Article 51, 53, 54, 56 and 59
International cooperation for the purpose of confiscation
The return of assets pursuant to this chapter is a fundamental principle of this Convention, and States Parties shall afford one another the widest measure of cooperation and assistance in this regard.
Article 51 provisions:
Each State Party, in order to provide mutual legal assistance pursuant to article 55 of this Convention with respect to property acquired through or involved in the commission of an offence established in accordance with this Convention, shall, in accordance with its domestic law:
(a) Take such measures as may be necessary to permit its competent authorities to give effect to an order of confiscation issued by a court of another State Party;
(b) Take such measures as may be necessary to permit its competent authorities, where they have jurisdiction, to order the confiscation of such property of foreign origin by adjudication of an offence of money-laundering or such other offence as may be within its jurisdiction or by other procedures authorized under its domestic law; and
(c) Consider taking such measures as may be necessary to allow confisca- tion of such property without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases.
(a) Take such measures as may be necessary to permit its competent authorities to give effect to an order of confiscation issued by a court of another State Party;
(b) Take such measures as may be necessary to permit its competent authorities, where they have jurisdiction, to order the confiscation of such property of foreign origin by adjudication of an offence of money-laundering or such other offence as may be within its jurisdiction or by other procedures authorized under its domestic law; and
(c) Consider taking such measures as may be necessary to allow confisca- tion of such property without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases.
Article 54 (part 1) provisions:
A State Party that has received a request from another State Party having jurisdiction over an offence established in accordance with this Conven- tion for confiscation of proceeds of crime, property, equipment or other instrumentalities referred to in article 31, paragraph1, of this Convention situated in its territory shall, to the greatest extent possible within its domestic legal system:
(a) Submit the request to its competent authorities for the purpose of obtaining an order of confiscation and, if such an order is granted, give effect to it; or
(b) Submit to its competent authorities, with a view to giving effect to it to the extent requested, an order of confiscation issued by a court in the terri- tory of the requesting State Party in accordance with articles 31, paragraph 1, and 54, paragraph 1 (a), of this Convention insofar as it relates to proceeds of crime, property, equipment or other instrumentalities referred to in article 31, paragraph 1, situated in the territory of the requested State Party.
(a) Submit the request to its competent authorities for the purpose of obtaining an order of confiscation and, if such an order is granted, give effect to it; or
(b) Submit to its competent authorities, with a view to giving effect to it to the extent requested, an order of confiscation issued by a court in the terri- tory of the requesting State Party in accordance with articles 31, paragraph 1, and 54, paragraph 1 (a), of this Convention insofar as it relates to proceeds of crime, property, equipment or other instrumentalities referred to in article 31, paragraph 1, situated in the territory of the requested State Party.
Article 55 (part 1) provisions:
Article 56 provisions:
Without prejudice to its domestic law, each State Party shall endeavour to take measures to permit it to forward, without prejudice to its own investiga- tions, prosecutions or judicial proceedings, information on proceeds of offences established in accordance with this Convention to another State Party without prior request, when it considers that the disclosure of such information might assist the receiving State Party in initiating or carrying out investigations, pros- ecutions or judicial proceedings or might lead to a request by that State Party under this chapter of the Convention.
Article 59 provisions:
States Parties shall consider concluding bilateral or multilateral agreements or arrangements to enhance the effectiveness of international cooperation undertaken pursuant to this chapter of the Convention.
National legislation on international cooperation is consistent with the requirements of UNCAC. International cooperation in the field of asset recovery is based on reciprocity. It provides for the possibility of sending and executing requests for international legal assistance, concluding multilateral and bilateral international agreements in this area.
International cooperation is carried out through the exchange of international requests for legal assistance through authorized bodies. ARMA actively cooperates with foreign countries in asset tracing and participates in international investigations. In the course of cooperation, the parties are mainly guided by the norms of bilateral agreements.
International cooperation is carried out through the exchange of international requests for legal assistance through authorized bodies. ARMA actively cooperates with foreign countries in asset tracing and participates in international investigations. In the course of cooperation, the parties are mainly guided by the norms of bilateral agreements.
In short
State of implementation
Ukraine acknowledges the importance of cooperation at the international level in order to establish an effective mechanism for the recovery of property acquired through corruption. International cooperation in the field of asset tracing and recovery is based on the principle of reciprocity. The Criminal Procedure Code of Ukraine stipulates that the National Anti-Corruption Bureau (NABU) may request international legal assistance in criminal proceedings during pre-trial investigation of corruption crimes and considers relevant requests from foreign competent authorities. The Ministry of Justice of Ukraine (hereinafter referred to as the MoJ) submits requests for international legal assistance in criminal proceedings to courts during trial and considers relevant requests from foreign courts. In order to execute requests, any procedural actions provided for by the CPC of Ukraine or an international treaty may be carried out on the territory of Ukraine. The possibility to enter into multilateral and bilateral treaties is provided for by the Law of Ukraine ‘On International Treaties of Ukraine’.
