Volume 03 Issue 02-2023
32
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
I
SSUE
02
Pages:
32-38
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
This article is devoted to the analysis of the FATF Recommendations related to the seizure and confiscation of property
obtained by criminal means, which are mandatory for implementation in national legislation. The article discusses
individual FATF recommendations, their inherent features and features of foreign countries in this area.
KEYWORDS
Arrest, confiscation, FATF recommendations, implementation, money laundering, terrorist financing, laundered
property, proceeds of crime.
INTRODUCTION
To date, the institutions of arrest and confiscation of
property obtained by criminal means have reached a
high level of development in many countries. An
indicator of this fact is that the majority of countries
and jurisdictions receive high marks in mutual
evaluations of the national AML / CFT system
conducted by the FATF and regional groups like the
FATF in their regions. . In particular, countries such as
Australia, the Republic of Belarus, the United Kingdom,
along with many other countries, have received a
“compliance” rating under Recommendation 4, which
is specifically designed to regulate Confiscation issues.
These countries have achieved high results in the
implementation of the above analyzed international
norms and have achieved the creation of an effective
Research Article
ANALYSIS OF FOREIGN EXPERIENCE IN THE IMPLEMENTATION OF
INTERNATIONAL NORMS AND FATF STANDARDS
Submission Date:
February 18, 2023,
Accepted Date:
February 23, 2023,
Published Date:
February 28, 2023
Crossref doi:
https://doi.org/10.37547/ijlc/Volume03Issue02-06
Otaboev Bobur Ibrat Ugli
Lecturer At The Department Of Criminal Law, Criminology And Anti-Corruption Tashkent Statelaw University,
Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 03 Issue 02-2023
33
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
I
SSUE
02
Pages:
32-38
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
system for the arrest and confiscation of criminal
assets.
An analysis of the legislation of the Republic of
Uzbekistan based on the FATF Standards, international
conventions and other international acts showed that,
along with many positive aspects of the AML / CFT
system in the field of arrest and confiscation, there are
also some shortcomings both in the system and in the
legal regulation of these institutions of law in general.
The presence of identified shortcomings in the system
of arrest and confiscation in Uzbekistan creates the
need for a comprehensive study of these problems and
find suitable solutions to eliminate these problems. In
this regard, in order to find an optimal solution to the
problem, one should study the experience of countries
that have already established their own system of
arrest and confiscation and have fully implemented the
international FATF standards. In this regard, we can say
that, in our opinion, the study of experience in order to
solve the problems identified is the most appropriate
and expedient way at the moment.
If we talk about shortcomings in the field of arrest and
confiscation of criminal property in Uzbekistan, then it
should be noted that the country's legislation does not
comply with the FATF Standards, which were
demonstrated above. In particular, shortcomings exist
in
the
implementation
of
the
norms
of
Recommendations 4, 38, 30, which have already been
noted above in the analysis of the legislation of
Uzbekistan.
It should be noted that these shortcomings in the
legislation of Uzbekistan may adversely affect the
image of Uzbekistan in international rankings and
cause serious criticism from international experts..
More specifically, there are a number of disadvantages
that have been analyzed above. (1) One of them, as
mentioned above, is the insufficient regulation of the
institution of confiscation. Although the issues of
confiscation in the legislation of the country are
regulated by criminal procedural laws, there are no
substantive norms regulating this issue in the country.
This state of affairs can lead to ineffective
implementation of the rules on confiscation, as well as
the weakening of this institution in terms of legal
validity in practice. In addition, this circumstance also
applies to the issue of confiscation of the equivalent
value of property obtained by criminal means.
It can be said that in recent years many countries have
already solved problems of this kind in their legislations
and successfully implemented international standards
in this area. And this, in turn, was positively reflected in
the results of the mutual evaluation.
One of such countries in our region is the Republic of
Belarus. This country was rated "Compliance» in
mutual evaluation held in 2019. This assessment allows
us to say that this country has eliminated all the
shortcomings and its standards are fully consistent
with international standards.
If you pay attention, the Republic of Belarus, like many
other countries, settled the issue of confiscation by
criminal and criminal procedure legislation..
