Laundering of proceeds of crime

Recalling the United Nations Convention against Transnational Organized Crime, in particular its articles 12, paragraph 1, 13 and 14,

Agreement between the Government of ____________________ and the Government of ____________________ regarding the sharing of confiscated proceeds of crime or property

The Party transferring the proceeds of crime or property assumes no liability or responsibility for the proceeds of crime or property once they have been transferred and relinquishes all right or title to and interest in the transferred proceeds of crime or property.

Model Bilateral Agreement on the Sharing of Confiscated Proceeds of Crime or Property

Model Bilateral Agreement on the Sharing of Confiscated Proceeds of Crime or Property

(a) Proceeds of crime derived from offences established in accordance with this Convention or property the value of which corresponds to that of such proceeds

(ii) The movement of proceeds of crime or property derived from the commission of such offences

1. In sharing confiscated proceeds of crime or property in accordance with this Agreement

(a) In the currency of the Party where the proceeds of crime or property are located and

Adopts the Model Bilateral Agreement on the Sharing of Confiscated Proceeds of Crime or Property, annexed to the present resolution, as a useful framework that could be of assistance to States interested in negotiating and concluding bilateral agreements to facilitate the sharing of proceeds of crime

(g) Identifying or tracing proceeds of crime, property, instrumentalities or other things for evidentiary purposes

1. Where a Party proposes to share confiscated proceeds of crime or property with the other Party, it shall

4. If such proceeds of crime have been transformed or converted, in part or in full, into other property, such property shall be liable to the measures referred to in this article instead of the proceeds.

2. On receipt of a request for sharing confiscated proceeds of crime or property made in accordance with the provisions of this article, the Party where confiscated proceeds of crime or property are located shall share with the other Party such proceeds of crime or property, as set out in article 3 of this Agreement.

(e) Proceeds of crime shall mean any property derived from or obtained, directly or indirectly, through the commission of an offence

Some representatives informed the meeting that, in their countries, funds or accounts had been established where confiscated proceeds of crime or property were deposited and could be made available for sharing.

(a) The proportion of the confiscated proceeds of crime or property to be shared shall be determined by the Parties on a quantum meruit basis or on any other reasonable basis agreed upon by the Parties

Urges Member States to inform the Secretary General periodically of efforts undertaken to establish agreements in the area of sharing confiscated proceeds of crime or property

The work of the intergovernmental expert group was welcomed as an example of the effort of the international community to confiscate the proceeds of crime and put them to proper use.

At its 1st meeting, on 26 January, several representatives made presentations on national systems for sharing confiscated proceeds of crime or property.

In their contributions, representatives illustrated in detail how the confiscation of proceeds of crime or property and their disposal were regulated in their respective countries and made reference to specific cases.

Representatives also indicated how confiscated proceeds of crime or property were returned or shared according to their national systems and how they had been disposed of in specific cases.

The Parties agree that it may not be appropriate to share where the value of the confiscated proceeds of crime or property is de minimis, subject to previous consultations between them.

Several speakers called for a renewed focus on the prevention and control of money laundering and the confiscation of criminal proceeds, with a view to impeding criminals from disguising and benefiting from their ill gotten gains.

In addition, a case was described in which the return of proceeds of crime or property for the purpose of restitution to victims had been agreed to without a formal confiscation and as the result of negotiation.

In making the transfer, the Parties recognize that all right or title to and interest in the transferred proceeds of crime or property have already been adjudicated and that no further judicial proceedings are necessary to complete the confiscation.

a. Criminal activities of the organized criminal group

Where the domestic law of a State requires it to sell confiscated proceeds of crime or property and only permits it to share funds, this provision may be unnecessary.

Unless otherwise agreed, where a Party transfers confiscated proceeds of crime or property pursuant to article 5, paragraph 1 (b), of this Agreement, the other Party shall use the proceeds of crime or property for any lawful purpose at its discretion.

In his opening remarks, the Director welcomed the participants and expressed satisfaction at the high number of countries attending the meeting, which indicated the interest of the international community in addressing the issue of the disposal of confiscated proceeds of crime.

5. If such proceeds of crime have been intermingled with property acquired from legitimate sources, such property shall, without prejudice to any powers relating to freezing or seizure, be liable to confiscation up to the assessed value of the intermingled proceeds.

Most representatives indicated that their national systems required final confiscation, obtained on the basis of a judgement, as a precondition for the sharing of proceeds of crime or property and outlined the different means by which confiscation could be obtained.

Before the draft decision was adopted, the representative of Cuba made a statement after it was adopted, the representative of the United States made a statement (see E 2005 SR.9).

During the presentations the relevance and the importance of sharing confiscated proceeds of crime or property was generally recognized as a matter of fairness as well as for the role that it could play in fostering and strengthening international cooperation in criminal matters.

(b) Facilitating the exchange of information among States Parties on patterns and trends in corruption and on successful practices for preventing and combating it and for the return of proceeds of crime, through, inter alia, the publication of relevant information as mentioned in this article

(a) Determine, at its discretion and in accordance with its domestic law and policies, the proportion of the confiscated proceeds of crime or property to be shared, which, in its view, corresponds to the extent of the cooperation afforded by the other Party and

knowledge by the offender of the criminal nature of the group or at least one of its criminal activities or objectives

(b) The Party holding the confiscated proceeds of crime or property shall transfer a sum equivalent to that proportion set forth in subparagraph (a) above to the other Party in accordance with article 6 of this Agreement.

Women returners

While some representatives pointed out that, according to their national systems, there must be a formal international agreement in order to proceed with the sharing of confiscated proceeds of crime or property, others indicated that such sharing could also be regulated on the basis of reciprocity.

The monitoring and supervisory role of State reporting would usefully incorporate State responsibility to provide information on PMCs both from sending and receiving States Additional use of other existing agencies and monitoring mechanisms to provide monitoring of criminal and other activities in which mercenaries are frequently involved.

Establishment of an intergovernmental expert group to prepare a draft model bilateral agreement on disposal of confiscated proceeds of crime covered by the United Nations Convention against Transnational Organized Crime and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988

1.2 In the context of effective anti terrorist strategy subparagraph 2 b) of the Resolution requires States, inter alia, to take steps to prevent the commission of terrorist acts.

8. States Parties may consider the possibility of requiring that an offender demonstrate the lawful origin of such alleged proceeds of crime or other property liable to confiscation, to the extent that such a requirement is consistent with the fundamental principles of their domestic law and with the nature of judicial and other proceedings.