Know about United Nations Convention against Corruption Article 47 to 59 – Deals with Property Recovery, Int.Cooperation Part 6

Know about United Nations Convention against Corruption
Article 47 to 59 – Deals with Property Recovery, Int.Cooperation
Part 6

Article 47. Transfer of criminal proceedings

States Parties shall consider the possibility of transferring to one another
proceedings for the prosecution of an offence established in accordance with
this Convention in cases where such transfer is considered to be in the interests
of the proper administration of justice, in particular in cases where several
jurisdictions are involved, with a view to concentrating the prosecution.




Article 48. Law enforcement cooperation

1. States Parties shall cooperate closely with one another, consistent with
their respective domestic legal and administrative systems, to enhance the
effectiveness of law enforcement action to combat the offences covered by this
Convention. States Parties shall, in particular, take effective measures:

(a) To enhance and, where necessary, to establish channels of communi-
cation between their competent authorities, agencies and services in order to
facilitate the secure and rapid exchange of information concerning all aspects of
the offences covered by this Convention, including, if the States Parties con-
cerned deem it appropriate, links with other criminal activities;

(b) To cooperate with other States Parties in conducting inquiries with
respect to offences covered by this Convention concerning:

(i) The identity, whereabouts and activities of persons suspected of
involvement in such offences or the location of other persons
concerned;

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

(iii) The movement of property, equipment or other
instrumentalities used or intended for use in the commission of
such offences;

(c) To provide, where appropriate, necessary items or quantities of sub-
stances for analytical or investigative purposes;

(d) To exchange, where appropriate, information with other States Parties
concerning specific means and methods used to commit offences covered by
this Convention, including the use of false identities, forged, altered or false
documents and other means of concealing activities;

(e) To facilitate effective coordination between their competent authori-
ties, agencies and services and to promote the exchange of personnel and other
experts, including, subject to bilateral agreements or arrangements between the
States Parties concerned, the posting of liaison officers;

(f) To exchange information and coordinate administrative and other
measures taken as appropriate for the purpose of early identification of the
offences covered by this Convention.

2. With a view to giving effect to this Convention, States Parties shall
consider entering into bilateral or multilateral agreements or arrangements on
direct cooperation between their law enforcement agencies and, where such
agreements or arrangements already exist, amending them. In the absence of
such agreements or arrangements between the States Parties concerned, the
States Parties may consider this Convention to be the basis for mutual law
enforcement cooperation in respect of the offences covered by this Convention.
Whenever appropriate, States Parties shall make full use of agreements or
arrangements, including international or regional organizations, to enhance the
cooperation between their law enforcement agencies
3. States Parties shall endeavour to cooperate within their means to re-
spond to offences covered by this Convention committed through the use of
modern technology.

Article 49. Joint investigations

States Parties shall consider concluding bilateral or multilateral agreements
or arrangements whereby, in relation to matters that are the subject of investi-
gations, prosecutions or judicial proceedings in one or more States, the compe-
tent authorities concerned may establish joint investigative bodies. In the ab-
sence of such agreements or arrangements, joint investigations may be
undertaken by agreement on a case-by-case basis. The States Parties involved
shall ensure that the sovereignty of the State Party in whose territory such
investigation is to take place is fully respected.

Article 50. Special investigative techniques

1. In order to combat corruption effectively, each State Party shall, to the
extent permitted by the basic principles of its domestic legal system and in
accordance with the conditions prescribed by its domestic law, take such meas-
ures as may be necessary, within its means, to allow for the appropriate use by
its competent authorities of controlled delivery and, where it deems appropriate,
other special investigative techniques, such as electronic or other forms of sur-
veillance and undercover operations, within its territory, and to allow for the
admissibility in court of evidence derived therefrom.

2. For the purpose of investigating the offences covered by this Conven-
tion, States Parties are encouraged to conclude, when necessary, appropriate
bilateral or multilateral agreements or arrangements for using such special inves-
tigative techniques in the context of cooperation at the international level. Such
agreements or arrangements shall be concluded and implemented in full com-
pliance with the principle of sovereign equality of States and shall be carried out
strictly in accordance with the terms of those agreements or arrangements.

