THE NEED TO ACTIVATE INTERNATIONAL COOPERATION IN CONFISCATING CORRUPT ASSETS

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ZEBIRI MARIA

Abstract

Corruption is considered to be one of the most serious threats to the interests of individuals and the common interests of states. Therefore, most countries have focused on combating this phenomenon with all available means by developing policies and strategies aimed at unifying global efforts within a framework of international cooperation relations that seek to activate mechanisms to combat corruption, particularly with regard to the recovery of proceeds of corruption crimes through confiscation and mutual legal assistance. In this context, the United Nations Convention against Corruption serves as a legislative strategy because of its serious mechanisms based on international cooperation, especially in tracing the proceeds of corruption and working to return them to the requesting States. In order to ensure the achievement of this objective, international documents have urged parties to recognise the enforceability of foreign criminal judgments on the confiscation of criminal proceeds

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References

Nabil Malkia, "International Cooperation in the Recovery of Assets Derived from Administrative Corruption Crimes," Journal of the Researcher, Legal and Political Studies, Issue 3, September 2016, p. 103.

- Sharif Sid Qamal, "Organized Crime in Comparative Law," Dar Al-Nahda Al-Arabiya, First Edition, Cairo, Egypt, 2001, p. 284.

- Ali Fadl Hassan, "The Theory of Confiscation in Comparative Criminal Law," Dar Al-Nahda Al-Arabiya, Cairo, Egypt, 1997, p. 67.

- Mohammed Moutlaq Asaf, "Confiscations and Financial Penalties: A Comparative Study between Sharia and National Laws," Al-Waraq Publishing and Distribution Foundation, First Edition, Jordan, 2000, p. 20.

- Dalila Mbareki, "Money Laundering," Doctoral Thesis, Haj Lakhdar University, Batna, 2008, p. 218.

- Amjad Qatifan Al-Khreisha, "The Crime of Money Laundering: A Comparative Study," Dar Al-Thaqafa, First Edition, Beirut, Lebanon, 2006, p. 66.

- Mustafa Taher, "Legislative Responses to the Phenomenon of Money Laundering Derived from Drug Crimes," Comparative Study, Doctoral Thesis, Faculty of Law, University of Cairo, Egypt, 2001, p. 497.

- This agreement was adopted on December 20, 1988, and ratified by Presidential Decree No. 94/02 in 1994, published in the Official Gazette, Issue 12, dated March 6, 1994.

Moufid Naif Al-Dulaimi, "Money Laundering in Criminal Law (Comparative Study)," Dar Al-Thaqafa for Publishing and Distribution, First Edition, Cairo, Egypt, 2006, p. 235.

- Hussein Hayat, "International Cooperation Mechanisms for Recovering Proceeds from Corruption Crimes (In Light of the United Nations Convention Against Corruption)," Journal of Legal and Political Research and Studies, Issue 11, p. 65.

- Suleiman Abdel Moneim, "A Study on the Compatibility of Arab Legislation with the Provisions of the United Nations Convention Against Corruption," Research published on the Internet, United Nations site: http://www.undp-pogar.org/arabic, p. 83.

- Medhat Al-Dabsi, "Subsidiary and Complementary Penalties in Criminal Legislation," Dar Al-Jamia Al-Jadida, p. 94.

- Hussein Hayat, "Previous Reference", p. 65.

- Ahssen Bouski'a, "A Brief in General Criminal Law", Dar Houma for Publishing and Distribution, third edition, Algeria, 2006, p. 315.

- Suleiman Abdel Moneim, "Previous Reference", p. 84.

- As stated in the fourth paragraph of Article 31 of the Convention.

- This image is derived from what is stated in paragraph five of article 31 of the treaty.

- This provision is derived from what is stated in paragraph six of Article 31 of the Treaty.

- It corresponds to Article 51 of Law 06/01 on the Prevention of and Fight against Corruption.

