Part Forty-One: An In-depth Look at the Financial Action Task Force (FATF) Forty Recommendations- Recommendation 38: Mutual Legal Assistance: Freezing and Confiscation
Anti-money laundering efforts are especially successful when authorities can remove from the hands of criminals the profits derived from criminal activities. Recommendation 38 of the Financial Action Task Force Forty Recommendations covers freezing and confiscation of proceeds of crime through mutual legal assistance. Mutual legal assistance exists when there is legal cooperation between countries with the primary aim of collecting and exchanging information.
This recommendation requires countries to have the authority to expeditiously respond to requests from foreign countries as it relates to the identification of laundered property, proceeds from money laundering, predicate offences, terrorist financing, instruments which have been used in the commission of theses offences, instruments intended for use in these offences or any property of corresponding value. Further, upon identification, countries should be able to freeze, seize and confiscate all of which is stated above.
The authority that the country possess should also extend to responding to requests which are made on non-conviction based confiscation proceedings, unless this goes against domestic legislation.
The establishment of an asset forfeiture fund is also important. This facilitates all, or a portion, of confiscated property being deposited for law enforcement, health, education or any other purposes deemed appropriate by a country. Countries are encouraged to take the necessary measures to ensure that confiscated property can be shared between or among countries, this is especially true when a confiscation is directly or indirectly correlated to the coordinated efforts of law enforcement agencies across countries.
The success of seizures and confiscations depends on a properly coordinated effort between or among authorities, as such countries are encouraged to ensure a coordinated approach is in place, manned by well qualified professionals. Additionally, countries should establish a proper system for the management and when necessary the disposal of property which has been frozen, seized or confiscated.
During a mutual evaluation, assessors will seek to determine the effectiveness of the legislation relating to this matter, a rating will then be assigned to this recommendation. These forty recommendations form a critical foundation for the anti-money laundering/ counter financing of terrorism efforts, as such more information on them can be found on the Caribbean Financial Action Task Force (CFATF) website at https://www.cfatf-gafic.org.
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