Seized or Confiscated Asset Management Service: organisation and exercise of its functions (Sovereign Order 10.245 of 7 December 2023)

Sovereign Order no. 10.245 of 7 December 2023 (JDM no. 8673 of 15 December 2023) implementing Chapter II of Law no. 1.535 of 9 December 2022 on the seizure and confiscation of instrumentalities and the proceeds of crime, governs the organisation (Chapter I) and performance (Chapter II) of the "Service administratif de gestion des avoirs saisis ou confisqués" (Seized or Confiscated Asset Management Service), an administrative department placed under the authority of the Secretary of State for Justice, Director of Judicial Services.

Sovereign Order no. 10.247 of 7 December 2023 (JDM of the same day) appoints the Director of the service, until 31 August 2025.

Sovereign Order no. 10.246 of 7 December 2023 amending Sovereign Order no. 6.317 of 20 March 2017 creating the Administration des Domaines adds to its remit the implementation of the procedure for the disposal of seized or confiscated assets, the seized or confiscated assets management service being able to call upon the Administration des Domaines for this purpose.

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For the record, Law no. 1.535 added a new Title V bis - The seized or confiscated assets management service (new articles 95-1 to 95-9) to Law no. 1.398 of 24 June 2013 on the administration and organisation of the judiciary.

The creation of the Seized or Confiscated Assets Management Service is in line with the Principality's international commitments, following the Interpretative Note to FATF Recommendations 4 "Confiscation and Provisional Measures" and 38 "Mutual Legal Assistance: Freezing and Confiscation", and Article 10 of Directive 2014/42/EU of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union (to be implemented in Monaco by measures equivalent to those taken by member states, under the Monetary Agreement with the European Union of 29 November 2011).

Article 10 "Management of frozen and confiscated property" of Directive 2014/42/EU requires "the necessary measures, for example by establishing centralised offices, a set of specialised offices or equivalent mechanisms, to ensure the adequate management of property frozen with a view to possible subsequent confiscation", such measures "to include the possibility to sell or transfer property where necessary".

The Interpretative Note to Recommendations 4 and 38 of the FATF states that countries should establish mechanisms to enable their competent authorities to effectively manage and, if necessary, dispose of frozen, seized or confiscated assets. These mechanisms should be applicable both in domestic proceedings and in response to requests from foreign countries (international mutual legal assistance).

Finally, it should be remembered that "seizure is a preliminary measure designed to preserve property with a view to possible subsequent confiscation, while confiscation is a penalty imposed by the court with the effect of dispossessing the person concerned of his property". (Explanatory memorandum to Bill no. 1.067, which became Law no. 1.535 of December 9, 2022, cited above).

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Organisation of the "Service administratif de gestion des avoirs saisis ou confisqués":

¤ The internal organisation of the service is determined by an order of the Secretary of State for Justice, Director of Judicial Services.

¤ Duties of the director of the service:

• The Director is responsible for the general management of the service and has authority over the staff. He may issue internal directives necessary for this purpose.
• He is responsible for the proper performance of the tasks assigned to the service by law.
• He draws up a general programme of the services activities.
• Under delegated authority from the Secretary of State for Justice, Director of Judicial Services, he may sign government contracts with an estimated value of less than €100,000 excluding tax.

¤ The service draws up an annual activity report (including, in particular, a statistical report as well as any reflections and proposals aimed at improving the law and practices relating to seizure and confiscation) which is made public.

¤ Creation of an information committee ("Comité d'information") on the management of seized or confiscated assets:

→ Composition:

• chaired by the Director of Judicial Services;
• Government Councillor-Minister of the Interior or his representatives;
• Government Councillor-Minister of Finance and the Economy or his/her representative;
• Public Prosecutor or his/her representative;
• investigating judge appointed by the President of the Court of First Instance;
• Director of the seized or confiscated assets management service and/or his/her deputy.

→ Duties:

• to review the department's general programme of activities and present future prospects;
• to raise any issue relating to the performance of the department's management duties;
• to discuss the general conditions of recruitment and employment of the department's staff, in particular civil servants and contract staff from the Department of the Interior and the Department of Finance and the Economy.

The Secretary of State for Justice, Director of Judicial Services, may from time to time add to the Information Committee, as necessary, any qualified person whom he deems it useful to consult.

The Information Committee meets at least once a year at the invitation of its Chairman and, whenever necessary, at his request or at the initiative of the Government Counsellor-Minister of the Interior or the Government Counsellor-Minister of Finance and the Economy.

The Seized and Confiscated Assets Management Service prepares, provides secretarial services for and monitors the work of the Information Committee.

Carrying out the tasks of the seized or confiscated assets management service:

¤ Objective of prudent management, and seeking, as far as possible, to increase the value of assets.

¤ Custody or any other act of management or administration that the seized or confiscated assets management service carries out itself or, when it considers it necessary, through a third party.

¤ Custody of sums of money:

• The seized or confiscated assets management service concludes special agreements with the Caisse des Dépôts et Consignations or with financial institutions approved in Monaco;
• The seized or confiscated sums and sums from the disposal of assets are deposited in an account opened with the Caisse des Dépôts et Consignations or with financial institutions approved in Monaco.

¤ Procedure when the seized or confiscated assets management service is instructed by the court to dispose of seized movable property or confiscated movable or immovable property.

The seized or confiscated assets management service may call upon the Administration des Domaines.

¤ Procedure when the seized or confiscated assets management service is entrusted, under a court order, with the destruction of seized or confiscated movable property, in compliance with the legal and regulatory provisions, in particular environmental provisions, applicable to the destruction of property.

¤ The costs of managing, administering or conserving seized or confiscated property entrusted to the seized or confiscated assets management service are charged to the budget of the Judicial Services Department.

¤ Information and training initiatives designed to raise awareness of its tasks and to promote good practice useful in carrying out seizures and confiscations in criminal matters may be carried out with the assistance of the Monegasque Institute for Training in the Judicial Professions.

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