Civil Recovery of Criminal Assets and Terrorist Property: Harare Scheme on Mutual Assistance and Draft Model Legislative Provisions

Summary

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Introduction. Draft model law on civil recovery of criminal assets including terrorist property. Consideration by senior officials. Action by law ministers. Annex 1. Draft commonwealth model legislative provisions on the civil recovery of criminal assets including terrorist property. Division 1 - Interpretation. 1. Definitions. 2. General Provisions. Division 2 - Restraining Orders. 3. Restraining Order. 4. Ancillary orders - Receivers. 5. Ancillary orders - Persons Affected by Restraining Orders. 6. Notice to be given. 7. Duration of Restraining Order. 8. Registration of Restraining Order, etc. 9. Contravention of Restraining Order, etc. Division 3 - Forfeiture Orders. 10. Application for forfeiture order. 11. Forfeiture Order. 12. Ancillary orders - receivers. 13. Orders - Responsible Owner, Legitimate Owner and Lawful Owner. 14. Effect - Other Court Orders, etc. 15. Application to Set Aside Dealings With Property. 16. Forfeiture Order - Effective Ownership. 17. Application to Set Aside Forfeiture Order. 18. Limit on Purchase of Forfeited Property. 19. Contravention of Forfeiture Order. Division 4 - Compensation. 20. Compensation Order. Division 5 - Information Gathering. 21. Examination Order. 22. Examination Notice. 23. Examination. 24. Admissibility of Answers. 25. Offences. 26. Production Orders. 27. Evidential value of information. 28. Failure to comply with a production order. 29. Search Warrant. 30. Notice to Financial Institutions. 31. Offences. Division 6 - Evidentiary Provision. 32. Conviction Evidence of Unlawful Activity. 33. Effect of a person's death. Division 7 - Confiscated and Forfeited Assets Fund. 34. Establishment of the Fund. 35. Receipts and Disbursements. 36. Annual Report to Parliament.

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Civil Recovery of Criminal Assets and Terrorist Property: Harare Scheme on Mutual Assistance and Draft Model Legislative Provisions

Introduction

1. At their Meeting in St. Vincent and the Grenadines in 2002, Law Ministers considered measures to enhance capacity regarding the seizure and forfeiture of criminal assets. They asked the Commonwealth Secretariat to provide model legislative provisions dealing with the seizure and forfeiture of terrorist assets and for civil forfeiture regimes.

2. This paper and its Annex have been prepared in response to that mandate.

Draft model law on civil recovery of criminal assets including terrorist property

3. Over the past several years, a number of international initiatives including penal law Conventions such as the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances and the United Nations Convention against Transnational Organised Crime and the work of the Financial Action Task Force (FATF), have led to the development and adoption by states of legislation to allow for the restraint and forfeiture of the proceeds and instrumentalities of crime. Recent initiatives relating to terrorism, in particular the Convention for the Suppression of the Financing of Terrorism, have led to an expansion of forfeiture laws to cover terrorist property.

4. To date, much of the legislation adopted has provided for "conviction based" forfeiture where proceedings to forfeit assets are based on an underlying criminal conviction. Recently however, several states have also adopted laws that will permit "non-conviction based" or "civil recovery" of criminal assets as an additional tool to combat serious crime and the financing of terrorism. Under these regimes, the proceedings are generally in rem, brought against property as opposed to a person. Civil rules of procedure apply and forfeiture can be ordered on the basis of evidence to a standard of balance of probabilities.

5. Several examples of such legislation can be found in Commonwealth jurisdictions such as Australia, Canada, South Africa and the United Kingdom, as well as in Ireland and the United States.

6. Pursuant to the request of Law Ministers, the Secretariat has undertaken a project to develop a model law wh...

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