NCJ Number
194831
Journal
Journal of Financial Crime Volume: 9 Issue: 3 Dated: February 2002 Pages: 268-276
Date Published
February 2002
Length
9 pages
Annotation
Since it is now common for criminals to generate proceeds of crime in one country and transfer those proceeds to another country, this paper discusses how the country in which the crime occurred can recovery the proceeds of the crime being held in another country.
Abstract
There is an international consensus that countries must cooperate with one another to address the globalization of money laundering. If this consensus is to yield productive countermeasures for money laundering, however, each country must have judicial procedures in place to specify what must be done when one country asks another to help it recover the proceeds of crime. Such procedures do not exist in many countries, and this is causing enormous problems for law enforcement. This paper describes the types of cases that, in the experience of U.S. law enforcement agencies have most often resulted in the deposit of criminal proceeds in foreign bank accounts or other avenues of investment. Legislative proposals are offered for dealing with the issues raised in cases where the United States has sought the assistance of other states in the recovery of assets from criminal enterprises. First, each country should have a law that makes it clear when its courts have jurisdiction to enter orders concerning property abroad. If a court has no jurisdiction over the property in another country, no order it issues concerning that property can have any effect. A major problem, however, is the absence of clear statutory authority that allows the courts in one country to seize or restrain property within its borders that is traceable to a crime committed abroad when a request is made by the state seeking to recover the property. This paper offers a proposal that can serve as a model for both United States and foreign legislation on this issue. Once the country in which the criminal assets have been deposited has agreed to freeze or restrain the assets on behalf of the country where the crimes were committed and has found a way to do so, there inevitably arises confusion over which state will proceed with the forfeiture action. There should be legislation that describes the procedure for determining whether the country in which the assets are held controls the assets while litigation proceeds in the country where the crimes were committed or whether the holding country will proceed with its own forfeiture action. Also discussed in this paper are the giving of notice to potential claimants, the litigation of challenges to the forfeiture, the enforcement of a foreign judgment, and equitable sharing. 9 references