12.3. General principles of AML/CFT mutual legal assistance

12.4. Mutual legal assistance: freezing and confiscation of assets related to money laundering and terrorist financing

Countries should ensure that they have the authority to take expeditious action in response to requests by foreign countries to identify, freeze, seize and confiscate the following (R. 38)

This authority should include the ability to respond to requests made on the basis of non-conviction-based confiscation proceedings and related provisional measures, unless this is inconsistent with fundamental principles of their domestic law

With regard to requests for cooperation made on the basis of nonconviction based confiscation proceedings, countries need not have the authority to act on the basis of all such requests, but should be able to do so, at a minimum in circumstances when a perpetrator is unavailable by reason of death, flight, absence, or the perpetrator is unknown

There should be effective mechanisms for managing such property, instrumentalities or property of corresponding value, and arrangements for coordinating seizure and confiscation proceedings, which should include the sharing of confiscated assets

Countries should consider establishing an asset forfeiture fund into which all, or a portion of, confiscated property will be deposited for law enforcement, health, education, or other appropriate purposes

It should be made possible to share confiscated property between countries, in particular, when confiscation is directly or indirectly a result of coordinated law enforcement actions

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12.5. Extradition in relation to money laundering and terrorist financing

Countries should constructively and effectively execute extradition requests in relation to ML/TF, without undue delay and take all possible measures to ensure that they do not provide safe havens for individuals charged with the financing of terrorism, terrorist acts or terrorist organizations (R. 38), in particular

Or at the request of the country seeking extradition, submit the case, without undue delay, to its competent authorities for the purpose of prosecution of the offences set forth in the request (where a country does not extradite persons solely on the grounds of nationality)

Where dual criminality is required for extradition, that requirement should be deemed to be satisfied regardless of whether both countries place the offence within the same category of offence, or denominate the offence by the same terminology, provided that both countries criminalize the conduct underlying the offence

Those authorities should take their decision and conduct their proceedings in the same manner as in the case of any other offence of a serious nature under the domestic law of that country

Consistent with fundamental principles of domestic law, countries should have simplified extradition mechanisms, such as allowing direct transmission of requests for provisional arrests between appropriate authorities, extraditing persons based only on warrants of arrests or judgments, or introducing a simplified extradition of consenting persons who waive formal extradition proceedings

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12.6. International exchange of information between government agencies with an AML/CFT function

Countries should ensure that their competent authorities can rapidly, constructively and effectively provide the widest range of international cooperation in relation to ML, associated predicate offences and TF (R. 40)

Should a competent authority need bilateral or multilateral agreements or arrangements, such as a Memorandum of Understanding (MOU), these should be negotiated and signed in a timely way with the widest range of foreign counterparts

Clear channels or mechanisms should assure the effective transmission and execution of requests for information or other types of assistance

Competent authorities should have clear and efficient processes for the prioritization and timely execution of requests, and for safeguarding the information received

When making a request for cooperation, FIUs should make their best efforts to provide complete factual, and, as appropriate, legal information, including the description of the case being analyzed and the potential link to the requested country

Upon request and whenever possible, FIUs should provide feedback to their foreign counterparts on the use of the information provided, as well as on the outcome of the analysis conducted, based on the information provided

FIUs should exchange information with foreign FIUs, regardless of their respective status, and should have an adequate legal basis for providing cooperation on money laundering, associated predicate offences and terrorist financing (R. 40, IN)

Сапунцов Андрей Леонидович

The International AML/CFT Framework: Challenges for Financial Transnational Corporations from Developing Countries

Корректор М.В. Макарова

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