AG/RES. 2199 (XXXVI-O/06) Amendments To The Model Regulations Of The Inter-American Drug Abuse Control Commission (CICAD) concerning Laundering Offenses Connected to Illicit Drug Trafficking and other Serious Offenses
General Assembly of the Organization of American States
Santo Domingo, Dominican Republic
Adopted at the fourth plenary session, held on June 6, 2006
THE GENERAL ASSEMBLY,HAVING SEEN the final reports of the meetings of the Group of Experts to Control Money Laundering of the Inter-American Drug Abuse Control Commission (CICAD), held in Washington, D.C., from July 13 to 15, 2004, and in Bogot�, Colombia, from November 14 to 18, 2005, which contained proposals for amending the Model Regulations concerning Laundering Offenses Connected to Illicit Drug Trafficking and Other Serious Offenses that were approved by CICAD at its thirty-sixth and thirty-eighth regular sessions, held in Washington, D.C., in December 2004 (CICAD/doc.1365/04) and December 2005 (CICAD/doc.1482/05), respectively; and
That the CICAD Groups of Experts are open to all member states and provide an opportunity to share experiences, present initiatives, and promote cooperation;
That the aforementioned CICAD Model Regulations are an important instrument for developing a coordinated response to illicit drug trafficking and related offenses;
That the CICAD Model Regulations depend on the contributions of the experts in the member states in order to remain dynamic, timely, and relevant; and
That CICAD has approved the proposals for amending the aforementioned Model Regulations,
1. To take note with satisfaction of the final reports of the meetings of the Group of Experts to Control Money Laundering of the Inter-American Drug Abuse Control Commission (CICAD), which were held in Washington, D.C., from July 13 to 15, 2004, and in Bogot�, Colombia, from November 14 to 18, 2005.
2. To adopt the amendments to the Model Regulations concerning Laundering Offenses Connected to Illicit Drug Trafficking and Other Serious Offenses that are set forth in the Appendix to the present resolution and that were approved by CICAD at its thirty-sixth and thirty-eighth regular sessions, held in Washington, D.C., in December 2004 (CICAD/doc.1365/04) and December 2005 (CICAD/doc.1482/05), respectively; and to recommend to the member states that they adopt them in due course, in accordance with their respective domestic legislation.
3. To urge member states to provide firm political support to the CICAD Model Regulations concerning Laundering Offenses Connected to Illicit Drug Trafficking and Other Serious Offenses and to lend the institutional support needed for appropriate implementation thereof in accordance with their domestic laws.
APPENDIX: Amendments To The Model Regulations Of The Inter-American Drug Abuse Control Commission Concerning Laundering Offenses Connected To Illicit Drug Trafficking And Other Serious OffensesAccording to the Final Report of the Meeting of the CICAD Group of Experts to Control Money Laundering, held in Washington, D.C., from July 13 to 15, 2004, which was approved by the Commission at its thirty-sixth regular session, held in Washington, D.C., from December 7 to 9, 2004 (CICAD/doc.1365/04), it was agreed to amend the following articles:
Article 3bis SPECIAL INVESTIGATIVE TECHNIQUES
In order to conduct an effective investigation against money laundering and serious criminal activities, as well as for purposes of forfeiture, specialized investigative techniques, such as wire tapping, undercover agents, informants, controlled delivery, and any other technique established in accordance with national law, should be developed and utilized in application of relevant international conventions.
Amendment to Article 2
Article 2 LAUNDERING OFFENSES
6. The offenses referred to in this article shall be defined, investigated, tried and sentenced by a court or competent authority as autonomous offenses distinct from any other offenses. It shall not be necessary to establish that a criminal process with respect to a possible serious criminal has occurred.
7. A person who commits a laundering offense and a related serious criminal activity can be convicted for the commission of both offenses.
