Asset Recovery in Latin America: Using Extincion de Dominio as a Complementary Tool

Extincion de dominio as a complementary tool in the fight against the finances of illicit drug trafficking Oscar Sol rzano, Director of the International Centre for Asset Recovery (ICAR) for Latin America Brussels, 8-10 October 2024

Illicit financial flows estimated at USD 350,000'000.00 per year. Illicit financial flows estimated at USD 350,000'000.00 per year. Recovery in the order of 1% (FATF / INTERPOL). Recovery in the order of 1% (FATF / INTERPOL). 1. Organised Crime and Drug Trafficking in Latin America: An Economic Approach Problem to the Latam Latam countries countries have recover recover assets assets from trafficking trafficking and have made made legislative from serious serious crimes and other other serious serious forms legislative efforts crimes such forms of of organised organised crime efforts over such as over the as corruption, corruption, illicit crime. . the last last 20 20 years years to to illicit drug drug A A central central theme conviction conviction- -based assets assets outside process process that (in (in rem) rem). . Latam Latam states states show regional regional system international international conventions adhere adhere to to and and implement organisations organisations such (GAFILAT) (GAFILAT). . theme has based confiscation), confiscation), which outside criminal criminal proceedings, that applies applies civil civil rules has been been non non- -conviction conviction- -based which allows allows for proceedings, through rules and and is is directed based confiscation confiscation (non for the the recovery recovery of of illicit through a a separate separate judicial directed against against the (non- - illicit judicial itself the asset asset itself show strong strong political system to to combat combat pernicious conventions: : UNCAC, implement the such as as the political will pernicious financial UNCAC, Palermo, the recommendations recommendations of of standard the FATF FATF and and its its regional will to to continue continue building financial crime Palermo, Vienna building an crime. . Ratification Ratification of of Vienna. . Most Most states standard- -setting regional organisation organisation an effective effective states setting SHARED CHALLENGES BETWEEN THE EU/CELAC REGIONS IN THE DRUGS AREA FACE-TO-FACE MEETING OF EU/CELAC DRUG AGENCIES IN BRUSSELS.

2. The response of the Latin American legislator. The different approaches. The UNODC Model Law on Non-Conviction-Based Forfeiture Development Development of of a a regional United United Nations Nations Office indicates indicates that that mechanism mechanism that that can regional Model Office on non non- -conviction conviction- -based can strengthen strengthen basic Model Law on Drugs Drugs and on Confiscation Confiscation by and Crime Crime (UNODC) based forfeiture forfeiture basic rule rule of of law law principles Law on by the the (UNODC) is is principles. . a a Existing Existing non GAFILAT GAFILAT member models models: : Confiscation Confiscation without proceedings proceedings; ; Confiscation Confiscation without Extinction Extinction of of ownership non- -conviction conviction- -based member countries countries can based confiscation confiscation mechanisms can be be grouped grouped into mechanisms in in into three three main main without conviction conviction within within or or linked linked to to criminal criminal without civil ownership. . civil or or administrative administrative conviction conviction; ; SHARED CHALLENGES BETWEEN THE EU/CELAC REGIONS IN THE DRUGS AREA FACE-TO-FACE MEETING OF EU/CELAC DRUG AGENCIES IN BRUSSELS.

Model Law on Extinction of Ownership Model Law on Extinction of Ownership A A Model Model Law alternative alternative originating originating from corruption, corruption, trafficking trafficking and others others. . Law in in 2011 way way from serious serious crimes money money and organised organised crime, 2011 introduced introduced an to to confiscate confiscate crimes such laundering, laundering, crime, among an assets assets such as drug drug among as UNODC UNODC is is currently version version of of the Ownership Ownership. . currently working the Model Model Law working on Law on on Extinction Extinction of of on a a new new

Immediate Immediate ratios ratios. . increase increase in in asset asset recovery recovery Implementation challenges. Implementation challenges. 3. Extinguishment of ownership: state of play Technical Technical and new new process process. . and logistical logistical complexity complexity of of a a Diversity Diversity human human rights in in applicable applicable standards standards and and rights. . SHARED CHALLENGES BETWEEN THE EU/CELAC REGIONS IN THE DRUGS AREA FACE-TO-FACE MEETING OF EU/CELAC DRUG AGENCIES IN BRUSSELS.

