment to the Republic of the amount
payable under the order.
Note: There is no subsection 27(6) in the last official (1996) revised edition.
(7) A foreign restraining order registered in the Supreme Court in accordance
with this section has effect, and may be enforced, as if it were a restraining
order made by the Supreme Court under any written law of Seychelles relat-
ing to the tracing, seizure, confiscation or forfeiture of the proceeds of a
crime at the time of registration.
Appendix C | 167
(8) Where an order is registered in the Supreme Court in accordance with this
section, a copy of any amendment made to the order (whether before or
after registration) may be registered in the same way as the order and the
amendment does not, for the purposes of this Act and a written law relating
to the tracing, confiscation or the forfeiture of the proceeds of a crime, have
effect until they are registered.
(9) An order or an amendment of an order shall be registered in the Supreme
Court by the registration, in accordance with the rules of the Court, of—
(a) a copy of the appropriate order or amendment sealed by the court or
other authority making that order or amendment; or
(b) a copy of that order or amendment duly authenticated in accordance
with section 34.
(10) A facsimile copy of a sealed or authenticated copy of an order or an amend-
ment of an order shall be regarded for the purposes of this Act as the same
as the sealed or authenticated copy but registration effected by means of the
facsimile copy ceases to have effect at the end of 21 days unless the sealed or
authenticated copy has been registered by then.
(11) The Central Authority may cause an application for the cancellation of—
(a) a foreign forfeiture order;
(b) a foreign pecuniary penalty order; or
(c) a foreign restraining order, under this Act.
(12) Without limiting the generality of subsection (11), the Central authority may,
give a direction under that subsection in relation to an order if the Central
Authority is satisfied that—
(a) the order has ceased to have effect in the foreign country in which the
order was made; or
(b) cancellation of the order is appropriate having regard to the arrange-
ments entered into between Seychelles and the foreign country in rela-
tion to the enforcement of orders of that kind.
(13) Where an application is made to the Supreme Court for cancellation of a
registration under subsection (11), the Court shall cancel the registration
accordingly.
Request by a foreign country for search and seizure warrants in respect of
illegal property
28. Where—
(a) a criminal proceeding or criminal investigation has commenced in a for-
eign country in respect of a serious offence;
(b) there are reasonable grounds to believe that illegal property in relation
to the offence is located in Seychelles; and
(c) the foreign country requests the Central Authority to obtain the issue of
a search warrant under a written law relating to the tracing, seizure,
confiscation or forfeiture of the proceeds of a crime in relation to the
illegal property, the Central Authority may authorise a police officer to
apply to a judicial officer for the search warrant requested by the for-
eign country.
168 | Orders without Borders
Request by a foreign country for restraining orders
29. Where—
(a) a criminal proceeding has commenced in a foreign country in respect of
a serious offence;
(b) there are reasonable grounds to believe that property that may be made
or is about to be made the subject of a foreign restraining order is located
in Seychelles; and
(c) the foreign country requests the Central Authority to obtain the issue of a
restraining order under a written law relating to tracing, seizure, confis-
cation or forfeiture of the proceeds of a crime against the property, the
Central Authority may cause an application to be made to the Supreme
Court for the restraining order requested by the foreign country.
Request by a foreign country for information gathering orders
30. (1) Where—
(a) a criminal proceeding or criminal investigation has commenced in a
foreign country in respect of a serious offence;
(b) a property-tracing document in relation to the offence is reasonably
believed to be located in Seychelles; and
(c) the foreign country requests the Central Authority to obtain the
issue of —
(i) a production order under a written law relating to the tracing,
seizure, confiscation or forfeiture of the proceed of a crime in
respect of the document; or
(ii) a search warrant under a written law referred to in subparagraph
(i) in respect of the document, the Central Authority may cause
an application to be made to the Supreme Court for the order
requested by the foreign country.
Note: There is no subsection 30(2) in the last official (1996) revised edition.
(3) Where—
(a) a criminal proceeding or criminal investigation has commenced in a for-
eign country in respect of a serious offence that is—
(i) a drug trafficking offence;
(ii) a money laundering offence in respect of proceeds of a drug traffick-
ing offence; or
(iii) an ancillary offence in relation to an offence of a kind referred to in
subparagraph (i) or (ii);
(b) information about transactions conducted through an account with a
financial institution in Seychelles is reasonably believed to be relevant to
the proceeding or investigation; and
(c) the foreign country requests the Central Authority to obtain the issue
of an order under the Misuse of Drugs [Cap. 133] Act, directing the
financial institution to give information to the police about transac-
tions conducted through the account, the Central Authority may cause
an application to be made to the Supreme Court for the order requested
by the foreign country.
Appendix C | 169
SINGAPORE
Mutual Assistance in Criminal Matters Act (MACMA)
Part III Requests to Singapore
Division 5—Enforcement of Foreign Confiscation Order, etc.
Requests for enforcement of foreign confiscation order
29.—(1) The appropriate authority of a prescribed foreign country may request
the Attorney-General to assist in—
(a) the enforcement and satisfaction of a foreign confiscation order, made
in any judicial proceedings instituted in that country, against property
that is reasonably believed to be located in Singapore; or
(b) where a foreign confiscation order may be made in judicial proceedings
which have been or are to be instituted in that country, the restraining
of dealing in any property that is reasonably believed to be located in
Singapore and against which the order may be enforced or which may
be available to satisfy the order.