The Asset Recovery and Management Agency (hereinafter referred to as ARMA) is the leading government agency in the field of detecting, tracing and managing illegally acquired or unjustified assets. ARMA's status is set out in the Law of Ukraine ‘On the National Agency of Ukraine for Finding, Tracing and Management of Assets Derived from Corruption and Other Crimes’ (the Law on ARMA).
The ARMA, in particular:
- Takes measures to identify and trace assets in accordance with requests from pre-trial investigation authorities, prosecutors, and courts, and cooperates with these authorities to seize such assets and confiscate them or recover them for the state as a result of declaring them unjustified;
- Carries out international cooperation with the relevant authorities of foreign countries;
- Ensures cooperation with international, intergovernmental organizations, networks (including the Camden Asset Recovery Interagency Network (CARIN)), and represents Ukraine in this organization.
In exercising its powers to enforce court decisions, ARMA cooperates with the Ministry of Justice of Ukraine. Their cooperation is regulated by a joint order of these authorities adopted in 2020. With regard to freezing or seizing property on the basis of a foreign state's order or request, ARMA primarily cooperates with the Office of the Prosecutor General of Ukraine on the basis of a joint order on cooperation approved in 2022. ARMA also has established cooperation with law enforcement agencies on the basis of cooperation orders.
Recommendations for the establishment of formal and informal procedures for the exchange of information and the use of modern means of communication are being developed by Ukraine as part of the development of special cooperation and the adoption of the Asset Recovery Strategy for 2023-2025.
As of September 2023, Ukraine has concluded 67 bilateral international agreements within the framework of bilateral cooperation. As for multilateral treaties, Ukraine is a party to most universal and regional international treaties concluded under the auspices of the UN and the Council of Europe. They regulate the issues of asset seizure, confiscation and recovery. These include the United Nations Convention against Corruption, the Criminal and Civil Conventions on Corruption, the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, among others. All multilateral treaties, bilateral agreements and memorandums of understanding are available on the websites of the responsible government agencies (Ministry of Justice, the PGO, etc.) and on the official website of the Ukrainian Parliament.
Although the number of these agreements is quite high, most of them were concluded more than 10 years ago. Given the development of legislation and the creation of new bodies in Ukraine, in particular the ARMA, there is a need to update these agreements in terms of asset recovery. Despite the likely long duration of these processes, the new treaties on international legal assistance will allow further development of cooperation between states, including in the field of asset recovery.
Cooperation between Ukraine and foreign countries is realized directly through bilateral treaties signed by Ukraine in the field of international legal cooperation and in Memoranda of Understanding with foreign FIUs. For example, the Treaty between Ukraine and the Republic of Kazakhstan on Legal Assistance in Criminal Matters states that without prejudice to their own investigations or proceedings, the competent authorities of either Party may, without prior request, transmit to the competent authorities of the other Party information obtained during the investigation if such information will help the other Party initiate or complete the investigation or proceedings or if such information may serve as a basis for a request by the other Party. However, in practice, such cooperation is not often carried out.
According to ARMA officials and experts interviewed, a clear list of information/evidence to be found in the criminal proceedings. If information is found that is not relevant to criminal proceedings, it is not passed on, as there is no clear mechanism for transferring such information, since ARMA is not designated by law as a body authorized for special cooperation. The solution to this situation is to update international treaties on legal assistance and define effective mechanisms of cooperation at the level of national legislation. Information is exchanged in a secured manner, and for this purpose, the parties mostly use the Egmont secure network (ESW).
In order to identify and trace the assets of persons subject to criminal proceedings for money laundering, fraud, and tax evasion, in 2021, ARMA officers sent 82 requests to competent foreign institutions, and processed 96 requests from competent foreign authorities to identify and trace assets. In 2022, 520 requests were sent to competent foreign institutions, and 41 requests from the competent authorities of foreign countries were processed for asset tracing and identification. The intensification in this area is related to the search for assets belonging to the aggressor country's accomplices.