So Article 46-1 of The Criminal Code of the Republic of
Belarus regulates the issue of confiscation. This article
provides for a special confiscation, which means the
forced gratuitous seizure of property acquired by
criminal means, as well as material evidence and
objects of crime, property acquired with funds
obtained by criminal means, into the ownership of the
state.
Volume 03 Issue 02-2023
34
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
I
SSUE
02
Pages:
32-38
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
Also, this rule regulates the requirement to confiscate
the equivalent value of the property subject to
confiscation. According to the second part of the
article, if it is impossible to confiscate property
obtained by criminal means, income from such
property at the time of the decision to confiscate due
to the loss of such property, spending, or other
reasons, an amount equal to the amount of lost
property subject to circulation to the state revenue.
In this regard, the Russian Federation, which also
scored
well
in
the
Mutual
Evaluation
on
recommendation , with a “significantly compliant”
(SC) rating, has a separate provision in the Criminal
Code dedicated to confiscation. Article 104-1 of the
Criminal Code of the Russian Federation directly
provides for the issues of confiscation, according to
which confiscation of property is understood as a
forced gratuitous seizure and conversion into state
property on the basis of a guilty verdict for the crimes
established in this article
As for the confiscation of the equivalent value of
property subject to collection in state revenue, this
issue is separately regulated by Article 104-2. According
to this article, if the confiscation of property subject to
conversion into state revenue, at the time the court
decides on confiscation due to its use, sale or for any
other reason, the court makes a decision on the
confiscation of a sum of money that corresponds to
the value of this item. And in case of insufficient funds,
the court may confiscate other property equal in price
to the property subject to confiscation.
(2) The next problematic point of the legislation of the
Republic of Uzbekistan is in the implementation of the
norms of Recommendation 4 in terms of identifying
and tracking criminal property.
In this regard, the Russian Federation has good
experience in regulation, where the issues of
identifying and tracking property subject to
confiscation are well established. This issue in Russia is
for the most part regulated by the legislation on
operational-search activity. According to Article 2 of
the Federal Law of the Russian Federation “On
operational-
search activity”, the main tasks of
operational-search activity, in addition to detecting,
preventing, suppressing and solving crimes, obtaining
information about crimes, and searching for criminals,
is to identify property subject to confiscation. Also, by
this law, the bodies that carry out operational-search
activities are given broad powers to carry out the
above tasks, including the identification and tracking of
property subject to conversion into state revenue.
In addition, Article 73 of the Criminal Procedure Code
of the Russian Federation provides for circumstances
that must be proven without fail in the course of the
investigation of a criminal case. Among other
circumstances, paragraph 8 of the first part of this
article states that it is also mandatory to prove the fact
that the property is the result of a criminal act or is
income from property obtained by criminal means, or
was intended to be used as an instrument of crime or
other means to commit a crime or to finance terrorism.
A similar rule, similar to Article 73 of the Code of
Criminal Procedure of the Russian Federation, exists in
Article 89 of the Code of Criminal Procedure of the
Republic of Belarus.
Australia is also a country that has received a
'compliance' rating under Recommendation 4. This
country, like the Russian Federation and the Republic
of Belarus, empowers its competent authorities to
search, detect and trace property obtained by criminal
means for the purpose of subsequent confiscation. In
particular, under the Australian Proceeds of Crime Act,
Volume 03 Issue 02-2023
35
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
I
SSUE
02
Pages:
32-38
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
which provides for rules that allow institutions,
including financial institutions, to be required to
provide information regarding assets, accounts and
transactions that question the legal origin of these
assets, or are considered as evidence in a criminal case.
(3) In this regard, it would be appropriate to dwell on
Recommendation 30, which regulates the issues of the
powers of law enforcement and investigative agencies,
as well as the conduct of parallel financial
investigations. According to this recommendation, it is
mandatory for countries to authorize and oblige their
investigative and law enforcement agencies to
conduct parallel financial investigations. Such a rule
allows countries to effectively identify and track
property and assets subject to confiscation for state
revenue.