- Suleiman Abdel Moneim, "Previous reference", p. 86.

- Article (55), paragraph (2) states: "Upon receiving a request from another State Party having jurisdiction over an act criminalised under this Convention, the receiving State Party shall take measures to identify, trace and freeze or seize the proceeds of crime or the property, equipment or other instrument referred to in paragraph 1 of Article 31 of this Convention for the purpose of eventual confiscation by an order issued either by the requesting State Party or by the receiving State Party in accordance with a request made pursuant to paragraph 1 of this article."

- Paragraph (1) of Article (55) states the following: "The State Party that receives a request from another State Party that has jurisdiction over an act criminalized under this agreement for the confiscation of criminal proceeds or properties, equipment, or other instruments referred to in paragraph 1 of Article 31 of this agreement existing in its territory shall, to the fullest extent possible within its domestic legal system, do the following:

(a) Refer the request to its competent authorities to obtain a confiscation order and to enforce that order if issued;

(b) Or refer to its competent authorities a confiscation order issued by a court in the territory of the requesting State Party in accordance with paragraph 1 of Article 31 and paragraph 1(a) of Article 54 of this agreement, for enforcement to the extent required, as long as it relates to criminal proceeds or properties, equipment, or other instruments referred to in paragraph 1 of Article 31 existing in the territory of the receiving State Party."

- Paragraph (3) of Article (55) states: "The provisions of Article 46 of this agreement apply to this article, subject to what is necessitated by the difference in circumstances. In addition to the information specified in paragraph 15 of Article 46, requests made pursuant to this article must include:

(a) In the case of a request related to paragraph 1(a) of this article, a description of the property to be confiscated, including the location of the property and its estimated value, where relevant, and a statement of the facts relied upon by the requesting State Party sufficient to enable the receiving State Party to issue the order under its domestic law;

(b) In the case of a request related to paragraph 1(b) of this article, a legally acceptable copy of the confiscation order on which the request is based, issued by the requesting State Party, a statement of the facts and information on the extent required for executing the order, a statement specifying the measures taken by the requesting State Party to provide appropriate notice to bona fide third parties and to ensure legal procedures are followed, and a statement that the confiscation order is final;

(c) In the case of a request related to paragraph 2 of this article, a statement of the facts relied upon by the requesting State Party, a description of the required procedures, and a legally acceptable copy of the order on which the request is based, where available."

- Ahmed Mandil, "International Cooperation in the Field of Criminal Recovery and Assets Obtained from Corruption Crimes," research presented at the conference "Legislative Reform: A Path to Good Governance and Anti-Corruption," held by the Al-Nabaa Foundation for Culture and Media and the University of Kufa/Faculty of Law, July 25-26, 2018, published on the site: [https://m.annabaa.org](https://m.annabaa.org).

- Amin Mustafa Mahmoud, "The General Theory of Administrative Criminal Law (The Phenomenon of Reducing Punishment)," Dar Al-Jamia Al-Jadida, unlisted edition, Alexandria, Egypt, 1992, p. 242.

- Article 5/3 of the United Nations Convention (Vienna Convention) of 1988 regarding the combat against illicit drug trafficking states a similar provision.

- Rasha Ali Kazem, "Corruption Crimes (A Study on the Compatibility of Arab Legislation with the Provisions of the United Nations Convention against Corruption)," Master's thesis submitted to the Faculty of Law, Al-Nahrain University, 2012, p. 305.

- Majid Ahmed Ali Mansar, "International Cooperation in Combating Terrorism Under the Rules of Public International Law," Doctoral thesis, Faculty of Law, Cairo University, p. 664.

- See Articles 582 to 589 of the Algerian Code of Criminal Procedure.

- Mahmoud Sharif Basyouni, "Money Laundering: International Responses and Regional and National Combating Efforts," Dar Al-Shorouk, 1st edition, Egypt, 2004, p. 40.

