The following article discusses session three in the IR Global Virtual Series on 'Freezing Assets – The mechanics behind cross-border injunctions'
Turks & Caicos Islands – SW The criminal
authorities here in the Turks & Caicos Islands have far wider powers than a
natural person, or a party to civil litigation. Under our Confidential
Relations Ordinance and Part X of the Companies Ordinance, a police officer in
the course of an investigation of a criminal offence can obtain confidential
information that a party to litigation is unable to obtain without applying to
the court.
Moreover, in terms of the freezing of assets, the Proceeds
of Crime Ordinance will provide a number of options to prosecuting authorities.
This includes restraint orders in the course of the investigation of a criminal
offense and in civil recovery proceedings, prosecuting authorities have the
ability to apply for a property freezing order.
Police officers also have the ability to seize cash if they
have suspicions regarding where it has come from, regardless of whether or not
it is part of the recoverable money from illicit activity.
In terms of speed and cooperation, it very much depends. I
have mixed experience with the Financial Crimes Unit here, in terms of their
willingness to act, however there is a three-year ongoing major prosecution,
which is worth highlighting. It involves allegedly corrupt politicians and
outside assistance from the United Kingdom. Restraint orders, property
preservation orders and production orders were being obtained in large numbers,
so we saw the process at its most powerful during the investigation of those
offences.
Spain – RC In 2015, the Spanish Criminal Code was
strengthened with regard to fraud deterrence, with a new regulation on the
felony of concealment of assets.
Before this came in, you committed concealment if you knew
you had a judgment condemning you to pay any sum of money, and then you hid or
concealed assets while not paying your creditors.
Now the test is whether you are reasonably aware that your
creditors are persecuting you in court and, in spite of this, you conceal
assets. This is a very big difference.
Criminal courts in Spain can seize assets, if they have a
clear perception that a fraud has been committed. These measures can be adopted
by criminal courts at any stage of the criminal procedure, but usually they are
only adopted once the court has gone through a previous investigation on the
concealment. It's very unusual for these kinds of measures to be granted
immediately when you file a complaint.
Germany – JS Prosecution of crimes regarding assets,
e.g. fraud or breach of trust, are mainly aimed at punitive measures, rather
than balancing the scales through enforcement via civil proceedings.
Banking secrecy may be disregarded in criminal procedures.
The right to refuse testimony only exists regarding professional secrets
according to the German Criminal Procedure Code, which does not include banking
secrecy. For this reason, bank employees and credit institutions do not have
the right to refuse testimony in criminal proceedings – in contrast to civil
proceedings – and are obliged to testify in front of the public prosecutor.
However, they do not have to obtain the desired knowledge
before testifying, as there is no obligation to inquire. Within the framework
of the witness examination, the owners, organs and employees of the credit
institutions are obliged pursuant to Sec. 161a StPO to appear in front of the
public prosecutor on summons and to give evidence on the matter as far as their
knowledge of it may allow. An exception to the rule exists when a bank employee
is accused of aiding and abetting a tax evasion committed by a customer. As an
accused they may refuse testimony. The public prosecutor may confiscate
business documents and data carriers of the credit institution.
Regarding monetary compensation, civil proceedings will be
faster. This is the case in particular with the judicial dunning procedure, if
the debtor does not object to the dunning notice or lodges an appeal against
the enforcement order.
On the other hand, criminal proceedings offer good opportunities
for recognition (see above).
If criminal proceedings are already pending, civil claims
may be asserted in the same proceedings within the framework of so-called
“Adhäsionsverfahren” for reasons of procedural economy.
Turkey – CEB The movable, immovable, rights and
receivables of a person can be confiscated under Turkish law, in the case of
strong suspicion based on concrete evidence that a crime has been committed, or
assets have been obtained as a result of a crime. These may be bank accounts as
well as vehicles, real estate, company shares and other things. The details are
regulated in the Criminal Procedure Code.
The crime element in question does not need to be in the
hands of the suspect or accused, but, if necessary, a report is often taken
from bodies such as the Banking Regulation and Supervision Agency, Capital
Markets Board or the Financial Crimes Investigation Board, in order to take
attachment decisions.