(2) On receipt of a request referred to in subsection (1), the Attorney-General
may—
(a) in the case of subsection (1)(a), act or authorise the taking of action
under section 30 and the provisions of the Third Schedule; or
(b) in the case of subsection (1)(b), act or authorise the taking of action
under the provisions of the Third Schedule, and in that event the provi-
sions of the Third Schedule shall apply accordingly.
(3) For the purposes of this section and the provisions of the Third Schedule,
judicial proceedings that are criminal proceedings are instituted in a pre-
scribed foreign country when a person is produced and charged in court
with a foreign offence.
Registration of foreign confiscation order
30.—(1) The Attorney-General or a person authorised by him may apply to the
High Court for the registration of a foreign confiscation order.
(2) The General Division of the High Court may, on an application referred to in
subsection (1), register the foreign confiscation order if it is satisfied—
(a) that the order is in force and not subject to further appeal in the foreign
country;
(b) where a person affected by the order did not appear in the proceedings,
that the person received notice of the proceedings in sufficient time to
enable him to defend them; and
(c) that enforcing the order in Singapore would not be contrary to the
interests of justice.
(3) For the purposes of subsection (2), “appeal” includes—
(a) any proceedings by way of discharging or setting aside a judgment; and
(b) an application for a new trial or a stay of execution.
(4) The General Division of the High Court shall cancel the registration of a
foreign confiscation order if it appears to the General Division of the High
170 | Orders without Borders
Court that the order has been satisfied by payment of the amount due under
it or by the person against whom it was made serving imprisonment in
default of payment or other means.
(5) Where an amount of money (if any) payable or remaining to be paid under a
foreign confiscation order registered in the General Division of the High
Court under this section is expressed in a currency other than that of
Singapore, the amount shall, for the purpose of any action taken in relation
to that order, be converted into the currency of Singapore on the basis of the
exchange rate prevailing on the date of registration of the order.
(6) For the purposes of subsection (5), a certificate issued by the Monetary
Authority of Singapore and stating the exchange rate prevailing on a speci-
fied date shall be admissible in any judicial proceedings as evidence of the
facts so stated.
Proof of orders, etc., of prescribed foreign country
31.—(1) For the purposes of sections 29 and 30 and the Third Schedule—
(a) any order made or judgment given by a court of a prescribed foreign
country purporting to bear the seal of that court or to be signed by any
person in his capacity as a judge, magistrate or officer of the court, shall
be deemed without further proof to have been duly sealed or, as the case
may be, to have been signed by that person; and
(b) a document, duly authenticated, that purports to be a copy of any order
made or judgment given by a court of a prescribed foreign country shall
be deemed without further proof to be a true copy.
(2) A document is duly authenticated for the purpose of subsection (1)(b) if it
purports to be certified by any person in his capacity as a judge, magistrate
or officer of the court in question or by or on behalf of the appropriate
authority of that country.
Evidence in relation to proceedings and orders in prescribed foreign country
32.—(1) For the purposes of sections 29 and 30 and the Third Schedule, a certif-
icate purporting to be issued by or on behalf of the appropriate authority of
a prescribed foreign country stating that—
(a) judicial proceedings have been instituted and have not been concluded,
or that judicial proceedings are to be instituted, in that country;
(b) a foreign confiscation order is in force and is not subject to appeal;
(c) all or a certain amount of the sum payable under a foreign confiscation
order remains unpaid in that country, or that other property recoverable
under a foreign confiscation order remains unrecovered in that
country;
(d) a person has been notified of any judicial proceedings in accordance
with the law of that country; or
(e) an order (however described) made by a court of that country has the
purpose of—
(i) recovering, forfeiting or confiscating—
Appendix C | 171
(A) any payment or other reward received in connection with an
offence against the law of that country, or the value of any
such payment or reward; or
(B) any property derived or realised, directly or indirectly, from
any payment or other reward referred to in sub‑paragraph
(A), or the value of any such property; or
(ii) forfeiting, and destroying or otherwise disposing of—
(A) any drug or other substance in respect of which an offence
against the corresponding drug law of that country has been
committed; or
(B) any property which was used in connection with the commis-
sion of any offence against the law of that country, shall, in any
proceedings in a court, be admissible as evidence of the facts
so stated.
(2) In any such proceedings, a statement contained in a duly authenticated doc-
ument, which purports to have been received in evidence or to be a copy of
a document so received, or to set out or summarise evidence given in pro-
ceedings in a court in a prescribed foreign country, shall be admissible as
evidence of any fact stated therein.
(3) A document is duly authenticated for the purposes of subsection (2) if it
purports to be certified by any person in his capacity as a judge, magistrate
or officer of the court in the prescribed foreign country, or by or on behalf of
an appropriate authority of that country.
(4) Nothing in this section shall prejudice the admissibility of any evidence,
whether contained in any document or otherwise, which is admissible apart
from this section.