Model Law on Extinction of Ownership Model Law on Extinction of Ownership Extinction Extinction predominant predominant typology Latin Latin American American presented presented legislator's legislator's response economic economic criminality criminality. . of of typology in in 11 countries countries as as the the response to to the ownership ownership is is the the 18 is is 11 of of the the 18 and and American American the growing growing Latin Latin

Concept Concept: : According According to to Article Law Law on on Extinction Extinction of of Ownership ownership ownership is is "a "a legal legal consequence ownership ownership in in favour favour of of the linked linked by by origin origin or or destination being being any any consideration consideration or or compensation owner owner. . Article 1 1 of of the Ownership of of 2022 consequence that the State, State, of of assets destination to to illicit compensation for the new new version 2022, , the that implies implies the assets or or property illicit activities, activities, without for the version of of the the extinction extinction of of the transfer transfer of of property rights without there the benefit benefit of of the the Model Model rights there the The The purpose purpose of of the it it does does not not aim aspects aspects of of his the extinguishment extinguishment of of ownership aim to to punish punish the the offender his guilt guilt. . ownership is is not offender nor nor does not punitive punitive as does it it rule rule on as the on the

Assets subject to Extinction of Ownership Assets subject to Extinction of Ownership Objects Objects of of the Proceeds Proceeds of of crime Profits Profits or or gains Subrogated Subrogated assets the offence offence ( (objectum crime ( (producta producta scaeleris gains from from the the proceeds assets objectum scaeleris scaeleris) ), , proceeds of of crime scaeleris) ), , Proceeds Proceeds or or effects and and indirect) indirect) of of crime effects (direct crime (direct crime property property which facilitate facilitate the theory) theory) which has the commission commission of of an has served, served, will will serve serve or or otherwise an offence offence (facilitation otherwise (facilitation Instrumentalities Instrumentalities of of crime crime

Assets subject to Extinction of Ownership Assets subject to Extinction of Ownership introduces introduces the presumption presumption confiscation confiscation. . the concept concept of of illicit leading leading illicit enrichment enrichment as non non- -conviction conviction- -based as a a based Assets Assets enrichment enrichment representing representing illicit illicit to to non non- -conviction conviction based they they have have been been intermingled to to conceal conceal the the true based confiscation confiscation of of licit intermingled with true illicit illicit origin origin of of the licit assets assets when with illicit illicit assets assets in in order the latter latter. . when order Intermingled Intermingled contaminated contaminated assets or or assets when when the crime) crime) are attributable attributable to to the the proceeds proceeds (direct are not not available available for the perpetrator (direct or or indirect for a a reason reason that perpetrator. . indirect benefits that is is generally benefits of of generally Assets Assets equivalent equivalent value written written value off off for for

CONCLUSIONS International International recovery in in particular, particular, is is one 10 10 of of the the 18 indicator indicator of of the recovery of of illicit one of of the 18 countries countries have the rise rise of of asset illicit assets assets in in general, the major major challenges challenges reported have adopted adopted and asset forfeiture forfeiture laws general, and reported by and enforced enforced the laws in in GAFILAT GAFILAT countries and recovery recovery via by GAFILAT GAFILAT countries the asset asset forfeiture countries. . via non non- -conviction conviction based countries. . However, forfeiture action based forfeiture forfeiture However, the the fact action is, is, in in itself, fact that itself, an that an One One of of the based based forfeiture conviction conviction based training training of of justice the challenges challenges for forfeiture laws based forfeiture justice operators for GAFILAT GAFILAT countries laws is is to to make make sufficient forfeiture systems, systems, as operators from from the countries at at this sufficient resources as well well as as to to invest the different different institutions institutions involved this stage stage of of implementation implementation of of non resources available available to to implement invest sufficient sufficient resources involved in in the non- -conviction conviction effective non the continuous continuous system. . implement effective resources in in the the judicial judicial system non- - It It should should be seek seek to to generalise be noted noted that generalise judicial that the judicial cooperation cooperation in in non the new new FATF FATF standards, standards, through non- -conviction through the conviction based the amendment amendment of of Recommendation based forfeiture forfeiture cases cases. . Recommendation 38 38, , SHARED CHALLENGES BETWEEN THE EU/CELAC REGIONS IN THE DRUGS AREA FACE-TO-FACE MEETING OF EU/CELAC DRUG AGENCIES IN BRUSSELS.

CONCLUSIONS In In this forfeiture forfeiture models, this context, context, GAFILAT models, in in particular GAFILAT member particular through member countries through the countries give the promotion promotion of of the give priority priority to to the the Model the harmonisation harmonisation of of non Model Law Law on on Confiscation non- -conviction conviction based Confiscation of of Ownership Ownership. . based SHARED CHALLENGES BETWEEN THE EU/CELAC REGIONS IN THE DRUGS AREA FACE-TO-FACE MEETING OF EU/CELAC DRUG AGENCIES IN BRUSSELS.