INTERNATIONAL CO-OPERATION IN THE FIGHT AGAINST ORGANIZED CRIME: CHALLENGES, STANDARDS OF PROOF, AND MUTUAL RECOGNITION OF ASSET FREEZING ORDERS AND CONFISCATION ORDERS

Abstract

The purpose of this article is to examine issues related to strengthening international legal assistance in the prevention and combating of organized crime. The relevance of this topic stems from the fact that, following the Russian Federation’s full-scale invasion of Ukraine in February 2022, Ukraine’s political economy has undergone profound changes. The aggression affected both legal and illegal trade routes, disrupted the activities of criminal organizations, and gave rise to new forms of informal and illicit trade along the front lines and in the country’s rear. This has also led to new challenges, such as the development of new skills and technologies that could be exploited by transnational organized crime, as noted in the report “Ukraine: Organized Crime Dynamics in the Context of War,” prepared by the Research and Trend Analysis Sector of the UNODC (Suggested Citation: UNODC, Ukraine: Organized Crime Dynamics in the Context of War, 2025). The study employed statistical methods (analysis of data from the Office of the Prosecutor General and the State Judicial Administration of Ukraine), analysis of national legislation, European Union law (directives, etc.), and the case law of the Court of Justice of the European Union; a comparative method to identify gaps in national legislation and make recommendations on the implementation of EU standards – particularly regarding the seizure and confiscation of assets; and a synthesis of reports from Interpol and Europol. The study resulted in the identification of ways to improve current legislation, driven by low rates of application of general and special forfeiture; the seizure and forfeiture of assets without a conviction in cases of the defendant’s illness or death; and other related issues. Based on the study’s findings, the author reached conclusions regarding the need to enhance the effectiveness of international cooperation, combat organized crime, and increase the number and value of confiscated assets obtained through criminal means by amending Parts 3 and 4 of Article 28 of the Criminal Code of Ukraine regarding the definition of the terms “organized group” and “organized criminal organization” in accordance with EU law (reducing the number of participants); supplement Article 66 of the Criminal Code of Ukraine with mitigating circumstances for persons who have assisted in the investigation of crimes committed by organized groups and criminal organizations; supplement Article 67 of the Criminal Code of Ukraine with an aggravating circumstance – the commission of a crime by an organized group or a criminal organization; supplement Article 96-3, “Grounds for Applying Criminal Law Measures to Legal Entities,” with Article 255-1 of the Criminal Code and establish liability for establishing or spreading criminal influence. It is also advisable, in accordance with the EU Directive of April 24, 2024, to bring the mechanism for the seizure and confiscation of assets into compliance (from third parties, without a conviction, without a sentence in cases of illness or death, etc.). In the Criminal Procedure Code of Ukraine, establish jurisdiction over cases where crimes are committed wholly or partially on its territory, regardless of where the criminal organization is based or operates; by one of its citizens; or in the interests of a legal entity established on the territory of that state. Exclude the possibility of confiscation based on a court decision issued by another state without the participation of the interested party, in violation of the right to access to judicial protection and the right to property. Provide for a provision whereby, if an offense falls under the jurisdiction of more than one state, and if any of the States concerned may lawfully initiate criminal proceedings based on the same facts, the States concerned shall cooperate in determining which of them will prosecute the offenders in order to centralize the proceedings in a single State.