FATF’s influence on judges and prosecutors | President’s Paper

FATF is an undemocratic organisation, lacking independent supervision and lacking independent scientific counterbalance.
Therefore it is worrying that this organisation is trying to influence judges and prosecutors in relation to their role in convicting people based on anti-moneylaundering and counter terrorist financing legislation.

FATF President’s Paper
Recently FATF published a president’s paper on the meetings FATF had with judges and prosecutors. The Executive Summary runs as follows:

FATF global anti-money laundering and countering terrorist financing efforts are focused both on effective prevention and disruption and on achieving convictions and asset recovery for the benefit of States and victims. Although FATF has had some interaction in recent years with prosecutors and similar experts on various issues, the relationship between the FATF and the criminal justice sector needed to be strengthened. For these reasons, the Argentine Presidency of the FATF initiated a global outreach programme to Criminal Justice Systems.

The main objectives of the project were:
• to prepare a report which identifies the experiences and challenges in relation to money laundering (ML) and terrorist financing (TF) investigations and prosecutions and the con- fiscation of criminal assets, and the good practices to deal with these issues;
• to enhance the FATF outreach to judges, prosecutors and investigators from different regions, boosting current and potential networks of collaboration, and getting practition- ers and relevant actors in close contact to discuss their common challenges and possible solutions, generating a framework to enhance international working relationships; and
• to get FATF and FSRBs countries to work together on these key elements of effectiveness for a successful AML/CFT system.
Through several regional workshops , the FATF in a joint effort with the FSRBs and other international organisations1 brought together almost 450 judges and prosecutors from more than 150 jurisdictions and observers to share experiences and best practices. This FATF President’s paper presents the conclusions from the workshops. Some of the main findings are listed below.

1. Relevant organisations were invited to participate and contribute to the discussions such as the Organisation for Security and Co-operation in Europe, the International Prosecutors Association, the International Magistrates Association and Asset Recovery Networks

FATF: prosecution made easy 
Worrying is that FATF’s recommendations are intended to make it ‘easy’ to convict people and organisations.

Some examples: (ML = money laundering):

Properly criminalising the offence: expand the scope of predicate offences to the broadest list of serious offences or to adopt an all-crimes approach, which may provide clarity and more flexibility for the prosecutors, especially when combined with a system that also incorporates the principle of opportunity.

Establish, whether through legislation or case precedent, that the predicate offence need not be proven in order to convict for ML.

FATF advises to simplify the task of the prosecutor by broadening the definition of terrorist financing:

Drafting the offence to be as broad as possible: for example, structuring the offence in a way that the suspect’s intent to finance specific terrorist acts does not need to be proven.

In that way a mother sending money to her son – without knowing he is a terrorist – can be convicted for terrorist financing.

The recommendations of FATF are dangerous, because they enable governmental greed to succeed in countering money laundering and terrorist financing, not observing human rights principles, and increase the risk of innocent people being convicted for crimes they did not commit.

Counter-terrorist financing and its impact on the right to a fair trial
Read on the subject counter-terrorist financing and its impact on the right to a fair trial for instance the thesis of Thomas. The abstract is as follows:

With the steep growth in terrorism over the past few years, it is now more essential than ever to have effective counter terrorism measures in place. One of those measures is the prevention and detection of terrorist financing. It is believed that by limiting terrorist’s access to funds, terrorist attacks can be prevented and terrorist groups can be dismantled. We have witnessed a surfeit of international and national Counter Terrorist Finance (CTF) provisions since September 2001 Notwithstanding the importance of such measures, their negative impact on the right to a fair trial is clear. Terrorist suspects have become the subjects of powerful sanctions, which designate them a terrorist and freeze their assets. This study compares the CTF approach of the US, UK and Canada and examines how their CTF measures impact upon a suspect and may potentially violate their right to a fair trial. The comparable CTF sanctions are enforced in the three case studies for a lengthy amount of time and in some instances indefinitely. Crucially, at this point no terrorist conviction or indeed charge has been laid against the suspect. The suspect is not afforded the opportunity to hear the case against them and to challenge evidence. Indeed many suspects have been the subject of a terrorist designation and asset freeze for a number of years and are never convicted or even charged with a terrorist related offence. With this in mind, this thesis argues that the punitive nature of these sanctions suggests that CTF sanctions are akin to being convicted of a criminal offence and as such they are wholly lacking in procedural protection.

On this basis, this thesis suggests that fundamental human rights such as the right to a fair trial should be permitted to apply in cases where CTF sanctions have been enforced. Currently, the CTF regime in the US, UK and Canada does not offer adequate procedural fairness and by underrating the importance of this human rights, the CTF regime has been left open to legal challenges regarding its legitimacy.

This research concludes on the notion the the right to a fair trial should be enforceable. However as CTF measures are administrative sanctions, it is unlikely that the properties of the right to a fair trial will be imposed. On this basis, recommendations are made for amendments to the CTF regimes in the US, UK and Canada, which offer improved procedural protection to suspects and ensure that action taken to designate and freeze assets is considered lawful.

 

More information:

Over Ellen Timmer

Weblog: https://ellentimmer.com/ ||| Microblog: https://mastodon.nl/@ellent ||| Motto: goede bedoelingen rechtvaardigen geen slechte regels
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