ASSET SHARING Between countries in criminal cases Saskia de Vries, seconded prosecutor to the IPA 2010 project Fight against organised crime and corruption: Strenghtening the Prosecutors' Network

Seizure and confiscation of assets in another country General rule: the assets stay in the country where they were seized. Exception: if the assets were stolen or otherwise illegally obtained, the assets will need to be returned to bona fide owners Ratio: the country in which the assets were seized is rewarded for its efforts with regard to MLA. Art. 57 (a) In the case of embezzlement of public funds or of laundering of embezzled public funds as referred to in articles 17 and 23 of this Convention, when confiscation was executed in accordance with article 55 and on the basis of a final judgement in the requesting State Party, a requirement that can be waived by the requested State Party, return the confiscated property to the requesting State Party;

Asset sharing If assets have been seized in country B at the (rogatory) request of country A, these assets can be shared between country A and B after a final verdict or plea agreement (which includes confiscation) in country A. This is an exception to the rule that assets seized in another country will fall to that country.

Legal basis UN Convention against illicit trafficking of drugs and psychotropic substances (Vienna, 1988) CoE Convention on laundering, search, seizure and confiscation of proceeds of crime (Strasbourg, 1990) UN convention on Transnational Organized Crime (New York, 2004) UN Convention against Corruption (2005) Council Framework Decision on the application of the principle of mutual recognition of confiscation orders (2006) A few conventions also encourage the signatories to return assets to the requesting country if these will be used to compensate victims (CoE convention on laundering proceeds of crime, UNTOC e.g.) The UN Convention on Corruption also gives this possibility when the assets are (the result of) embezzlement of public funds.

UN Convention against illicit drugs Article 5: 5. a) Proceeds or property confiscated by a Party pursuant to paragraph 1 or paragraph 4 of this article shall be disposed of by that Party according to its domestic law and administrative procedures. b) When acting on the request of another Party in accordance with this article, a Party may give special consideration to concluding agreements on: i) Contributing the value of such proceeds and property, or funds derived from the sale of such proceeds or property, or a substantial part thereof, to intergovernmental bodies specializing in the fight against illicit traffic in and abuse of narcotic drugs and psychotropic substances; ii) Sharing with other Parties, on a regular or case-by-case basis, such proceeds or property, or funds derived from the sale of such proceeds or property, in accordance with its domestic law, administrative procedures or bilateral or multilateral agreements entered into for this purpose.

CoE Convention on laundering Proceeds of Crime Article 15 – Confiscated property Any property confiscated by the requested Party shall be disposed of by that Party in accordance with its domestic law, unless otherwise agreed by the Parties concerned

UN Convention on Transnational Crime Article 14: In accordance with articles 12 and 13 of this Convention, a State Party may give special consideration to concluding agreements or arrangements on: (a) Contributing the value of such proceeds of crime or property or funds derived from the sale of such proceeds of crime or property or a part thereof to the account designated in accordance with article 30, paragraph 2 (c), of this Convention and to intergovernmental bodies specializing in the fight against organized crime; (b) Sharing with other States Parties, on a regular or case-by-case basis, such proceeds of crime or property, or funds derived from the sale of such proceeds of crime or property, in accordance with its domestic law or administrative procedures.

UN Convention against Corruption Art. 57: (c) In all other cases, give priority consideration to returning confiscated property to the requesting State Party, returning such property to its prior legitimate owners or compensating the victims of the crime. 4. Where appropriate, unless States Parties decide otherwise, the requested State Party may deduct reasonable expenses incurred in investigations, prosecutions or judicial proceedings leading to the return or disposition of confiscated property pursuant to this article. 5. Where appropriate, States Parties may also give special consideration to concluding agreements or mutually acceptable arrangements, on a case by case basis, for the final disposal of confiscated property.

EU Framework decision Only applicable between member states of EU Assets under 10.000 euro will fall to the executing State in all other cases, 50 % of the amount which has been obtained from the execution of the confiscation order shall be transferred by the executing State to the requesting State.

Best practices Bring the topic up as soon as possible after the seizure of assets Involve the Asset Recovery Offices Draft a written agreement (see reader) 50/50 division is usual Think about exceptions, such as victim compensation and embezzlement of public funds