JAPAN. Practical Guide for Assets Recovery. -How to return the assets concerned-

Similar documents
GUIDE TO MUTUAL LEGAL ASSISTANCE FROM EAST ASIA AND THE PACIFIC REGION BRUNEI DARUSSALAM

Mutual Legal Assistance in Thailand

TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE KINGDOM OF THAILAND RELATING TO EXTRADITION

Conference of the States Parties to the United Nations Convention against Corruption

The Legal Framework for Extradition, MLA and Recovery of Proceeds of Corruption

BOSNIA AND HERZEGOVINA

Upon entry into force, it will terminate and supersede the existing Extradition Treaty between the United States and Thailand.

PRACTICAL ISSUES IN ASSET RECOVERY

THE LAW ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS (Official Gazette of Montenegro, No. 04/08 dated ) I. GENERAL PROVISIONS

TREATY BETWEEN THE GOVERNMENT OF THE KINGDOM OF THAILAND AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA RELATING TO EXTRADITION

Romania International Extradition Treaty with the United States

Austria International Extradition Treaty with the United States. Message from the President of the United States

Asset Recovery in Ukraine. Practice Guide

Italy International Extradition Treaty with the United States

Conference of the States Parties to the United Nations Convention against Corruption

Kingdom of Saudi Arabia's Efforts for Recovery of Assets

Poland International Extradition Treaty with the United States MESSAGE FROM THE PRESIDENT OF THE UNITED STATES

1 of 100 DOCUMENTS. U.S. Treaties on LEXIS FRANCE EXTRADITION TREATY WITH FRANCE TREATY DOC U.S.T. LEXIS 53. April 23, 1996, Date-Signed

CAC/COSP/IRG/2011/CRP.4

MESSAGE FROM THE PRESIDENT OF THE UNITED STATES

PROCEEDS OF CRIME - THE CANADIAN EXPERIENCE

The information contained in this table should be updated on a yearly basis.

LAW FOR PREVENTION OF TRANSFER OF CRIMINAL PROCEEDS (Law No. 22 of 31 March 2007) [Provisional translation]

Bulgaria International Extradition Treaty with the United States

Conference on New Strategic Directions in Controlling Corruption: The Recovery of Stolen Assets Dusit Thani Hotel Bangkok, Thailand March 2008

The information contained in this table should be updated on a yearly basis. Procedure for search (asset-tracing) and seizure

Korea-Philippines Extradition Treaty

EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF LATVIA, SIGNED ON DECEMBER 7, 2005, AT RIGA.

The provisions in this Treaty follow generally the form and content of extradition treaties recently concluded by the United States.

The information contained in this table should be updated on a yearly basis.

Sri Lanka International Extradition Treaty with the United States MESSAGE FROM THE PRESIDENT OF THE UNITED STATES

INTERNATIONAL COOPERATION: MUTUAL LEGAL ASSISTANCE AND EXTRADITION

Act on Nippon Telegraph and Telephone Corporation, etc.

EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE HASHEMITE KINGDOM OF JORDAN

International treaty examination of the New Zealand People's Republic of China Treaty on Mutual Legal Assistance in Criminal Matters

TREATY SERIES 2011 Nº 5

Ministry of Justice of the Russian Federation Prosecutor General s Office of the Russian Federation

The provisions in this Treaty follow generally the form and content of extradition treaties recently concluded by the United States.

Korea, Republic of (South Korea) International Extradition Treaty with the United States

The Legal Framework for Extradition, MLA and Recovery of Proceeds of Corruption

Overview of the Act on the Protection of Specially Designated Secrets (SDS)

The provisions in this Treaty follow generally the form and content of extradition treaties recently concluded by the United States.

Conference of the States Parties to the United Nations Convention against Corruption

The information contained in this table should be updated on a yearly basis. tel.: ; fax:

I transmit also, for the information of the Senate, the Report of the Department of State with respect to the Treaty.

