Asset forfeiture

This article is about focuses on the confiscation/forfeiture of assets in common law countries. For cross-border recovery of the proceeds of corruption, see international asset recovery.

Asset forfeiture or asset seizure is a form of confiscation of assets by the state. It typically applies to the alleged proceeds or instruments of crime. This applies, but is not limited, to terrorist activities, drug related crimes, and other criminal and even civil offenses. Some jurisdictions specifically use the term "confiscation" instead of forfeiture. The purpose of asset forfeiture is to disrupt criminal activity by confiscating assets that potentially could have been beneficial to the individual or organization.

Civil and criminal law

Most legal systems distinguish between criminal and civil— and generally use separate courts, different procedures, and different evidentiary rules. The traditional view is that crimes are public wrongs—and that criminal law addresses those who harm society through morally culpable acts as a way to impose punishment and deter potential offenders from committing similar offenses. Criminal proceedings are therefore "officially designated ceremonies of guilt designation" and the label "criminal" carries with it a social stigma, which is not imposed on the losing party in a civil action. Because of this stigma and the potential punishment, which may be imposed by a criminal court, legal systems provide procedural protections above those available to a respondent in a civil case. For example, criminal proceedings require a higher standard of proof.

The bringing of civil proceedings is, by comparison, primarily the forum for a wronged private individual. Nevertheless, this too is not an absolute position, as the state also may sue in the civil courts as a wronged individual, for example, in respect of a contractual dispute with a multinational company. Civil law does not aim to punish, but rather is designed to provide two types of remedy. First, it provides a remedy requiring a return to the way things were, the status quo ante, so as to restore the position of an injured party. Second, it provides a remedy to compensate an injured party for harm done to him.

While the traditional view of civil and criminal proceedings might be described as neighboring countries divided by a common border, this dichotomy is not as distinct as that metaphor might suggest. In recent years there has been a growing homogeneity between criminal and civil procedures. Criminal cases now often involve civil, or quasi-civil, procedures and some civil litigation has become quasi-criminal. Indeed, it has been said that almost every attribute associated with the criminal law also appears in civil law and vice versa. This "significant disintegration of the wall between criminal and civil proceedings" has occurred on a number of fronts and is due, at least in part, to the fact that multiple strategies are now used to deal with crime. An early example was the use of injunctions to protect victims of domestic violence, even though, to obtain such an injunction, the plaintiff may be alleging the commission of a criminal assault. Rather than taking the traditional dichotomous perspective, recent legal proceedings might be better seen as a continuum, with distinctly civil proceedings at one end and clearly criminal proceedings at the other. Between the two ends of the continuum are a range of possibilities, each of which may be more or less criminal or civil.

Civil asset forfeiture has been harshly criticized by civil liberties advocates for its greatly reduced standards for conviction, reverse onus, and financial conflicts of interests arising when the law enforcement agencies who decide whether or not to seize assets stand to keep those assets for themselves.[1][2][3][4]

Canada

Part XII.2 of the Criminal Code, a federal statute, provides a national forfeiture régime for property arising from the commission of a designated offence (i.e. most indictable offences), subsequent to conviction. Provision is also made for the use of restraint and management orders to govern such property during the course of a criminal proceeding.[5]

All provinces and territories except Newfoundland and Labrador, Prince Edward Island and Yukon Territory, have also enacted statutes to provide for similar civil forfeiture régimes.[6][7] These generally provide, on a balance of probabilities basis, for the seizure of property:

The Supreme Court of Canada has upheld civil forfeiture laws as a valid exercise of the provincial government power over property and civil rights. The extent to which the Charter of Rights and Freedoms applies to civil forfeiture statutes is still under dispute. To the extent that such laws are applied for a "punitive" purpose, there is case law to suggest that the Charter applies.[9] In cases where evidence has been obtained illegally, courts in Alberta[10] and British Columbia[11] have excluded such evidence.

European Union

In April 2014, the European Parliament and the Council of the European Union enacted Directive 2014/42/EU on the freezing and confiscation of proceeds of crime in the European Union.[12] The directive allows the seizure and confiscation of property without a criminal conviction only under very specific circumstances.[13][14][15][16][17] Article 4 states:

  1. Member States shall take the necessary measures to enable the confiscation, either in whole or in part, of instrumentalities and proceeds or property the value of which corresponds to such instrumentalities or proceeds, subject to a final conviction for a criminal offence, which may also result from proceedings in absentia.
  2. Where confiscation on the basis of paragraph 1 is not possible, at least where such impossibility is the result of illness or absconding of the suspected or accused person, Member States shall take the necessary measures to enable the confiscation of instrumentalities and proceeds in cases where criminal proceedings have been initiated regarding a criminal offence which is liable to give rise, directly or indirectly, to economic benefit, and such proceedings could have led to a criminal conviction if the suspected or accused person had been able to stand trial.