The ARMA has also officially finalized the opening ofthe Unified State Register of Assets Seized in Criminal Proceedings. The register consists of an open part, accessible to every interested person, and a classified part, intended for law enforcement. The database contains more than 150,000 records, of which about 49,000 relate to assets transferred to ARMA for the enforcement of court decisions that have entered into force, including special confiscation (432 records), although there has been only one such record in the last three years. As of October 2023, the register does not contain any records of seizure or confiscation of assets in Ukraine by foreign competent authorities or civil forfeiture. According to ARMA officials, the data is still being updated, and some information is not yet reflected for technical reasons. We hope that all the data will be updated as soon as possible.
In general, by the end of 2022, ARMA had established cooperation with 88 countries (Germany, Italy, France, Israel, the United States, the United Kingdom, etc.) and universal international organizations (CARIN, Interpol, StAR, Europol, the Platform of Asset Recovery Offices of EU Member States, ARIN-WA, etc.), participated in 1083 investigations, provided information on the assets of non-residents and citizens in Ukraine upon 221 international requests. In 2022, ARMA took part in 558 investigations, including 349 investigations within the Task Force.
Although the number of these agreements is quite high, most of them were concluded more than 10 years ago. Given the development of legislation and the creation of new bodies in Ukraine, in particular the ARMA, there is a need to update these agreements in terms of asset recovery. Despite the likely long duration of these processes, the new treaties on international legal assistance will allow further development of cooperation between states, including in the field of asset recovery.
Cooperation between Ukraine and foreign countries is realized directly through bilateral treaties signed by Ukraine in the field of international legal cooperation and in Memoranda of Understanding with foreign FIUs. For example, the Treaty between Ukraine and the Republic of Kazakhstan on Legal Assistance in Criminal Matters states that without prejudice to their own investigations or proceedings, the competent authorities of either Party may, without prior request, transmit to the competent authorities of the other Party information obtained during the investigation if such information will help the other Party initiate or complete the investigation or proceedings or if such information may serve as a basis for a request by the other Party. However, in practice, such cooperation is not often carried out.
According to ARMA officials and experts interviewed, a clear list of information/evidence to be found in the criminal proceedings. If information is found that is not relevant to criminal proceedings, it is not passed on, as there is no clear mechanism for transferring such information, since ARMA is not designated by law as a body authorized for special cooperation. The solution to this situation is to update international treaties on legal assistance and define effective mechanisms of cooperation at the level of national legislation. Information is exchanged in a secured manner, and for this purpose, the parties mostly use the Egmont secure network (ESW).
In order to identify and trace the assets of persons subject to criminal proceedings for money laundering, fraud, and tax evasion, in 2021, ARMA officers sent 82 requests to competent foreign institutions, and processed 96 requests from competent foreign authorities to identify and trace assets. In 2022, 520 requests were sent to competent foreign institutions, and 41 requests from the competent authorities of foreign countries were processed for asset tracing and identification. The intensification in this area is related to the search for assets belonging to the aggressor country's accomplices.
The ARMA has also officially finalized the opening ofthe Unified State Register of Assets Seized in Criminal Proceedings. The register consists of an open part, accessible to every interested person, and a classified part, intended for law enforcement. The database contains more than 150,000 records, of which about 49,000 relate to assets transferred to ARMA for the enforcement of court decisions that have entered into force, including special confiscation (432 records), although there has been only one such record in the last three years. As of October 2023, the register does not contain any records of seizure or confiscation of assets in Ukraine by foreign competent authorities or civil forfeiture. According to ARMA officials, the data is still being updated, and some information is not yet reflected for technical reasons. We hope that all the data will be updated as soon as possible.
In general, by the end of 2022, ARMA had established cooperation with 88 countries (Germany, Italy, France, Israel, the United States, the United Kingdom, etc.) and universal international organizations (CARIN, Interpol, StAR, Europol, the Platform of Asset Recovery Offices of EU Member States, ARIN-WA, etc.), participated in 1083 investigations, provided information on the assets of non-residents and citizens in Ukraine upon 221 international requests. In 2022, ARMA took part in 558 investigations, including 349 investigations within the Task Force.
Practices
The use of secure communication channels, in particular the Egmont network, guarantees the security of the exchange of classified information between countries.
ARMA has established cooperation with foreign jurisdictions and international organizations in the field of asset recovery.
Most mutual legal assistance treaties need to be updated in accordance with new challenges in the field of asset recovery.
State evaluation will be published soon.
In short
State of implementation
Legal framework after State evaluation.
Implementation in practice after State evaluation.
Practices
Example of positive practice
Example of positive practice
Example of positive practice
Example of negative practice
Example of negative practice
Example of negative practice
Actual research and materials
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