MESSAGE FROM THE PRESIDENT OF THE UNITED STATES

Phase 2 follow up: Additional written report by Russia

EUROPEAN CONVENTION ON EXTRADITION. Paris, 13.XII.1957

REQUESTS FOR MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS. Guidance for Authorities Outside of Kenya

Extradition Law. Approved on May 4, 1960

Financial Intelligence Unit India (FIU-IND) Functions of FIU-IND Collection of Information: Analysis of Information: Sharing of Information:

Barbados International Extradition Treaty with the United States

MESSAGE FROM THE PRESIDENT OF THE UNITED STATES

Conference of the States Parties to the United Nations Convention against Corruption

S/2002/1045. Security Council. United Nations

NATIONAL STRATEGY FOR COMBATING MONEY LAUNDERING, TERRORISM FINANCING AND PROLIFERATION FINANCING

UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME

SPECIFIC PROBLEMS AND SOLUTIONS THAT ARISE IN CASES INVOLVING INTERNATIONAL MUTUAL LEGAL ASSISTANCE OR EXTRADITION

Act No. 403/2004 Coll. Article I PART ONE BASIC PROVISIONS

The Legal Framework for Extradition, MLA and Recovery of Proceeds of Corruption

Model Extradition Treaty

Conference of the States Parties to the United Nations Convention against Corruption

International Co-operation against Tax Crimes and Other Financial Crimes

Conference of the States Parties to the United Nations Convention against Corruption

St. Lucia International Extradition Treaty with the United States

Federal Act on the Establishment and Organization of the Federal Bureau of Anti-Corruption

Extradition Treaty between the United States of America and the Argentine Republic

Conference of the Parties to the United Nations Convention against Transnational Organized Crime

Towards a Multilateral Treaty for Mutual Legal Assistance and Extradition for Domestic Prosecution of the Most Serious International Crimes

P.R. China-Korea Extradition Treaty

ORGANIZATION OF EASTERN CARIBBEAN STATES EXTRADITION TREATIES WITH ORGANIZATION OF EASTERN CARIBBEAN STATES

LAW CONCERNING SPECIAL PROVISIONS FOR THE NARCOTICS AND PSYCHOTROPICS CONTROL LAW, ETC. AND OTHER MATTERS FOR THE PREVENTION OF ACTIVITIES

REPORT ON NATIONAL ASSESSMENT OF MONEY LAUNDERING AND TERRORISM FINANCING RISK IN THE REPUBLIC OF ARMENIA

TRANSMITTING EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE REPUBLIC OF PERU, SIGNED AT LIMA ON JULY 26, 2001

BILATERAL EXTRADITION TREATIES JORDAN EXTRADITION TREATY WITH JORDAN TREATY DOC U.S.T. LEXIS 215. March 28, 1995, Date-Signed

OFFICIAL GAZETTE OF THE REPUBLIC OF KOSOVA / No. 33 / 2 SEPTEMBER 2013, PRISTINA

Guide to Asset Recovery in the Hong Kong Special Administrative Region

Japan s Comprehensive Strategy Against Human Trafficking

The provisions in this Treaty follow generally the form and content of extradition treaties recently concluded by the United States.

SOUTHERN AFRICAN DEVELOPMENT COMMUNITY PROTOCOL ON EXTRADITION TABLE OF CONTENTS:

International Cooperation in Criminal Matters. Mutual Legal Assistance

June 13, 2018, New Delhi, INDIA

Indonesia-Korea MLA Treaty

BILATERAL EXTRADITION TREATIES INDIA EXTRADITION TREATY WITH INDIA TREATY DOC U.S.T. LEXIS 97. June 25, 1997, Date-Signed

Country Review Report of the Cook Islands

REQUESTING INTERNATIONAL COOPERATION IN CIVIL AND ADMINISTRATIVE PROCEEDINGS RELATING TO CORRUPTION

Republic of Bulgaria national procedures for transfer of sentenced persons Updated 28/04/2015

FOLLOW UP REPORT: CROATIA 1

Foundation Agreement Annex IV, Attachment 3. Cooperation Agreement between the Federal Government and the Constituent States on Police Matters

S/2003/633* Security Council. United Nations

The information contained in this table should be updated on a yearly basis.