The attachment decision regarding the immovable assets, is
processed in the land registry, and the movables is annotated to the register
office and it is enforced. The decision to confiscate any account in the bank
or other financial institutions is usually enforced by immediately notifying
the bank or financial institution related to the means of technical
communication.
The decision to confiscate the shares of a company is
enforced by notifying the related company management and the registered trade
registry office with the technical communication tools immediately. Any
decisions are notified to the related company and the trade registry office.
Netherlands – JW If you have the possibility to file
a criminal complaint against an opponent, then this pressurises the opponent.
From a purely practical standpoint that may put some pressure on someone who is
not willing to act.
Another issue is that criminal prosecution must be really
criminal, so sometimes, when you want the police to investigate a matter, they
will say; well it is a civil matter. You can object to that in court and
usually you will win.
So, what is the advantage of such a criminal investigation?
Well, the police have more powers in terms of locating
assets. We have worked with the police in The Netherlands and the district
attorney's office, in order to try to obtain assets from criminals.
In big insurance cases, we were able to not only trace
assets but also to execute those assets on behalf of the clients. A positive
thing about a criminal proceeding, is that if a judgment is rendered in a
criminal proceeding, you can use that judgment as a means of proof in a civil
case.
It is possible for the criminal to arrange for contrary
evidence, but usually that evidence has also been taken into account in the
criminal proceeding, so it usually doesn't serve any purpose for the opponent
to bring it in.
The last issue pertaining to criminal law in The
Netherlands, is that also the police and district attorney are able to obtain
and seize assets by means of a criminal conservatory arrest.
Under these rules, assets will have to be given back to the
criminals, but it is possible to make a judgment that these assets will become
forfeited to the state. The police may also try to find other parties who have
claims against those criminals, and then you can arrange for a conservatory or
executionary arrest on those assets of the criminals in order to execute
judgment.
Ohio – CN US prosecutors and the FBI have most of the
same powers as other countries. One of the issues in the US, is that, ethically
as attorneys, we cannot threaten criminal prosecution as a way to gain
advantage in a civil matter. We have to be careful with that, as demonstrated
by the case of Michael Avanti, the attorney who's in big trouble for
threatening Nike.
It's an example of an attempt to collect gone bad and you
have to be careful in that arena.
So, the reality is similar to The Netherlands, in that you
have to get the FBI excited about a case, which can be difficult. We had an
example here, where I had a banker who was stealing from the bank. We had our
own civil case proceeding for several years, before the Federal prosecution
finally kicked in and resolved it. The timing of Federal prosecutions can be
slow, unless they get excited, like in the case of Michael Avanti.
The reality is that it can take years for them to prosecute
a case and finally bring a trial. They do have more powers, but it's difficult
to get them to act.
Austria – KO During ongoing criminal investigations,
the public prosecutor is entitled to apply various coercive measures necessary
for the clarification of the facts and prosecution of the suspected crime.
Above all, assets may be seized and preliminary injunctions may be issued.
Dominican Republic – PGT Freezing assets on an individual
basis, using a civil, commercial or labour code, is different than pursuing a
criminal matter.
In criminal cases, the prosecutor has very ample powers of
investigation, which means that they can investigate an agent for months
without the agent knowing about that investigation, while prosecutors locate
all the assets the agent has.
Usually the prosecutor will try to freeze assets if the
prosecutor believe that those assets are being used for a criminal action or
protect those assets for eventual dissipation during the procedure.
A prosecutor will have access to the assets and the
information of the agent and eventually will go to a special judge called an
instruction judge, who will evaluate the merits of the investigation and
usually grant what the prosecutor wants. Suddenly, you could find that all your
assets have been frozen because of this investigation that is taking place.
Usually they do that in secret to avoid the agent dispersing the assets.