Third Schedule
Enforcement of Foreign Confiscation Orders
Part I
Preliminary
Interpretation
1. —(1) In this Schedule, unless the context otherwise requires—
[…]
“realisable property” means—
(a) where a foreign confiscation order (not being an instrumentality forfei-
ture order) has been made, any property in respect of which the order
was made; or
(b) where a foreign confiscation order (not being an instrumentality forfei-
ture order) may be made in proceedings which have been, or are to be,
instituted in the prescribed foreign country concerned, any property in
respect of which such an order could be made.
[…]
172 | Orders without Borders
(4) For the purposes of this Schedule, judicial proceedings instituted in a pre-
scribed foreign country that are criminal proceedings are concluded on the
occurrence of one of the following events:
(a) the discontinuance of the proceedings;
(b) the acquittal of the defendant;
(c) the quashing of the defendant’s conviction for the offence;
(d) the grant of a pardon in respect of the defendant’s conviction for the
offence;
(e) the court sentencing or otherwise dealing with the defendant in respect
of his conviction for the offence without having made a foreign confis-
cation order;
(f ) the satisfaction of a foreign confiscation order made in the proceedings,
whether by payment of the amount due under the order, by the defen-
dant serving imprisonment in default, by the recovery of all property
liable to be recovered, or otherwise.
(5) For the purposes of this Schedule, a foreign confiscation order is subject to
appeal as long as an appeal or further appeal is pending against the order or
(if it was made on a conviction) against the conviction; and for this purpose,
an appeal or further appeal shall be treated as pending (where one is com-
petent but has not been brought) until the expiration of the time for bringing
the appeal.
Application
2. This Schedule shall only apply to any matter which is the subject of a request
under section 29, and in relation to which the Attorney-General has decided
to act, or has authorised that action be taken, under the provisions of this
Schedule.
SOUTH AFRICA
International Co-operation in Criminal Matters Act
Chapter 4
Confiscation and transfer of proceeds of crime
Registration of foreign confiscation order
20. (1) When the Director-General receives a request for assistance in executing
a foreign confiscation order in the Republic, he or she shall, if satisfied—
(a) that the order is final and not subject to review or appeal;
(b) that the court which made the order had jurisdiction;
(c) that the person against whom the order was made, had the opportunity
of defending himself or herself;
(d) that the order cannot be satisfied in full in the country in which it was
imposed;
(e) that the order is enforceable in the requesting State; and
(f ) that the person concerned holds property in the Republic, submit such
request to the Minister for approval.
Appendix C | 173
(2) Upon receiving the Minister’s approval of the request contemplated in sub-
section (1), the Director-General shall lodge with the clerk of a magistrate’s
court in the Republic a certified copy of such foreign confiscation order.
(3) When a certified copy of a foreign confiscation order is lodged with a clerk
of a magistrate’s court in the Republic, that clerk of the court shall register
the foreign confiscation order—
(a) where the order was made for the payment of money, in respect of the
balance of the amount payable thereunder; or
(b) where the order was made for the recovery of particular property, in
respect of the property which is specified therein.
(4) The clerk of the court registering a foreign confiscation order shall forth-
with issue a notice in writing addressed to the person against whom the
order has been made—
(a) that the order has been registered at the court concerned; and
(b) that the said person may, within the prescribed period and in the pre-
scribed manner, apply to that court for the setting aside of the registra-
tion of the order.
(5) (a) Where the person against whom the foreign confiscation order has
been made is present in the Republic, the notice contemplated in sub-
section (4) shall be served on such person in the prescribed manner.
(b) Where the said person is not present in the Republic, he or she shall in
the prescribed manner be informed of the registration of the foreign
confiscation order.
Effect of registration of foreign confiscation order
21. (1) When any foreign confiscation order has been registered in terms of sec-
tion 20, such order shall have the effect of a civil judgment of the court at which
it has been registered in favour of the Republic as represented by the Minister.
(2) A foreign confiscation order registered in terms of section 20 shall not be
executed before the expiration of the period within which an application in
terms of section 20(4)(b) for the setting aside of the registration may be
made, or if such application has been made, before the application has been
finally decided.
(3) The Director-General shall, subject to any agreement or arrangement
between the requesting State and the Republic, pay over to the requesting
State any amount recovered in terms of a foreign confiscation order, less all
expenses incurred in connection with the execution of such order.
Setting aside of registration of foreign confiscation order
22. (1) The registration of a foreign confiscation order in terms of section 20
shall, on the application of any person against whom the order has been made,
be set aside if the court at which it was registered is satisfied—
(a) that the order was registered contrary to a provision of this Act;
(b) that the court of the requesting State had no jurisdiction in the matter;
(c) that the order is subject to review or appeal;
174 | Orders without Borders
(d) that the person against whom the order was made did not appear at the
proceedings concerned or did not receive notice of the said proceedings
as prescribed by the law of the requesting State or, if no such notice has
been prescribed, that he or she did not receive reasonable notice of such
proceedings so as to enable him or her to defend him or her at the
proceedings;
(e) that the enforcement of the order would be contrary to the interests of
justice; or
(f ) that the order has already been satisfied.
(2) The court hearing an application referred to in subsection (1) may at any
time postpone the hearing of the application to such date as it may
determine.
Registration of foreign restraint order
24. (1) When the Director-General receives a request for assistance in enforcing
a foreign restraint order in the Republic, he or she may lodge with the registrar
of a division of the Supreme Court a certified copy of such order if he or she is
satisfied that the order is not subject to any review or appeal.