CAC/COSP/IRG/2015/CRP.12 *

POLA 2004 Country Report Japan Federation of Bar Associations. Practicing Attorney System in Japan

EUROPEAN COMMITTEE ON CRIME PROBLEMS (CDPC) COMMITTEE OF EXPERTS ON THE OPERATION OF EUROPEAN CONVENTIONS ON CO-OPERATION IN CRIMINAL MATTERS (PC-OC)

DECISION OF THE COMMISSION

Australia-Korea Extradition Treaty

Commonwealth Schemes for International Cooperation in Criminal Matters. Office of Civil and Criminal Justice Reform

INTERPOL s Rules on the Processing of Data

The information contained in this table should be updated on a yearly basis. The Ministry of Justice. Sölvhólsgata 7, 101 Reykjavík

Role of Indonesian Prosecutor in combating corruption

Transcription:

JAPAN Practical Guide for Assets Recovery -How to return the assets concerned- September 2012 1/

Overview Japan may assist other countries which request Japan to return assets (proceeds of crime derived from certain offences) to its prior legitimate owners on a case-by-case basis. This guide provides basic information on Japan s assistance in the recovery of assets, basically to other countries which have not concluded mutual legal assistance treaty/agreement (hereinafter MLAT/MLAA) with Japan. Remarks: Japan is not a member of the United Nations Convention against Corruption though Japan has signed the Convention in 2003. However, Japan may provide asset recovery assistance to other countries, in accordance with international comity and its domestic law. All countries which Japan has diplomatic relations may send a request to Japan for asset recovery. Main Agencies Supporting Asset Recovery Cases International Investigative Operations Division, National Police Agency International Affairs Division, Criminal Affairs Bureau, Ministry of Justice International Safety and Security Cooperation Division, Foreign Policy Bureau, Ministry of Foreign Affairs 1 JAPAN

Steps for returning the assets concerned 1 The First Step: Identifying assets concerned <via INTERPOL> After receiving a request from the International Criminal Police Organization (ICPO-INTERPOL), the Japanese Police can make requests to banks for providing information on the targeted bank accounts. (Article 18 of the Law for International Assistance in Investigation and Other Related Matters, hereinafter referred to as LIAI ). =procedure= Please follow the procedure as provided by the ICPO. The requests via ICPO channel are received by International Investigative Operations Division, National Police Agency, which serves as the Japanese National Central Bureau (NCB) i.e. the INTERPOL Tokyo. The INTERPOL Tokyo, upon receiving the requests, directs Prefectural Police to make requests to the banks concerned for providing information on their bank accounts. <via FIU cooperation> The Japan Financial Intelligence Center (hereinafter JAFIC), the Japanese FIU, collects, arranges and analyses Suspicious Transaction Reports (STRs) and disseminates them to investigative authorities as well as foreign FIUs. By using FIUs network, a foreign jurisdiction may ask JAFIC to provide STRs which may relate to assets concerned. Article 12 of the Act on Prevention of Transfer of Criminal Proceeds stipulates that JAFIC may disseminate information on suspicious transactions to foreign FIUs on condition that there is an appropriate measure such as a framework for information exchange, so called Statement of Cooperation. The framework shall be set to ensure that the provided information will not be used for other purposes than for performing the duties of foreign agencies which conduct duties equivalent to those of the National Public Safety Commission of Japan, and that it will not be used for the investigation into criminal cases (limited to cases where the fact of a crime has already been specified) or inquiries in foreign countries without Japan s prior consent. JAFIC has established such frameworks with the FIUs of more than 40 countries. If foreign FIU in your country has a wish to establish such framework with JAFIC, please contact either; Japan Financial Intelligence Center http://www.npa.go.jp/sosikihanzai/jafic/jaficenglishpage/jaficenglish.html or Japanese Embassies http://www.mofa.go.jp/region/index.html 2 JAPAN

<via Mutual Legal Assistance> Bank records can be sought through request for mutual legal assistance (hereinafter MLA) to Japan through diplomatic channel. Owner of real estate can also be identified through MLA without a warrant. 2 The Second Step: Securance of property Based on a MLA requests from other countries, after identifying assets concerned, Japan can provide assistance as follows; -Securance (freezing) of Asset -Confiscation of Asset To confiscate the assets by request, a final court order for confiscation in the requested country is needed. 3 The Third Step: Return of the assets concerned. Japan may transfer all or part of the confiscated asset to the requesting country (i.e. asset recovery) which asked for assistance in execution of their final court order for confiscation in accordance with its domestic law. Such request should be sent through diplomatic channel. 3 JAPAN