According to the Final Report of the Meeting of the CICAD Group of Experts to Control Money Laundering, held in Bogot�, Colombia, from November 14 to 18, 2005, which was approved by the Commission at its thirty-eighth regular session, held in Washington D.C., from December 5 to 9, 2005 (CICAD/doc.1482/05), it was agreed to amend the following articles:
Article 4 ter ADMINISTRATION OF SEIZED ASSETS
1. A specialized administrative authority shall be designated with the responsibility for administration, inventory and reasonable preservation of the economic value of assets that are the subject of precautionary measures as set forth in Article 4.
2. Assets that have been made subject to precautionary measures shall be immediately placed at the disposal of and under the responsibility of the specialized administrative authority.
3. In order to comply with its obligation reasonably to preserve the economic value of assets subject to precautionary measures, as well as their revenue, yields or other benefits, and in exercise of its administrative powers, the specialized administrative authority may execute any agreements or contracts that it considers necessary for this purpose in accordance with the law.
4. The specialized administrative authority may order the liquidation of assets that are perishable or susceptible to near-term deterioration; assets whose maintenance, or administration may be excessively onerous; and assets whose maintenance would cause a significant diminution in their value.
5. In the event of the liquidation of seized assets, the proceeds from the liquidation shall be deposited and maintained in a special fund that guarantees the reasonable preservation of its economic value, until such time as a final judicial decision is issued. Income, yields or other benefits that are derived from the deposited value, shall accompany the legally determined destination for the assets.
6. Seized assets that are under the administration of the specialized administrative authority shall not be used.
In the exception, when advance liquidation is not possible or would be detrimental to the interests of the State, such assets may be placed into provisional use. Such use shall be regulated by a legal framework establishing:
a. the categories of seized assets that may be destined for provisional use under the responsibility of the State;
b. the time limits for the provisional use;
c. the institutions that may request provisional use from the specialized administrative authority;
d. the specific purposes or ends for which such use shall be permitted;
e. the appropriate control mechanisms for compliance with such purposes; and
f. the protection of the rights of the accused or of affected third parties.
In these cases, the specialized administrative authority shall set forth the responsibilities of the entity receiving the assets, with respect to their use, maintenance and the reasonable preservation of their economic value.
The national legal system also may determine not to establish any exception permitting provisional use of seized assets.
ARTICLE 5: FORFEITURE OF PROPERTY, PROCEEDS, OR INSTRUMENTALITIES
1. When a person is convicted of a money laundering offense, the financing of terrorism, or an offense included in the definition of serious criminal activity, the court shall order that the property, proceeds or instrumentalities connected to such an offense be forfeited and disposed of in accordance with the law.
2. When the objective circumstances of the case permit the competent authority to reasonably infer the illicit origin or destination of assets, it shall also order in the sentence of conviction the forfeiture of such assets, unless the convicted person has demonstrated their legal origin.
Objective circumstances of the case shall include, among others, those circumstances relating to the time or manner of acquisition, personal characteristics, economic characteristics, the convicted person's ordinary sphere of activities, or any other circumstances deemed relevant.
3. When, as a result of any act or omission of the person convicted, any of the property, proceeds or instrumentalities described in this article cannot be forfeited, the court shall order the forfeiture of any other property of the person convicted, for an equivalent value, or shall order the person convicted to pay a fine of such value.
Article 20 BIS COMPLIANCE WITH FOREIGN JUDGMENTS
1. Concerning international cooperation in cases of money laundering, the financing of terrorism, or serious criminal activities based upon treaties, agreements or in accordance with law, the court or competent authority may order measures permissible in accordance with Articles 4, 4 ter or 5, in order to:
a. Enforce the precautionary measures ordered by a court or competent authority of another country with regard to property that may be subject to forfeiture;
b. Enforce a final order of forfeiture issued by a foreign court or competent authority;
c. Provided its national legal system so permits, enforce any other equivalent measure ordered by a competent foreign authority that results in the suspension of the power to dispose of assets or loss of the right of ownership of assets.
2. The court or competent authority shall enforce the foreign order or measure in accordance with paragraph 1, unless the court or competent authority specifically finds that:
a. The order or measure originates from a court or competent authority that did not have jurisdiction or competence; or
b. The order or measure infringes on fundamental or constitutional rights.