(2) The registrar with whom a certified copy of a foreign restraint order is
lodged in terms of subsection (1), shall register such order in respect of the
property which is specified therein.
(3) The registrar registering a foreign restraint order shall forthwith give notice
in writing to the person against whom the order has been made—
(a) that the order has been registered at the division of the Supreme Court
concerned; and
(b) that the said person may within the prescribed period and in terms of
the rules of the court apply to that court for the setting aside of the reg-
istration of the order.
(4) (a) Where the person against whom the foreign restraint order has been
made is present in the Republic, the notice contemplated in subsection
(3) shall be served on such person in the prescribed manner.
(b) Where the said person is not present in the Republic, he or she shall in
the prescribed manner be informed of the registration of the foreign
restraint order.
Effect of registration of foreign restraint order
25. When any foreign restraint order has been registered in terms of section 24,
that order shall have the effect of a restraint order made by the division of the
Supreme Court at which it has been registered.
Setting aside of registration of foreign restraint order
26. (1) The registration of a foreign restraint order in terms of section 24 shall, on
the application of the person against whom the order has been made, be set aside
if the court at which the order was registered is satisfied—
(a) that the order was registered contrary to a provision of this Act;
(b) that the court of the requesting State had no jurisdiction in the matter;
(c) that the order is subject to review or appeal;
Appendix C | 175
(d) that the enforcement of the order would be contrary to the interests of
justice; or
(e) that the sentence or order in support of which the foreign restraint
order was made, has been satisfied in full.
(2) The court hearing an application referred to in subsection (1) may at any
time postpone the hearing of the application to such date as it may
determine.
Admissibility of foreign documents
30. Any deposition, affidavit, record of any conviction or any document evidenc-
ing any order of a court, issued in a foreign State, or any copy or sworn translation
thereof, may be received in evidence at any proceedings in terms of a provision
of this Act if it is—
(a) authenticated in the manner in which foreign documents are authenti-
cated to enable them to be produced in any court in the Republic; or
(b) authenticated in the manner provided for in any agreement with the
foreign State concerned.
Regulations under the International Co-Operation in Criminal Matters
Act, 1996
Chapter 4
Foreign Confiscation Orders
Registration of foreign confiscation order
10. Whenever a certified copy of a foreign confiscation order is lodged with the
clerk of the court in terms of section 20(2) of the Act, such clerk of the court
shall register that order by—
(a) numbering the foreign confiscation order with a consecutive case num-
ber for the year during which it is lodged; and
(b) recording—
(i) where the order was made for the payment of money, the balance
in the currency of the Republic of the amount payable thereunder;
and
(ii) where the order was made for the recovery of particular property,
full particulars of that property, in so far as such particulars are
available, in favour of the Republic as represented by the Minister,
on the case cover in which the certified copy of the foreign confis-
cation order is filed.
Notice of registration of foreign confiscation order
11. (1) The written notice of registration of a foreign confiscation order contem-
plated in section 20(4) of the Act shall correspond substantially with Form 3
of the Annexure, and shall contain—
(a) the consecutive case number referred to in regulation 10(a);
(b) the date on which the foreign confiscation order was registered;
(c) in the case of the payment of money, the balance in the currency of the
Republic of the amount payable under the foreign confiscation order;
176 | Orders without Borders
(d) in the case of the recovery of particular property, full particulars of the
property specified in the foreign confiscation order in so far as such par-
ticulars are available; and
(e) a reference to the provisions of section 20(4)(b) of the Act and regula-
tions 12 and 13.
(2) (a) Where the person against whom the order has been made is present in
the Republic, the written notice of registration, together with a copy thereof,
is delivered to a sheriff who shall serve such notice on that person in accor-
dance with the manner provided for in regulation 7(2) to (6), and the provi-
sions of regulation 7(7) to (10) shall, read with the changes required by the
context, apply to such service.
(b) Where the person against whom the foreign confiscation order has
been made is not present in the Republic that person shall-
(i) be informed of the registration of the order in the manner provided
for in an agreement contemplated in section 27 of the Act or any
other agreement concluded with the foreign State where that per-
son is present; or
(ii) in the absence of an agreement referred to in subparagraph (i), be
informed of such registration by sending a copy of the written notice
of registration to that person by registered mail.
(c) The clerk of the court sending a copy of the notice in terms of paragraph
(b)(ii) to the person against whom the foreign confiscation order has
been made, shall require that proof of receipt thereof be returned to him
or her by the relevant postal authority.
Period within which a person may apply for setting aside of registration of
foreign confiscation order
12. (1) An application for the setting aside of the registration of a foreign
confiscation order in terms of section 20(4)(b) of the Act shall be made
within 20 court days from the date on which such registration came to the
knowledge of the applicant.
(2) Unless the applicant proves the contrary, it shall be presumed that where—
(a) the written notice of registration was served on that applicant person-
ally, he or she had knowledge of such registration on the date of service
of the notice;
(b) the written notice of registration was not served on that applicant per-
sonally, he or she had knowledge of such registration within 10 days
after the date of service of the notice;
(c) the written notice of registration was sent to that applicant by registered
mail, he or she had knowledge of such registration on the date of receipt
thereof indicated in the proof of receipt contemplated in regulation
11(2)(c); or
(d) that applicant was informed of such registration in any other manner,
he or she had knowledge of such registration on the date on which he or
she was so informed.
