The Caribbean Financial Action Task Force (CFATF) has published the fourth article in its asset recovery series, explaining the confiscation powers required under Financial Action Task Force (FATF) standards. Following earlier articles on identifying, tracing and securing assets, it addresses the permanent deprivation of criminal property and property of corresponding value. Countries need a comprehensive range of mechanisms, including confiscation following conviction, extended confiscation and confiscation without conviction. The standards establish no hierarchy or preference among them.
Confiscation following conviction can target specific property linked to crime or recover an equivalent value, potentially from legitimately acquired assets where domestic law permits. Extended confiscation reaches property beyond the offense of conviction where the court is satisfied that it derives from criminal conduct, subject to fundamental principles of domestic law. Confiscation without conviction is also a required component of national frameworks, subject to those principles, and must involve judicial procedures. It can support recovery where prosecution is impossible or impractical, but is not limited to those circumstances. Implementation should protect defendants and bona fide third parties through clear procedures, opportunities to challenge evidence and proportionate application.
The article also distinguishes required considerations from optional tools. Countries must consider measures requiring offenders to demonstrate the lawful origin of property liable to confiscation, but the standards do not specifically mandate unexplained wealth orders. Tax recoveries can complement asset recovery but should not automatically be classified as confiscation. The next article will examine asset management and disposal.