3. In the absence of an agreement or arrangement as set forth in para-
graph 2 of this article, decisions to use such special investigative techniques at
the international level shall be made on a case-by-case basis and may, when
necessary, take into consideration financial arrangements and understandings
with respect to the exercise of jurisdiction by the States Parties concerned.

4. Decisions to use controlled delivery at the international level may,
with the consent of the States Parties concerned, include methods such as
intercepting and allowing the goods or funds to continue intact or be removed
or replaced in whole or in part.

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 52. Prevention and detection of transfers of proceeds of crime

1. Without prejudice to article 14 of this Convention, each State Party
shall take such measures as may be necessary, in accordance with its domestic
law, to require financial institutions within its jurisdiction to verify the identity
of customers, to take reasonable steps to determine the identity of beneficial
owners of funds deposited into high-value accounts and to conduct enhanced
scrutiny of accounts sought or maintained by or on behalf of individuals who
are, or have been, entrusted with prominent public functions and their family
members and close associates. Such enhanced scrutiny shall be reasonably de-
signed to detect suspicious transactions for the purpose of reporting to compe-
tent authorities and should not be so construed as to discourage or prohibit
financial institutions from doing business with any legitimate customer.

2. In order to facilitate implementation of the measures provided for in
paragraph 1 of this article, each State Party, in accordance with its domestic law
and inspired by relevant initiatives of regional, interregional and multilateral
organizations against money-laundering, shall:

(a) Issue advisories regarding the types of natural or legal person to whose
accounts financial institutions within its jurisdiction will be expected to apply
enhanced scrutiny, the types of accounts and transactions to which to pay
particular attention and appropriate account-opening, maintenance and record-
keeping measures to take concerning such accounts; and

(b) Where appropriate, notify financial institutions within its jurisdiction,
at the request of another State Party or on its own initiative, of the identity of
particular natural or legal persons to whose accounts such institutions will be
expected to apply enhanced scrutiny, in addition to those whom the financial
institutions may otherwise identify.

3. In the context of paragraph 2 (a) of this article, each State Party shall
implement measures to ensure that its financial institutions maintain adequate
ecords, over an appropriate period of time, of accounts and transactions involv-
ing the persons mentioned in paragraph 1 of this article, which should, as a
minimum, contain information relating to the identity of the customer as well
as, as far as possible, of the beneficial owner.

4. With the aim of preventing and detecting transfers of proceeds of
offences established in accordance with this Convention, each State Party shall
implement appropriate and effective measures to prevent, with the help of its
regulatory and oversight bodies, the establishment of banks that have no physi-
cal presence and that are not affiliated with a regulated financial group. More-
over, States Parties may consider requiring their financial institutions to refuse
to enter into or continue a correspondent banking relationship with such insti-
tutions and to guard against establishing relations with foreign financial insti-
tutions that permit their accounts to be used by banks that have no physical
presence and that are not affiliated with a regulated financial group.

5. Each State Party shall consider establishing, in accordance with its
domestic law, effective financial disclosure systems for appropriate public offi-
cials and shall provide for appropriate sanctions for non-compliance. Each State
Party shall also consider taking such measures as may be necessary to permit its
competent authorities to share that information with the competent authorities
in other States Parties when necessary to investigate, claim and recover proceeds
of offences established in accordance with this Convention.

6. Each State Party shall consider taking such measures as may be nec-
essary, in accordance with its domestic law, to require appropriate public offi-
cials having an interest in or signature or other authority over a financial ac-
count in a foreign country to report that relationship to appropriate authorities
and to maintain appropriate records related to such accounts. Such measures
shall also provide for appropriate sanctions for non-compliance.