In this regard, as mentioned above, in our opinion,
there are certain gaps in the legislation in the Republic
of Uzbekistan. Although, in general, the country's
legislation does not contain provisions that prevent
parallel financial investigations, both simultaneously
with the investigation of predicate offenses and ML,
and separately from them. However, the procedure for
conducting parallel financial investigations is not fixed
at the legislative level. Also, the investigators of the
investigating authorities are not empowered to
conduct parallel financial investigations.
Parallel financial investigations are already a developed
activity. Different countries regulate this activity in
different ways. For example, in the Republic of Belarus,
the legal basis for conducting parallel financial
investigations is the Joint Decree of the law
enforcement agencies of the Republic of Belarus of the
General Prosecutor's Office of the Republic of Belarus,
the State Committee for Forensic Examinations of the
Republic of Belarus, the Investigative Committee of
the Republic of Belarus, the State Security Committee
of the Republic of Belarus, the Ministry of Internal
Affairs of the Republic of Belarus, the Ministry of
emergency situations of the Republic of Belarus, the
Ministry of Defense of the Republic of Belarus, the
State Control Committee of the Republic of Belarus,
the State Border Committee of the Republic of Belarus,
the State Customs Committee of the Republic of
Belarus,
dated
December
26,
2016
No.
36/278/338/77/42/7/32/17 /28/24 “On approval of the
Instruction on the procedure for interaction between
the prosecutor’s office, preliminary investigation,
inquiry and the State Forensic Examination Committee
of the Republic of Belarus in the course of pre-trial
proceedings ».
A similar rule is also reflected in legislative acts - US
codes. Under these laws, the US law enforcement
agencies responsible for investigating ML/TF and
predicate offenses are the Department of Justice, the
Department of Homeland Security, the Department of
the Treasury and the US Postal Service, which are given
the authority to introduce parallel financial
investigations.
In China, law enforcement agencies authorized to
investigate predicate offenses also have the right to
conduct parallel financial investigations.
Another important issue in the AML/CFT system is the
issue of mutual legal assistance, which is governed by
Recommendation 38, which requires countries to
grant powers of prompt action to country requests to
identify, freeze, seize and confiscate criminal assets.
And also have effective mechanisms for the
management of seized and confiscated property, tools
or property of an appropriate value, as well as
agreements on the coordination of procedures for the
seizure and confiscation of proceeds, which should
Volume 03 Issue 02-2023
36
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
I
SSUE
02
Pages:
32-38
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
include the division of confiscated assets. In this
regard, there are gaps in the legislation on the
regulation of these norms. This is manifested in the fact
that Uzbekistan does not regulate the issues of
confiscation of property without a court verdict for the
implementation of a foreign request. Management of
seized and confiscated property at the request of a
foreign state, as well as issues of disposal (transfer) of
confiscated property are also a problematic issue in the
country.
This issue is well regulated in Australia. Under the
Australian Mutual Assistance in Criminal Matters Act
1987 (MACMA) , Australia may detect, freeze, seize or
confiscate the proceeds or funds used in the
commission of foreign felonies at the request of
another country if the sanction for such offense
exceeds 12 months in prison or a fine of over A$51,000.
Apart from this section 34(2) MACMA, confiscation
without judgment is possible. And also according to
this law, it is possible to dispose of confiscated
property by confiscating it to the budget of Australia,
or, on the basis of an agreement with the country that
sent the request, to transfer the confiscated asset, or
part of it.
In the Russian Federation, this issue is regulated by the
basic law of the Russian Federation on AML / CFT,
criminal procedure and operational-search legislation.
Russia can enforce the decisions and sentences of
foreign courts in accordance with article 11 of the basic
AML / CFT law» . At the same time, the final decision is
made by Russian courts, that is, those issued by foreign
courts in relation to persons with proceeds of crime
must first be recognized by Russian courts. (Code of
Criminal Procedure of the Russian Federation, art.
473.1, 473.6 (3)). The only exception to forfeiture
without conviction is forfeiture in the event of the
death of the offender.
As for the transfer of confiscated property, in
accordance with Article 11 of the Federal Law No. 115,
Russia can fully or partially transfer property to a
foreign state, in particular when it recognizes and
executes a foreign court decision on confiscation.
As we can see, the result of the analysis of countries
shows that these countries have established a good
system of seizure and confiscation with legislation that
is fully consistent with international norms and the
FATF Standards.