Manner in which a person may apply for setting aside of registration of foreign
confiscation order
Appendix C | 177
13. (1) An application for the setting aside the registration of a foreign confisca-
tion order shall be made to the court where that order was registered.
(2) Such an application shall be on notice which shall state—
(a) that an order for the setting aside of the registration of a foreign confis-
cation order is applied for;
(b) the grounds contemplated in section 22(1) of the Act on which the appli-
cation is based; and
(c) the date and time when the application will be made to the court, and
shall be accompanied by an affidavit, made by the applicant or a person
who can swear positively to the facts, in support of the grounds referred
to in paragraph (b).
(3) Delivery of such notice shall be effected to the Office of the State Attorney in
Pretoria, or a branch of that Office nearest to the court to which such an
application is made, not later than 20 court days before the day appointed
for the hearing of the application.
Chapter 5
Foreign Restraint Orders
Registration of foreign restraint order
14. Whenever a certified copy of a foreign restraint order is lodged with a regis-
trar of a division of the High Court in terms of section 24(1) of the Act, such
registrar shall register that order by—
(a) numbering the foreign restraint order with a consecutive case number
for the year during which it is lodged; and
(b) recording the restraint in respect of the property specified in the order
and full particulars of that property, in so far as such particulars are
available, on the case cover in which the certified copy of the foreign
restraint order is filed.
Notice of registration of foreign restraint order
15. (1) The written notice of registration of a foreign restraint order contem-
plated in section 24(3) of the Act shall correspond substantially with Form 4
of the Annexure, and shall contain—
(a) the consecutive case number referred to in regulation 14(a);
(b) the date on which the foreign restraint order was registered;
(c) the restraint in respect of the property specified in the order and full
particulars of that property in so far as such particulars are available;
and
(d) a reference to the provisions of section 24(3)(b) of the Act and regula-
tion 16.
Where the person against whom the foreign restraint order has been
(2) (a)
made is present in the Republic, the written notice of registration,
together with a copy thereof, shall be delivered to a sheriff who shall
serve such notice on that person in accordance with the manner pro-
vided for in regulation 7(2) to (6), and the provisions of regulation
7(7) to (10) shall, read with the changes required by the context, apply
to such service: Provided that the endorsement of the manner in
178 | Orders without Borders
which a copy of the notice was served, shall be returned to the regis-
trar of the High Court from whom the notice was received.
(b) Where the person against whom the foreign restraint order has been
made is not present in the Republic that person shall—
(i) be informed of the registration of the order in the manner provided
for in an agreement contemplated in section 27 of the Act or any
other agreement concluded with the foreign State where that
person is present; or
(ii) in the absence of an agreement referred to in subparagraph (i), be
informed of such registration by sending a copy of the written notice
of registration to that person by registered mail.
(c) The registrar of the High Court sending a copy of the notice in terms of
paragraph (b)(ii) to the person against whom the foreign restraint order
has been made, shall require that proof of receipt thereof be returned to
him or her by the relevant postal authority.
Period within which a person may apply for setting aside of registration of for-
eign restraint order
16. (1) An application for the setting aside of the registration of a foreign restraint
order contemplated in section 24(3)(b) of the Act shall be made within 20
court days from the date on which such registration came to the knowledge
of the applicant.
(2) Unless the applicant proves the contrary, it shall be presumed that where—
(a) the written notice of registration was served on that applicant person-
ally, he or she had knowledge of such registration on the date of service
of the notice;
(b) the written notice of registration was not served on that applicant per-
sonally, he or she had knowledge of such registration within 10 days
after the date of service of the notice;
(c) the written notice of registration was sent to that applicant by registered
mail, he or she had knowledge of such registration on the date of receipt
thereof indicated in the proof of receipt contemplated in regulation
15(2)(c); or
(d) that applicant was informed of such registration in any other manner,
he or she had knowledge of such registration on the date which he or
she was so informed.
SWITZERLAND
Federal Act on International Mutual Assistance in Criminal Matters
(Mutual Assistance Act, IMAC)
Section 2: Specific Mutual Assistance Measures
Art. 74a Handing over of objects or assets for the purpose of forfeiture or return
On request, objects or assets subject to a precautionary seizure may be
1.
handed over to the competent foreign authority after conclusion of the
mutual assistance proceedings (Art. 80d) for the purpose of forfeiture or
return to the person entitled.
Appendix C | 179
2. The objects or assets referred to in paragraph 1 include:
a. instruments which were used to commit the offence;
b. products of or profits from the offence, their replacement value and any
unlawful advantage;
c. gifts and other contributions which served to instigate the offence or
recompense the offender, as well as their replacement value.
3. The handing over may take place at any stage of the foreign proceedings,
normally based on a final and executable decision from the requesting State.
4. However, the objects or assets may be retained in Switzerland if:
a. the victim is habitually resident in Switzerland and they have to be
returned to him;
b. an authority asserts rights over them;
c. a person not involved in the offence and whose claims are not guaran-
teed by the requesting State shows probable cause that he has acquired
rights over these objects and assets in good faith in Switzerland, or if he
is habitually resident in Switzerland, in a foreign country; or
d. the objects or assets are necessary for pending criminal proceedings in
Switzerland or appear, because of their nature, to be subject to forfei-
ture in Switzerland.