Article 53. Measures for direct recovery of property

Each State Party shall, in accordance with its domestic law:

(a) Take such measures as may be necessary to permit another State Party
to initiate civil action in its courts to establish title to or ownership of property
acquired through the commission of an offence established in accordance with
this Convention;

(b) Take such measures as may be necessary to permit its courts to order
those who have committed offences established in accordance with this Conven-
tion to pay compensation or damages to another State Party that has been
harmed by such offences; and (c) Take such measures as may be necessary to permit its courts or com-petent authorities, when having to decide on confiscation, to recognize another

State Party’s claim as a legitimate owner of property acquired through the
commission of an offence established in accordance with this Convention.

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 article 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:

(a) Take such 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;

(b) Take such measures as may be necessary to permit its competent
authorities, where they have jurisdiction, to order the confiscation of such
property of foreign origin by adjudication of an offence of money-laundering
or such other offence as may be within its jurisdiction or by other procedures
authorized under its domestic law; and

(c) Consider taking such measures as may be necessary to allow confisca-
tion 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
accordance with its domestic law:

(a) Take such measures as may be necessary to permit its competent
authorities 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 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;

(b) Take such measures as may be necessary to permit its competent
authorities 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
c) Consider taking additional measures to permit its competent authori-
ties 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 Conven-
tion for confiscation of proceeds of crime, property, equipment or other
instrumentalities 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:

(a) Submit the request to its competent authorities for the purpose of
obtaining 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 terri-
tory 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
mutandis, to this article. In addition to the information specified in article 46,
paragraph 15, requests made pursuant to this article shall contain:
(a) In the case of a request pertaining to paragraph 1 (a) of this article, a
description of the property to be confiscated, including, to the extent possible,
the location and, where relevant, the estimated value of the property and a
statement of the facts relied upon by the requesting State Party 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 infor-
mation 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;

(c) In the case of a request pertaining to paragraph 2 of this article, a
statement 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
multilateral 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
regulations 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 paragraphs 1 and 2 of this article conditional on the existence of a relevant
treaty, that State Party shall consider this Convention the necessary and suffi-
cient 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
evidence 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 56. Special cooperation

Without prejudice to its domestic law, each State Party shall endeavour to
take measures to permit it to forward, without prejudice to its own investiga-
tions, prosecutions or judicial proceedings, information on proceeds of offences
established in accordance with this Convention to another State Party without
prior request, when it considers that the disclosure of such information might
assist the receiving State Party in initiating or carrying out investigations, pros-
ecutions or judicial proceedings or might lead to a request by that State Party
under this chapter of the Convention.

Article 57. Return and disposal of assets

1. Property confiscated by a State Party pursuant to article 31 or 55 of
this Convention shall be disposed of, including by return to its prior legitimate
owners, pursuant to paragraph 3 of this article, by that State Party in accordance
with the provisions of this Convention and its domestic law.

2. Each State Party shall adopt such legislative and other measures, in
accordance with the fundamental principles of its domestic law, as may be
necessary to enable its competent authorities to return confiscated property,
when acting on the request made by another State Party, in accordance with this
Convention, taking into account the rights of bona fide third parties.

3. In accordance with articles 46 and 55 of this Convention and para-
graphs 1 and 2 of this article, the requested State Party shall:
(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;

(b) In the case of proceeds of any other offence covered by this Conven-
tion, when the confiscation was executed in accordance with article 55 of this
Convention 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, when the requesting State
Party reasonably establishes its prior ownership of such confiscated property to
the requested State Party or when the requested State Party recognizes damage
to the requesting State Party as a basis for returning the confiscated property;

(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 re-
quested 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.

Article 58. Financial intelligence unit

States Parties shall cooperate with one another for the purpose of prevent-ing and combating the transfer of proceeds of offences established in accordance
with this Convention and of promoting ways and means of recovering such
proceeds and, to that end, shall consider establishing a financial intelligence unit
to be responsible for receiving, analysing and disseminating to the competent
authorities reports of suspicious financial transactions.

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
undertaken pursuant to this chapter of the Convention.

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