Foreign property

1.    Recovering the proceeds or instrumentalities of crime in general includes numerous processes such as the tracing, freezing, confiscation, and repatriation of proceeds in foreign jurisdictions, thus "making it one of the most complex projects in the field of law."

2.    Criminal confiscation in personam is only possible when a legal basis exists between States, such as a bi-lateral or multilateral agreement.

3.    Mutual Legal Assistance (MLA) is vital to this process, although there remain countries that are reluctant to enforce a Court order from another jurisdiction without some form of pre-existing Treaty.

4.    To be truly effective, international asset recoveries through MLA require strong inter-state cooperation as well as two critical elements— a criminal conviction either in the requesting State or the recipient State, and an enforceable confiscation order.

5.    Unfortunately in reference to context such repatriation (i.e. release of confiscated wireless sets which belongs to Govt. of Nepal as asked by you) will be kept on hold due to India is presently negotiating MLA treaties with five countries, namely: Hong Kong (Special Administrative Region in the People's Republic of China), Nepal, Iran, Egypt and Australia.

6.    To the best of my experience the contextual items belonging to Govt. of Nepal cannot be repatriated back to Nepal till MLA is signed between two countries and thus there may not exist a Court ruling to such effects in this side of border from any of our Court of Law (baring vehicle / wildlife items / Nepalese goods passing through Indian territories confiscated by Indian Customs and on mutual co-operation repatriated back to Nepal for which yours and ours Customs DG level sits every year to discuss extending of such selective mutual co-operations etc.).

[Last reply]