The Economic Crime and Cooperation Division is proud to publish this paper on the use of non-conviction based seizure and confiscation. The paper addresses the key principles and model components to develop robust and procedurally fair non-conviction based asset recovery regimes compatible with international standards. The paper also provides an overview of approaches taken by a variety of jurisdictions to non-conviction based asset recovery, as well as the compatibility of such procedures with human rights law.
The paper notes that non-conviction based (NCB) proceedings are gaining increasing recognition as a way forward and represent an important tool in the fight against illegally-obtained property and the proceeds of crime. The alignment of any national system with European Convention on Human Rights will be case-specific but, in principle, there is no incompatibility. However, for an NCB framework to be effective and fair, ensuring judicial oversight is fundamental. Legislative provisions should clearly define the scope of property subject to these measures, facilitate asset tracing and enable the swift restraint of assets, but should also include key safeguards such as procedures for affected persons to challenge confiscation orders and allowing third-parties to participate in proceedings where appropriate. Finally, as a means to combat transnational organised crime, the paper also highlights the importance of developing legal provisions which enable national authorities to recognise and carry out orders to seize assets from competent authorities in foreign jurisdictions.
Undoubtedly, the crafting of a sustainable NCB framework requires careful planning, robust debate and political will. Once introduced, however, it can be a mighty tool against dirty money and ill-gotten gains.