5. Whenever a person claims to have rights over the objects or assets under
paragraph 4, its handing over to the requesting State shall be postponed
until the legal situation is clear. The objects or assets claimed may be handed
over to the person entitled if:
a. the requesting State agrees;
b. in the case of paragraph 4 letter b, the authority gives its consent; or
c. the claim has been recognised by a Swiss court.
6. Article 60 applies to fiscal liens.
7. Objects and assets to which Switzerland is entitled according to an asset
sharing agreement based on the Federal Act of 19 March 2004 on the
Division of Forfeited Assets 112 shall not be handed over in accordance with
paragraph 1.1.
UNITED KINGDOM
The Proceeds of Crime Act 2002 (External Requests and Orders) Order
2005
Part 2
Giving Effect in England and Wales to External Requests in Connection
with Criminal Investigations or Proceedings and to External Orders
Arising from Such Proceedings
Chapter 2
External Orders
180 | Orders without Borders
Applications to give effect to external orders
An application may be made by the relevant Director to the Crown
20.—(1)
Court to give effect to an external order.
(2) No application to give effect to such an order may be made otherwise than
under paragraph (1).
(3) An application under paragraph (1)—
(a) shall include a request to appoint the relevant Director as the enforce-
ment authority for the order;
(b) may be made on an ex parte application to a judge in chambers.
Conditions for Crown Court to give effect to external orders
The Crown Court must decide to give effect to an external order by
21.—(1)
registering it where all of the following conditions are satisfied.
(2) The first condition is that the external order was made consequent on the
conviction of the person named in the order and no appeal is outstanding in
respect of that conviction.
(3) The second condition is that the external order is in force and no appeal is
outstanding in respect of it.
(4) The third condition is that giving effect to the external order would not be
incompatible with any of the Convention rights (within the meaning of the
Human Rights Act 1998(a)) of any person affected by it.
(5) The fourth condition applies only in respect of an external order which
authorises the confiscation of property other than money that is specified in
the order.
(6) That condition is that the specified property must not be subject to a charge
under any of the following provisions—
(a) section 9 of the Drug Trafficking Offences Act 1986(b);
(b) section 78 of the Criminal Justice Act 1988(c);
(c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland)
Order 1990(d);
(d) section 27 of the Drug Trafficking Act 1994(e);
(7) In determining whether the order is an external order within the meaning
of the Act, the Court must have regard to the definitions in subsections (2),
(4), (5), (6), (8) and (10) of section 447 of the Act.
(8) In paragraph (3) “appeal” includes—
(a) any proceedings by way of discharging or setting aside the order; and
(b) an application for a new trial or stay of execution.
Registration of external orders
22.—(1) Where the Crown Court decides to give effect to an external order, it
must—
(a) register the order in that court;
(b) provide for notice of the registration to be given to any person affected
by it; and
(c) appoint the relevant Director as the enforcement authority for the
order.
Appendix C | 181
(2) Only an external order registered by the Crown Court may be implemented
under this Chapter.
(3) The Crown Court may cancel the registration of the external order, or vary
the property to which it applies, on an application by the relevant Director
or any person affected by it if, or to the extent that, the court is of the opinion
that any of the conditions in article 21 is not satisfied.
(4) The Crown Court must cancel the registration of the external order, on an
application by the relevant Director or any person affected by it, if it appears
to the court that the order has been satisfied—
(a) in the case of an order for the recovery of a sum of money specified in it,
by payment of the amount due under it, or
(b) in the case of an order for the recovery of specified property, by the sur-
render of the property, or
(c) by any other means.
(5) Where the registration of an external order is cancelled or varied under
paragraph (3) or (4), the Crown Court must provide for notice of this to be
given to the relevant Director and any person affected by it.
Appeal to Court of Appeal about external orders
23.—(1) If on an application for the Crown Court to give effect to an external
order by registering it, the court decides not to do so, the relevant Director
may appeal to the Court of Appeal against the decision.
(2) If an application is made under article 22(3) or (4) in relation to the registra-
tion of an external order, the following persons may appeal to the Court of
Appeal in respect of the Crown Court’s decision on the application—
(a) the relevant Director;
(b) any person affected by the registration.
(3) On an appeal under paragraph (1) or (2) the Court of Appeal may—
(a) confirm or set aside the decision to register; or
(b) direct the Crown Court to register the external order (or so much of it
as relates to property other than to which article 21(6) applies).
Appeal to House of Lords about external orders
24.—(1) An appeal lies to the House of Lords from a decision of the Court of
Appeal on an appeal under article 23.
(2) An appeal under this article lies at the instance of any person who was
a party to the proceedings before the Court of Appeal.
(3) On an appeal under this article the House of Lords may—
(a) confirm or set aside the decision of the Court of Appeal, or
(b) direct the Crown Court to register the external order (or so much of
it as relates to property other than property to which article
21(6) applies).
Sums in currency other than sterling
25.—(1) This article applies where the external order which is registered under
article 22 specifies a sum of money.
182 | Orders without Borders
(2) If the sum of money which is specified is expressed in a currency other than
sterling, the sum of money to be recovered is to be taken to be the sterling
equivalent calculated in accordance with the rate of exchange prevailing at
the end of the working day immediately preceding the day when the Crown
Court registered the external order under article 22.