- See the European Convention on the Effect of Criminal Judgments, May 28, 1970, for discussion on the recognition of foreign judgments.

- Mahmoud Sharif Basyouni, "Previous Reference," p. 41.

- Ahmed Mandil, "International Cooperation in the Field of Criminal Recovery and Assets Obtained from Corruption Crimes," previous reference.

- Nabil Malekia, "Previous Reference," p. 103.

- Nabil Malekia, "Previous Reference," p. 104.

- Amjad Qatifan Al-Kharisha, "Previous Reference," p. 66.

- See Article 5 of the Vienna Convention, Article 13 of the Palermo Convention, and Articles 13 to 17 of the Strasbourg Convention.

- In the same context, paragraph (4) of Article (55) of the convention states: "The receiving State Party shall take decisions or actions as stipulated in paragraphs 1 and 2 of this article in accordance with the provisions of its domestic law and procedural rules or any bilateral or multilateral agreement it may be bound by towards the requesting State Party, subject to those provisions and rules or that agreement or arrangement."

- In this regard, paragraph (6) of Article (55) states: "If the State Party chooses to make the measures referred to in paragraphs 1 and 2 of this article conditional upon the existence of a treaty in this regard, that State Party shall consider this agreement as the necessary and sufficient treaty basis."

- Dalila Mbareki, "Money Laundering," Doctoral thesis, Haj Lakhdar University, Batna, 2008, p. 324.

- Ahmed Mandil, "International Cooperation in the Field of Criminal Recovery and Assets Obtained from Corruption Crimes," previous reference.

- Mustafa Taher, "Previous Reference," p. 5 and following pages.

- Article 13/2 of the Palermo Convention and in the same sense Articles 5/4 and 5/5 of the Vienna Convention and Article 13 of the Strasbourg Convention.

- Article 13/4 of the Palermo Convention and in the same sense Article 5/4(c) of the Vienna Convention.

- Samia Belgraff, "Recovery of Assets Obtained from Corruption Crimes (Challenges and Mechanisms)," Journal of Rights and Freedoms, Issue Two, Mohamed Khider University of Biskra, March 2016, p. 419.

- Article 5/4(a) of the Vienna Convention and Article 13/1 of the Palermo Convention.

- Mustafa Taher, "Previous Reference," p. 501.

- Article 5/5(a) of the Vienna Convention and Article 14/1 of the Palermo Convention.

- Article 5/5(b) of the Vienna Convention, Article 14/3 of the Palermo Convention, and Article 10 of the Strasbourg Convention.

- Article 14/2 of the Palermo Convention.

- Faiza Hawam, "Recovery of Criminal Proceeds in the United Nations Convention Against Corruption: Mechanisms and Obstacles," Journal of Legal and Political Sciences, Vol. 10, No. 2, September 2019, p. 1539.

- Paragraph (c/3) of Article (55) of the convention states: "According to Articles 46 and 55 of this convention and paragraphs 1 and 2 of this article, the receiving State Party... (c) in all other cases, shall give priority consideration to returning the confiscated property to the requesting State Party, or returning that property to its previous legitimate owners, or compensating the victims of the crime."

- This is also supported by Article 5/5(b) of the Vienna Convention.

- Mohamed Abdel Latif Abdel Aal, "The Crime of Money Laundering and Means of Combatting It in Egyptian Law," Dar Al-Nahda Al-Arabiya, p. 219, 220.

- Adel Yahya, "Means of International Cooperation in Enforcing Foreign Criminal Judgments," Dar Al-Nahda Al-Arabiya, 1st edition, Cairo, Egypt, 2004, p. 105-106.

- Among these conventions are: the Vienna Convention, the International Convention for the Suppression of the Financing of Terrorism, and the United Nations Convention Against Transnational Organized Crime. Faiza Hawam, "Previous Reference," p. 1540.

- Hussein Hayat, "Previous Reference," p. 70.