United Kingdom

In the UK asset forfeiture proceedings are initiated under the Proceeds of Crime Act 2002. These fall into various types. Firstly there are confiscation proceedings. A confiscation order is a court order made in the Crown Court requiring a convicted defendant to pay a specified amount of money to the state by a specified date. Secondly, there are cash forfeiture proceedings, which take place (in England and Wales) in the Magistrates Court with a right of appeal to the Crown Court, having been brought by either the police or Customs. Thirdly, there are civil recovery proceedings that are brought by the National Crime Agency "NCA". Neither cash forfeiture proceedings nor proceedings for a civil recovery order require a prior criminal conviction.

In Scotland, confiscation proceedings are initiated by the procurator fiscal or Lord Advocate through the Sheriff Court or High Court of Justiciary. Cash forfeiture and civil recovery are brought by the Civil Recovery Unit of the Scottish Government in the Sheriff Court, with appeals to the Court of Session.

United Nations Convention against Corruption

To facilitate international cooperation in confiscation, the United Nations Convention against Corruption encourages state parties to consider taking the necessary measures to allow confiscation of the proceeds of corruption without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases.[18][19]

United States

There are two types of forfeiture (confiscation) cases, criminal and civil. Approximately half of all forfeiture cases practiced today are civil, although many of those are filed in parallel to a related criminal case. In civil forfeiture cases, the US Government sues the item of property, not the person; the owner is effectively a third-party claimant. The burden is on the Government to establish that the property is subject to forfeiture by a "preponderance of the evidence." If it is successful, the owner may yet prevail by establishing an "innocent owner" defense.

Federal civil forfeiture cases usually start with a seizure of property followed by the mailing of a notice of seizure from the seizing agency (generally the DEA or FBI) to the owner. The owner then has 35 days to file a claim with the seizing agency. The owner must file this claim to later protect his property in court. Once the claim is filed with the agency, the U.S. Attorney has 90 days to review the claim and to file a civil complaint in U.S. District Court. The owner then has 35 days to file a judicial claim in court asserting his ownership interest. Within 21 days of filing the judicial claim, the owner must also file an answer denying the allegations in the complaint. Once done, the forfeiture case is fully litigated in court.[20]

In civil cases, the owner need not be judged guilty of any crime; it is possible for the Government to prevail by proving that someone other than the owner used the property to commit a crime (this claim seems outdated and as such would be contradicted by the "innocent owner" defense). In contrast, criminal forfeiture is usually carried out in a sentence following a conviction and is a punitive act against the offender.

The United States Marshals Service is responsible for managing and disposing of properties seized and forfeited by Department of Justice agencies. It currently manages around $2.4 billion worth of property. The United States Treasury Department is responsible for managing and disposing of properties seized by Treasury agencies. The goal of both programs is to maximize the net return from seized property by selling at auctions and to the private sector and then using the property and proceeds to repay victims of crime and, if any funds remain after compensating victims, for law enforcement purposes.

History

Congress has incrementally expanded the government's authority to disrupt and dismantle criminal enterprises and their money laundering activities since the early 1970s. They have done this by enacting various anti-money laundering and forfeiture laws such as the RICO Act of 1970 and the US Patriot Act of 2001. The concepts of asset forfeiture goes back thousands of years and has been recorded throughout history on many different occasions.[21]

In 2015 a number of criminal justice reformers, including Koch family foundations and the ACLU, announced plans to reduce asset forfeiture in the United States due to the disproportionate penalty it places on low-income wrongdoers. The forfeiture of private property often results in the derivation of the majority of a person's wealth.[22]

Forfeiture of terrorist finances

It is hard for authorities to track, confiscate, and disrupt terrorist organization finances because they can come from a variety of sources—such as other countries, supporting sympathizers, crime, or legal businesses. Terrorist groups can profit from many crimes—such as black mail, robbery, extortion, fraud, drug trafficking, etc. If discovered and proven terrorist assets, authorities can confiscate property to disrupt terrorist activities. Understanding what constitutes 'terrorist property' is important, because these offenses are widely defined by the 2000 Act as;"

  1. Property or money that is likely to be used for the purposes of terrorism (including any resources of an organization)
  2. Proceeds of the commission of acts of terrorism
  3. Proceeds of acts actually carried out for the purposes of terrorism."[23]

The 2000 Act brought a new system for the forfeiture of terrorist cash. This was modeled on the UK's drug-trafficking cash seizure process and allowed for the seizure of cash for 48 hours by a constable, customs officer or immigration officer if reasonable grounds were found for suspecting that it was intended to be used for terrorism or was terrorist property. An officer who seized the assets or cash could apply to a magistrates' court for an order authorizing its continued detention to give time for further investigation into where it came from. The magistrates' court is generally satisfied on the balance of probabilities that the cash was intended to be used for the purposes of terrorism or was terrorist property, then it could make a forfeiture order.[23]

Use of forfeited assets

The assets that are forfeited for criminal and civil offenses are used "to put more cops on the street," according to former United States President George H. W. Bush.[24] The assets are dispersed among the law enforcement community for things such as paying the attorneys involved in the forfeiture case, police vehicles, meth-lab clean up, and other equipment and furniture.[21]

