97. Several representatives supported the inclusion in paragraph 3 of a provision to the effect of reversing the onus of proof so as to remove the assumption of good faith and leave it to the accused trafficker to prove that his assets and property were acquired by licit means. One representative expressed the view that such reversal of the onus of proof should in principle remain restricted to the assessment of the value of profits made by a trafficker once he had been regularly convicted of an act of illicit traffic. Some other representatives expressed the view that a provision that would shift the burden of proof would not be acceptable under the different legal systems of potential States Parties.
98.
Attention was drawn to the fact that paragraph 3(a) in the present draft dealt simultaneously with measures to be taken at the domestic and at the international levels. In order to achieve greater clarity, it was proposed to divide the text into two separate subparagraphs covering, on the one hand, measures providing for the issue of orders to freeze and seize property by a Party on its own behalf, and, on the other hand, identical measures upon the application of another Party.
99.
Commenting on subparagraphs 3(a) (iv), a number of representatives objected to the provisions empowering administrators and trustees to sell property in their custody. It was pointed out that seizure being a provisional measure, the power to dispose of seized goods should be restricted to cases where perishable goods were involved, for the sake of preserving their value.
100. One representative sought clarification as to the difference between clauses (i) and (ii) of article 3, paragraph 3, subparagraph (b).
101. Several representatives considered as unacceptable the provision of subparagraph 3(b)(ii) regarding the forfeiture of proceeds, where there had been no conviction or prosecution, as the right to property was a fundamental right guaranteed by their constitution and domestic law. Such a provision was also considered as contrary to the principle of the presumption of innocence.
102.
Several representatives spoke in favour of deleting subparagraph 3(c) as the different categories of proceedings enumerated were confusing and superfluous. It was pointed out that the elements of evidence should be left
It was suggested that, should the subparagraph
to the assessment of courts.
be retained, the enumeration of proceedings should be revised.
103. Several representatives stressed that in order for the provisions of the article to be effective, foreign court orders for the forfeiture of property derived from the illicit traffic, should be enforceable in States Parties to the convention.
104.
A proposal was made to amend the second sentence of subparagraph 3(d) by replacing the word "may" by "shall" in order to make it clear that whenever lawful property was intermingled with illicit proceeds, the severance of that property from those proceeds should be mandatory. Several representatives objected to the proposed amendment on the grounds that the original formulation was more flexible in the sense that Parties had the option of forfeiting not only property derived from, or used in, the illicit traffic, but also property derived from other illegal activities. It was further argued, in favour of maintaining the present wording, that Parties should have