Chief Justice Anthony Smellie, who also serves as Cayman’s authority for the Mutual Legal Assistance Treaty with the United States, recently presented a paper about forfeiting the proceeds of official corruption at a conference hosted by the United States Justice Department and the Organisation of American States for member countries. The conference was held in Miami, Florida.
The Chief Justice’s presentation was titled: International Co-operation against Money Laundering and Assistance in the Forfeiture of the Proceeds of Corruption: Enforcement of Judgements in Practice.
In his presentation he addressed the range of provisions in the Cayman Islands that support and facilitate quick action against fraudsters and embezzlers.
Chief Justice Smellie highlighted the fact that Cayman offers several avenues of assistance for investigation and prosecution. He noted as well that these avenues are soon to be enhanced by proposed domestic legislation that will give effect to the 2002 United Nations (Convention Against Corruption as well as the 1997 Organisation for Economic Co-operation and Development Convention.
He said that a range of local laws sought to achieve compliance with international standards. Some further modernising was still envisaged, however, to give full effect to ‘the very comprehensive requirement of the UN and OECD conventions.’
For instance, he explained that the penalty for official corruption, which currently provides for a maximum of three years imprisonment under Cayman Islands law, had been identified as needing to be increased.
The Cayman Government and legal and judicial systems were, however, deeply committed to the fight against the abuse of the financial services sectors.
Commenting on official corruption or embezzlement, the Chief Justice said that no other form of corruption could be more pernicious and devastating. ‘Hundreds of millions and even billions of dollars have been embezzled – in some cases, the near equivalent of the GDP of some victim states.’
In such instances, he noted that international cooperation amounted to more than just law enforcement and punishment for crimes committed. Assisting such victim states involves restoring their economies and the economic survival of their citizens.
Official corruption in Cayman has long been criminalized, Justice Smellie said, by means of adoption of UK legislation. For this reason Cayman can offer a range of legal assistance in response to requests from any country in the world. Such requests have been in the past received through Interpol or by way of Judicial Letters of Request.
He stressed the importance of requested states acting quickly once such requests are received, including before the requesting state can fully set out its case for restraint and forfeiture. Once a reasonable base for suspicion is presented, and once sufficient information is identified, action can and should be taken.
For instance, Justice Smellie noted that there were some instances in which Cayman authorities commenced their own investigations into an international matter, out of concern that local anti-money laundering laws were being violated.
In citing such a case, he said: ‘As one extraordinarily protracted request has shown, without a quick, decisive result being obtained in the courts of the requesting state, the very assets alleged to be the proceeds of crime could become the war chest from which the criminal is able to fight his claim over the proceeds.’
The Chief Justice suggested to the conference developing a written protocol for both formal and informal requests. This, he said, would explain the circumstances under which requests can be made and acted upon.
Such protocol already exists between the Cayman Islands and US authorities regarding requests under the Mutual Legal Assistance Treaty. He said it has been beneficial in eliminating confusion and saving time, effort and costs.
Existing measures for legal assistance include Letters Rogatory; The Confidential Relationships (Preservation) Law; The Proceeds of Criminal Conduct Law; The Criminal Justice (International Co-operation) Law 2003; the MLAT with the US ; and Extradition.
The Chief Justice cited several cases relevant to Cayman’s experience in which the use of these laws played significant and definitive roles.
Who they are
The Organization of American States is the region’s principal multilateral forum for strengthening democracy, promoting human rights and confronting shared problems such as poverty, terrorism, illegal drugs and corruption. It plays a leading role in carrying out mandates established by the hemisphere’s leaders through the Summits of the Americas.
The organization brings together the nations of the Western Hemisphere to strengthen cooperation on democratic values, defend common interests and debate the major issues facing the region and the world.
The core OAS mission can be summarised as a commitment to democracy. ‘The peoples of the Americas have a right to democracy and their governments have an obligation to promote and defend it.’ (Inter American Charter of the OAS)
The organization has 35 member states from the independent nations of North, Central and South America and the Caribbean. The government of Cuba, a member state, has been suspended from participation since 1962; thus only 34 members actively participate.
Member sates include: Antigua and Barbuda, Barbados, Brazil, Canada, Costa Rica, the Dominican Republic, Ecuador, Guyana, Haiti, Jamaica, Mexico, Peru and the United States of America.
The OAS communicates using four official languages – English, Spanish, Portuguese and French.
For more information on the OAS visit their home page at www.oas.org