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V. INTERNATIONAL STANDARDS
International standards in the field of confiscation of instrumentalities and proceeds of corruption
offences
and laundering of criminal proceeds are contained in the numerous international instruments adopted within
the UN, EU, OECD, Council of Europe as well as other international organisations and their institutions.
The most important of the international instruments are listed below.
A. UN Convention against Corruption
UN Convention against Corruption, which was adopted by the UN General Assembly by Resolution 58/4 of
31 October 2003, is the basic, global and the most complete international instrument in the area of combating
against corruption nowadays. The total number of States Parties was 186 (as of July 2018).
The Convention envisages a comprehensive set of measures on prevention of corruption and
money
laundering, commitments of states with respect to the criminalisation of acts of corruption and the laundering
of proceeds of crime, measures on freezing, seizure, and confiscation of instrumentalities and
proceeds of
such crimes, protection of witnesses, compensation for damages caused by corruption, measures of
international cooperation on relevant cases, including recovery of assets obtained through corruption.
The acts that States Parties to the UN Convention against Corruption have committed to recognise as crime
under their respective national legislation are classified as follows: bribery of foreign public officials and
officials of public international organizations, embezzlement, misappropriation or other diversion of
property by a public official, abuse of functions and undue influence for mercenary purposes,
illicit
enrichment, bribery and embezzlement of property in the private sector, laundering of proceeds of crime,
obstruction of justice and concealment of property. The Convention envisages the need to adopt measures to
establish the liability of legal persons for participation in the aforesaid offences (criminal, civil or
administrative liability).
The Convention provides definition for the proceeds of crime and corruption. Thus, ‘proceeds of crime’
mean any property derived from or obtained, directly or indirectly, through the commission of an offence
(paragraph E, Article 2). ‘Confiscation’ means the permanent deprivation of property by order of a court or
other competent authority (paragraph G, Article 2).
In accordance with paragraph 1 of Article 31 of the Convention, each State Party shall take, to the greatest
extent possible within its domestic legal system, such measures as may be necessary to enable confiscation
of:
(a) Proceeds of crime derived from offences established in accordance with this Convention
or property the
value of which corresponds to that of such proceeds;
(b) Property, equipment or other instrumentalities used in or destined for use in offences established in
accordance with this Convention.
If such proceeds of crime have been transformed or converted,
in part or in full, into other property, such
property shall be liable to the measures referred to in this article instead of the proceeds (paragraph 4 of
Article 31 of the Convention).
If such proceeds of crime have been intermingled with property acquired from legitimate sources, such
property shall, without prejudice to any powers relating to freezing or seizure, be liable to confiscation up to
the assessed value of the intermingled proceeds (paragraph 5 of Article 31 of the Convention).
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Income or other benefits derived from such proceeds of crime, from property into which such proceeds of
crime have been transformed or converted or from property with which such proceeds of crime have been
intermingled shall also be liable to the measures referred to in this article, in the same manner and to the
same extent as proceeds of crime (paragraph 6 of Article 31 of the Convention).
The Convention also encourages States Parties to consider the possibility of placing the burden
of proof onto
an offender so that he or she has to demonstrate the lawful origin of alleged proceeds of crime or other
property liable to confiscation, to the extent that such a requirement is consistent with the fundamental
principles of their domestic law and with the nature of judicial and other proceedings (paragraph 8 of Article
31 of the Convention).
At the same time, the Convention protects the property of
bona fide
third parties. For instance, pursuant to
paragraph 9 of Article 31 of the Convention, provisions of this article shall not be so construed
as to prejudice
the rights of
bona fide
third parties.
Mechanisms for international cooperation for purposes of forfeiture of instrumentalities and proceeds of
corruption offences and subsequent confiscation thereof are specified in detail in Articles 54 and 55 of the
UN Convention against Corruption.
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