Outline of Japan s MLA requirements Here provides practical information on procedures for sending a request to Japan. (1) Introduction / Overview MLA in Japan is primarily governed by the LIAI. LIAI applies to all MLA proceedings and Japan may provide MLA if a requesting State provides an assurance of reciprocity even in the absence of a MLAT. In addition, MLA requests involving confiscation are also dealt with under the Law for Punishment of Organized Crimes, Control of Proceeds and Other Matters (socalled Anti-Organized Crime Law (AOCL) ). (2)General Procedure A request for assistance in the absence of a MLAT is received by the Minister for Foreign Affairs via diplomatic channels. (3) Requirements Under LIAI, an MLA request must meet the following requirements: Reciprocity - the requesting state must guarantee that it will honor requests of the same sort from Japan; The assistance is necessary for the investigation in the requesting State; The offense for which assistance is sought is not a political offense, and the request for assistance is not made with a view to investigating a political offense; Dual criminality is a requirement. The act constituting the offense for which assistance is requested would constitute a crime under the laws and regulations of Japan were it to be committed in Japan; With respect to a request for the examination of a witness or provision of articles of evidence, the requesting State clearly demonstrates in writing that the evidence is essential to the investigation; and The Minister of Justice deems it appropriate to honor the request. 4 JAPAN

Additional requirements; If a court of other country renders a final adjudication on a criminal case to confiscate assets located in Japan as proceeds of crime, this country can make a request of MLA to execute such confiscation order and the transfer of such assets which is subject to confiscation (asset recovery). The additional requirements for execution of foreign confiscation order based on a final adjudication are stipulated in AOCL which include the following; Under the laws and regulations of Japan, if the act constituting the offense for which assistance is requested were to be committed in Japan, (1) the said act would be subject to a penalty, and (2) the said property would be subject to confiscation/preservation; and There should be neither criminal case pending before a Japanese court nor final and binding judgment by a Japanese court that involves the offense for which assistance is requested. Upon execution of the request, public prosecutor will apply to court for an examination whether such request falls under a case for which assistance may be provided. If the court decides that the case is of which assistance may be provided, the foreign adjudication of confiscation will be deemed to be adjudication pronounced by a Japanese court in the context of MLA. If the Minister of Justice finds it appropriate to grant the transfer of whole or part of the executed assets to the requesting country, it may be granted. 5 JAPAN (4) Supplementary Explanation on Dual Criminality Requirement As mentioned above, dual criminality is one of the legal requirements for providing assistance. At the same time, Japan does not examine the requirement of dual criminality by superficially comparing the constituent elements of crimes of both countries. Rather, Japan seeks whether the facts constituting the offense for which mutual assistance is requested and other facts related thereto contain, as a whole, a constituent element of a crime prescribed in the Japanese laws, regardless of whether such offense is categorized in the same manner or denominated by the same terminology. In this way, Japan examines and applies the requirement of dual criminality as flexibly as possible. Thus, there are few cases in which Japan refuses to render mutual legal assistance on the grounds that dual criminality requirement is not met. Also note that assistance involving confiscation/preservation (executed in accordance with AOCL) requires concrete dual criminality. In other words, punishability under the applicable laws of Japan, which may be judged from such factors as self defense, legitimate conduct, insanity, and lapse of time, is to be taken into account in determining whether or not dual criminality requirement is met.

List of Abbreviations -AOCL: The Law for Punishment of Organized Crimes, Control of Proceeds and Other Matters (so-called Anti-Organized Crime Law ) -Criminal Proceeds Act: Act on Prevention of Transfer of Criminal Proceeds -JAFIC: The Japan Financial Intelligence Center -LIAI: The Law for International Assistance in Investigation and Other Related Matters Contact Information International Affairs Division, Criminal Affairs Bureau, Ministry of Justice (TEL:+81-3-3580-4111) International Safety and Security Cooperation Division, Foreign Policy Bureau, Ministry of Foreign Affairs (TEL:+81-3-5501-8000) 6 JAPAN