(3) The sterling equivalent must be calculated by the relevant Director.
(4) The notice referred to in article 22(1)(b) and (5) must set out the amount in
sterling which is to be paid.
[…]
Time for payment
26.—(1) This article applies where the external order is for the recovery of a
specified sum of money.
(2) Subject to paragraphs (3) to (6), the amount ordered to be paid under—
(a) an external order that has been registered under article 22, or
(b) where article 25(2) applies, the notice under article 22(1)(b), must be
paid on the date on which the notice under article 22(1)(b) is delivered
to the person affected by it.
(3) Where there is an appeal under article 23 or 24 and a sum fails to be paid
when the appeal has been determined or withdrawn, the duty to pay is
delayed until the day on which the appeal is determined or withdrawn.
(4) If the person affected by an external order which has been registered shows
that he needs time to pay the amount ordered to be paid, the Crown Court
which registered the order may make an order allowing payment to be made
in a specified period.
(5) The specified period—
(a) must start with the day on which the notice under article 22(1)(b) was
delivered to the person affected by the order or the day referred to in
paragraph (3), as the case may be, and
(b) must not exceed six months.
(6) If within the specified period the person affected by an external order
applies to the Crown Court which registered the order for the period to be
extended and the court believes that there are exceptional circumstances, it
may make an order extending the period.
(7) The extended period—
(a) must start with the day on which the notice under article 22(1)(b) was
delivered to the person affected by it or the day referred to in paragraph
(3), as the case may be, and
(b) must not exceed 12 months.
(8) An order under paragraph (6)—
(a) may be made after the end of the specified period, but
(b) must not be made after the end of the extended period.
(9) The court must not make an order under paragraph (4) or (6) unless it gives
the relevant Director an opportunity to make representations.
Appendix C | 183
Appointment of enforcement receivers
27.—(1) This article applies if—
(a) an external order is registered,
(b) it is not satisfied, and
(c) in the case of an external order for the recovery of a specified sum of
money, any period specified by order under article 26 has expired.
(2) On the application of the relevant Director, other than the Director of the
Agency, the Crown Court may by order appoint a receiver in respect of—
(a) where the external order is for the recovery of a specified sum of money,
realizable property;
(b) where the external order is for the recovery of specified property, that
property.
Part 5
Giving Effect in the United Kingdom to External Orders by Means of Civil
Recovery
Chapter 1
Introduction
Action to give effect to an order
142.—(1) The Secretary of State may forward an external order to the enforce-
ment authority.
(2) This Part has effect for the purpose of enabling the enforcement authority to
realise recoverable property (within the meaning of article 202) in civil pro-
ceedings before the High Court or Court of Session for the purpose of giving
effect to an external order.
(3) The powers conferred by this Part are exercisable in relation to any property
whether or not proceedings have been brought in the country from which
the external order was sent for criminal conduct (within the meaning of sec-
tion 447(8) of the Act) in connection with the property.
UNITED STATES
28 U.S. Code § 2467—Enforcement of foreign judgment
(a) Definitions.—In this section—
(1) the term “foreign nation” means a country that has become a party to
the United Nations Convention Against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances (referred to in this section as the “United
Nations Convention”) or a foreign jurisdiction with which the United
States has a treaty or other formal international agreement in effect pro-
viding for mutual forfeiture assistance; and
(2) the term “forfeiture or confiscation judgment” means a final order of a
foreign nation compelling a person or entity—
(A) to pay a sum of money representing the proceeds of an offense
described in Article 3, Paragraph 1, of the United Nations Convention,
184 | Orders without Borders
any violation of foreign law that would constitute a violation or an
offense for which property could be forfeited under Federal law if
the offense were committed in the United States, or any foreign
offense described in section 1956(c)(7)(B) of title 18, or property the
value of which corresponds to such proceeds; or
(B) to forfeit property involved in or traceable to the commission of
such offense.
(b) Review by Attorney General.—
(1) In general.—A foreign nation seeking to have a forfeiture or confiscation
judgment registered and enforced by a district court of the United States
under this section shall first submit a request to the Attorney General or
the designee of the Attorney General, which request shall include—
(A) a summary of the facts of the case and a description of the proceed-
ings that resulted in the forfeiture or confiscation judgment;
(B) certified [1] copy of the forfeiture or confiscation judgment;
(C) an affidavit or sworn declaration establishing that the foreign nation
took steps, in accordance with the principles of due process, to give
notice of the proceedings to all persons with an interest in the prop-
erty in sufficient time to enable such persons to defend against the
charges and that the judgment rendered is in force and is not subject
to appeal; and
(D) such additional information and evidence as may be required by the
Attorney General or the designee of the Attorney General.
(2) Certification of request.—
The Attorney General or the designee of the Attorney General shall
determine whether, in the interest of justice, to certify the request, and
such decision shall be final and not subject to either judicial review or
review under subchapter II of chapter 5, or chapter 7, of title 5 (com-
monly known as the “Administrative Procedure Act”).