Notable forfeitures

For more, see Category:United States civil forfeiture case law

See also

References

  1. ↑ "The Forfeiture Racket". Reason.com. Retrieved 2013-06-18.
  2. ↑ "A truck in the dock". The Economist. May 27, 2010.
  3. ↑ Kevin Drum (2010-04-07). "Civil Asset Forfeiture". Mother Jones. Retrieved 2013-06-18.
  4. ↑ Osburn, Judy. "Forfeiture Endangers American Rights". FEAR. Retrieved 2013-06-18.
  5. ↑ "Criminal Code, RSC 1985, c C-46, Part XII.2". Retrieved 2012-04-29.
  6. ↑ John Thompson (2010-05-07). "Fighting civil forfeiture". Yukon News. Retrieved 2013-06-18.
  7. ↑ Joshua Alan Krane (2010). "Forfeited: Civil Forfeiture and the Canadian Constitution" (PDF). Retrieved 2012-04-29.
  8. ↑ "Civil Forfeiture in Ontario" (PDF). Retrieved 2012-04-29.
  9. ↑ Civil Forfeiture in Canada: Civil Forfeiture & the Charter
  10. ↑ Civil Forfeiture in Canada: Alberta (Minister of Justice) v Willis, 2015 ABQB 328 – Examination for Discovery Does Not Breach Charter Right to Silence
  11. ↑ Civil Forfeiture in Canada: British Columbia (Director of Civil Forfeiture) v. Huynh, 2013 BCSC 980 – Civil Forfeiture Engages “Exactly the Same Charter Principles” as Criminal Law
  12. ↑ Directive 2014/42/EU on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union
  13. ↑ Nielsen, Nikolaj (25 February 2014). "EU to donate criminal assets to charity". EUobserver.
  14. ↑ "European Parliament Passes New EU Rules To Crack Down On Crime Profits". RTTNews. 25 February 2014.
  15. ↑ "How seizing criminal assets could leave everyone better off - except criminals". European Parliament. 25 February 2014.
  16. ↑ "Cecilia Malmström welcomes European Parliament's vote on new EU rules to crack down on crime profits" (Press release). European Commission. 25 February 2014.
  17. ↑ "Making it easier to confiscate criminal assets EU-wide" (Press release). EPP Group. EurActiv. 25 February 2014.
  18. ↑ Proposal for a Directive of the European Parliament and of the Council on the freezing and confiscation of proceeds of crime in the European Union (COM/2012/085) at EUR-Lex
  19. ↑ United Nations Convention against Corruption § 54(1)(c)
  20. ↑ 18 United States Code 983(a) & Rule G, Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions
  21. 1 2 In Depth: Where the Money Goes: Forfeiture proceeds buy small luxuries, but no slush: [Final Edition] CHRIS DI EDOARDO AND A.D. HOPK. Las Vegas Review - Journal [Las Vegas, Nev] 01 Apr 2001: 27A.
  22. ↑ Hudetz, Mary (Oct 15, 2015). "Forfeiture reform aligns likes of billionaire Charles Koch, ACLU". The Topeka Capital Journal.
  23. 1 2 The Confiscation, Forfeiture and Disruption of Terrorist Finances Bell, R EView Profile. Journal of Money Laundering Control7.2 (Autumn 2003): 105-125.
  24. ↑ http://mediatrackers.org/assets/uploads/2012/07/DCCC2012JudyBiggertIL11-ResearchBook.pdf
  25. ↑ "Report: Ruth Madoff Agrees To Forfeit $80M". CBS News. June 28, 2009.
  26. ↑ "Lloyds TSB Bank Plc Agrees to Forfeit $350 Million in Connection with Violations of the International Emergency Economic Powers Act". U.S. Department of Justice. 2009-01-09. Retrieved 2013-06-18.
  27. ↑ "Credit Suisse Agrees to Forfeit $536 Million in Connection with Violations of the International Emergency Economic Powers Act and New York State Law" (Press release). U.S. Department of Justice. 2009-12-16. Retrieved 2013-06-18.
  28. ↑ "Barclays Bank PLC Agrees to Forfeit $298 Million in Connection with Violations of the International Emergency Economic Powers Act and the Trading with the Enemy Act" (Press release). U.S. Federal Bureau of Investigation. 18 August 2010. Retrieved 2013-06-18.
  29. ↑ "Former ABN Amro Bank N.V. Agrees to Forfeit $500 Million in Connection with Conspiracy to Defraud the U.S. & with Violation of Bank Secrecy Act". Washington: Financialtaskforce.org. 2010-05-10. Retrieved 2013-06-18.
  30. ↑ "Triumphant motel owner slams Carmen Ortiz". Boston Herald. 2013-08-07. Retrieved 2013-08-07.
  31. 1 2 "Texas Seizes Polygamist Warren Jeffs' Ranch". Eldorado, Texas: NBC. Associated Press. April 17, 2014. Retrieved April 18, 2014.
  32. 1 2 Carlisle, Nate (April 17, 2014). "Texas takes possession of polygamous ranch". The Salt Lake Tribune (Eldorado, Texas: MediaNews Group). Retrieved April 17, 2014.

Further reading

External links

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