After analyzing the leading countries in the field of
confiscation, taking into account the identified
shortcomings in the legislation of the Republic of
Uzbekistan, certain conclusions can be drawn to solve
these problems based on the experience of the
countries analyzed.
Thus, based on the analysis of countries, in order to
resolve the issue related to the problem of insufficient
regulation of the institution of confiscation, and
confiscation of the equivalent value of property
subject to conversion into state revenue, some
changes and additions to some legislative acts of the
Republic of Uzbekistan can be proposed.
(1), Firstly, the experience of countries such as the
Republic of Belarus and the Russian Federation and
others shows that the issue of regulating the
institution of confiscation is resolved by criminal law, in
the form of a separate rule requiring the confiscation
of property obtained by criminal means, as well as the
equivalent value of such assets. Based on this, in our
opinion, it would be advisable to introduce the relevant
norms into the general part of the Criminal Code of the
Republic of Uzbekistan, providing for separate norms
on the confiscation of property obtained by criminal
Volume 03 Issue 02-2023
37
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
I
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02
Pages:
32-38
SJIF
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FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
means, as well as the equivalent value of such
property. (see Appendix No. 1 );
(2) Secondly, in order to solve problems with the
identification and tracing of property subject to
confiscation, the competent authorities should be
authorized to carry out certain operational-search
activities to identify and trace such property. The
experience of the countries analyzed above indicates
the need for authorization of bodies at the level of law.
In particular, it is necessary to supplement the list of
tasks of operational-search activities provided for in
the Law of the Republic of Uzbekistan on operational-
search activities, the task of identifying and tracking
property obtained by criminal means, thereby giving
authority to employees of bodies entitled to conduct
operational-search activities. It should be noted that
such experience has been implemented in the laws of
the Russian Federation, in the Law on ORD of the
Russian Federation, as well as in the laws of Australia.
In addition, in order to give greater legal validity and
legitimacy to the arrest and confiscation of criminal
assets, it is necessary to supplement Article 82 of the
Code of Criminal Procedure of the Republic of
Uzbekistan, which provides for the circumstances to
be proved, also with the circumstance that the
property is the result of a crime or income from
property obtained from a crime, as indicated in the
Code of Criminal Procedure of the Republic of Belarus
(see Appendix No. 1). This addition to Article 82 of the
Code of Criminal Procedure of the Republic of
Uzbekistan. will ensure the legitimacy of confiscation
as a legitimate tool for depriving criminals of their
financial basis.
(3) Thirdly, the experience of advanced countries such
as China and the United States, as well as the
experience of the Republic of Belarus, shows that in
order to solve problems with the implementation of
the norms of Recommendation 30 on conducting
parallel financial investigations, it is necessary to
empower the investigating authorities with the
authority to conduct financial investigations by
amending Article 36 (Powers of the investigator) and
Article 38-1 (Powers of the interrogating officer) of the
Code of Criminal Procedure of the Republic of
Uzbekistan. That is, in this case, it is necessary to
supplement the list of powers of the investigator and
the interrogating officer with the power to conduct
parallel financial investigations.
(4) Fourthly, issues related to the confiscation of
property at the request of another country, as well as
the management of confiscated property at the
request of another country and the issue of disposing
of such property (the issue of transfer upon request)
are problematic in the legislation of Uzbekistan at the
moment. This issue is handled differently in different
countries. In Australia, separate laws, in the RF CPC and
the basic law. In this case, based on the analysis of
foreign countries, it can be proposed that this issue be
settled by the Criminal Procedure Law. Namely, it is
necessary to make additions to the Code of Criminal
Procedure in the form of a new article providing for the
rules on the recognition and enforcement of a
sentence, decisions of a court of a foreign state
regarding the confiscation of proceeds from crime
located on the territory of the Republic of Uzbekistan
(See Appendix No. 1).
In our opinion, the above proposals are necessary for
the introduction into the legislation of the Republic of
Uzbekistan in order to bring the legislation in the field
of arrest, confiscation and related regulations for these
institutions into compliance.
Volume 03 Issue 02-2023
38
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
I
SSUE
02
Pages:
32-38
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
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