(c) Jurisdiction and Venue.—
(1) In general.—
If the Attorney General or the designee of the Attorney General certi-
fies a request under subsection (b), the United States may file an appli-
cation on behalf of a foreign nation in district court of the United States
seeking to enforce the foreign forfeiture or confiscation judgment as if
the judgment had been entered by a court in the United States.
(2) Proceedings.—In a proceeding filed under paragraph (1)—
(A) the United States shall be the applicant and the defendant or another
person or entity affected by the forfeiture or confiscation judgment
shall be the respondent;
(B) venue shall lie in the district court for the District of Columbia or in
any other district in which the defendant or the property that may
be the basis for satisfaction of a judgment under this section may be
found; and
(C) the district court shall have personal jurisdiction over a defendant
residing outside of the United States if the defendant is served with
process in accordance with rule 4 of the Federal Rules of Civil
Procedure.
Appendix C | 185
(d) Entry and Enforcement of Judgment.—
(1) In general.—The district court shall enter such orders as may be neces-
sary to enforce the judgment on behalf of the foreign nation unless the
court finds that—
(A) the judgment was rendered under a system that provides tribunals or
procedures incompatible with the requirements of due process of law;
(B) the foreign court lacked personal jurisdiction over the defendant;
(C) the foreign court lacked jurisdiction over the subject matter;
(D) the foreign nation did not take steps, in accordance with the princi-
ples of due process, to give notice of the proceedings to a person
with an interest in the property of the proceedings [2] in sufficient
time to enable him or her to defend; or
(E) the judgment was obtained by fraud.
(2) Process.—
Process to enforce a judgment under this section shall be in accordance
with rule 69(a) of the Federal Rules of Civil Procedure.
(3) Preservation of property.—
(A) Restraining orders.—
(i) In general.—
To preserve the availability of property subject to civil or
criminal forfeiture under foreign law, the Government may
apply for, and the court may issue, a restraining order at any
time before or after the initiation of forfeiture proceedings
by a foreign nation.
(ii) Procedures.—
(I) In general.—
A restraining order under this subparagraph shall be
issued in a manner consistent with subparagraphs (A),
(C), and (E) of paragraph (1) and the procedural due
process protections for a restraining order under sec-
tion 983( j) of title 18.
(II) Application.—For purposes of applying such section
983( j)—
aa) references in such section 983( j) to civil forfeiture or
the filing of a complaint shall be deemed to refer to the
applicable foreign criminal or forfeiture proceedings;
and
(bb) the reference in paragraph (1)(B)(i) of such section
983( j) to the United States shall be deemed to refer to
the foreign nation.
(B) Evidence.—The court, in issuing a restraining order under subpara-
graph (A)—
(i) may rely on information set forth in an affidavit describing the
nature of the proceeding or investigation underway in the for-
eign country, and setting forth a reasonable basis to believe that
the property to be restrained will be named in a judgment of
forfeiture at the conclusion of such proceeding; or
186 | Orders without Borders
(ii) may register and enforce a restraining order that has been issued
by a court of competent jurisdiction in the foreign country and
certified by the Attorney General pursuant to subsection (b)(2).
(C) Limit on grounds for objection.—
No person may object to a restraining order under subparagraph (A)
on any ground that is the subject of parallel litigation involving the
same property that is pending in a foreign court.
(e) Finality of Foreign Findings.—
In entering orders to enforce the judgment, the court shall be bound by the
findings of fact to the extent that they are stated in the foreign forfeiture or
confiscation judgment.
(f ) Currency Conversion.—
The rate of exchange in effect at the time the suit to enforce is filed by the
foreign nation shall be used in calculating the amount stated in any forfei-
ture or confiscation judgment requiring the payment of a sum of money sub-
mitted for registration.
UNITED ARAB EMIRATES
Federal Decree-law No. (20) of 2018 on Anti-Money Laundering and
Combating the Financing of Terrorism and Financing of Illegal
Organisations
Article (20)
Any court injunction or court decision providing for the confiscation of funds,
proceeds or instrumentalities relating to money-laundering, terrorist financing
or financing of illegal organisations may be recognized if issued by a court or
judicial authority of another State with which the State has entered into a rati-
fied Convention.
ECO-AUDIT
Environmental Benefits Statement
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In support of this commitment, we leverage electronic publishing options and
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More information about the Bank’s environmental philosophy can be found at
http://www.worldbank.org/corporateresponsibility.
T his book offers an in-depth analysis of the concept of the direct
enforcement of foreign restraint and confiscation orders, a crucial step
in the process of asset recovery, including existing legal approaches and
related challenges. In order to provide a balanced and informed overview,
31 jurisdictions, representing different United Nations regional groups and
legal systems (civil law / common law / mixed systems), were selected as
the focus of the analysis. This approach provides a meaningful picture of
the situation worldwide from which generally applicable guidance could
be drawn. The study suggests a series of practical steps and good practices
for consideration by (1) countries exploring the possibility of introducing
a direct enforcement mechanism into their domestic legal frameworks
and (2) countries that are already in a position to directly enforce foreign
confiscation orders but that are considering options to streamline
processes and maximize results obtainable via direct enforcement
approaches. This new StAR Initiative knowledge product is addressed to a
broad range of law enforcement, justice, and asset recovery practitioners,
as well as bodies involved in legislative and regulatory processes. It will be
a useful tool in their work.
ISBN 978-1-4648-1830-1
SKU 211830