As I mentioned earlier, the Dominican Republic has various
treaties of mutual judicial assistance on the criminal side with the countries
of the region. The Dominican Republic has agreed that requests from any of
those states should be considered, if they have any reason to believe that the
agent that is being prosecuted also has asset in the Dominican Republic. They
can request the penal authorities to freeze those assets and the Dominican
Republic is required to do so.
In the practice, what usually happens, is that those local
assets are being used by different parties than the agent, and those parties
are entitled to prove that they have nothing to do with the person or
individual that is being prosecuted in the foreign country. Usually, that's
something that has to be litigated before a judge to prove that you are the
owner.
The other thing worth mentioning, is that we have passed
very strict legislation on money laundering, which definitely has been
converted into a tool for pursuing any asset concealment. The authorities are
pressing a lot on this legislation for individuals.
Debtors are reminded not to divest their assets into treaty
companies or with friends and family, because the criminal authorities are able
to look into this, if they believe the purpose was to defraud the tax authorities.
This would basically constitute a money-laundering prosecution.
Cayman Islands – CB The additional powers available
in criminal cases in the Cayman Islands primarily relate to the speed and ease
by which investigators can seize evidence, the orders that they may make,
cooperation available from other jurisdictions and the ability to have the
proceeds of crime confiscated by the Court.
If investigators have already begun work in a foreign
jurisdiction, that investigation can make a request to the Office of the Cayman
Islands Director of Public Prosecutions (DPP) under the Criminal Justice
(International Cooperation) Law. The DPP has the power to investigate and
prosecute crime, trace criminal assets, seek orders of restraint and
confiscation of property (as well as civil recovery powers). In appropriate
cases there may be a very rapid response on the part of the Cayman Islands
Government.
If there is a connection with the USA, the Mutual Legal
Assistance (United States of America) Law applies. It covers all areas of civil
and criminal law except tax, including taking testimony or statements,
providing documents, records and articles of evidence, serving documents,
locating persons, transferring persons in custody for testimony, executing
requests for searches and seizures, immobilising criminally obtained assets,
assistance in proceedings related to forfeiture, restitution and collection of
fines and any other steps deemed appropriate by both countries.
Under Section 34 of the Monetary Authority Law (2018
Revision), the Cayman Islands Monetary Authority (CIMA) may, at any time by
notice in writing, require a regulated or connected entity or relevant person
to provide specified evidence. CIMA may also exercise similar powers following
a request by an overseas regulatory authority and direct such persons to
produce information.
A criminal court in the Cayman Islands will decide at
sentencing whether to make a confiscation order based on evidence about the defendant’s
‘criminal lifestyle’. If granted, enforcement agencies will seize the
defendant’s assets, including those held by third parties such as banks and
funds. Various orders may be made by Cayman Islands Government agencies.
Contributors
Roger Canals (RC) Arco Abogados – Spain www.irglobal.com/advisor/roger-canals
Dr. Klaus Oblin (KO) OBLIN Rechtsanwälte GmbH – Austria www.irglobal.com/advisor/dr-klaus-oblin
John Wolfs (JW) Wolfs Advocaten – The Netherlands www.irglobal.com/advisor/john-wolfs
Frankie Tierney (FT) Herrington Carmichael – England www.herrington-carmichael.com/our-people/frankie-tierney
Chris Niekamp (CN) Niekamp Weisensell Mutersbaugh &
Mastrantonio, LLP – U.S – Ohio www.irglobal.com/advisor/chris-niekamp
Stephen Wilson, QC (SW) Graham Thompson – Turks & Caicos
Islands www.irglobal.com/advisor/stephen-wilson-qc
Pablo González Tapia (PGT) GONZÁLEZ TAPIA ABOGADOS –
Dominican Republic www.irglobal.com/advisor/pablo-gonzalez-tapia
Dr. Jana Schott (JS) AQUAN Rechtsanwälte, Germany www.irglobal.com/advisor/dr-jana-schott
Cherry Bridges (CB) Ritch & Conolly – Cayman Islands www.irglobal.com/advisor/cherry-bridges
Cemil Baha (CEB) ÖZALP – Turkey www.irglobal.com/advisor/cemil-baha-ozalp