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Article
Publication date: 4 January 2008

Stefan D. Cassella

The paper is intended to illustrate the reasons why a legislature contemplating the enactment of a set of comprehensive asset forfeiture statutes to enhance the State's…

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Abstract

Purpose

The paper is intended to illustrate the reasons why a legislature contemplating the enactment of a set of comprehensive asset forfeiture statutes to enhance the State's ability to recover the proceeds of crime should include provisions relating to in rem civil forfeiture.

Design/methodology/approach

The paper reviews the law‐enforcement situations in which civil forfeiture statutes are essential to the State's ability to recover the proceeds of crime.

Findings

The paper concludes that in personam criminal forfeiture statutes, which authorize a court to impose forfeiture as an element of the defendant's sentence in a criminal case, are inadequate, by themselves, to allow the State to recover criminal proceeds, and that in rem civil forfeiture provisions must be included in a legislative scheme for it to be fully effective.

Practical implications

The paper is intended to be of practical value and national legislatures in countries attempting to modernize the law‐enforcement tolls available to them to recover criminal proceeds both domestically and in the global economy.

Originality/value

The paper outlines the reasons why a purely in personam asset forfeiture system that relies on a criminal conviction for the recovery of criminal proceeds in inadequate, and why governments implementing asset forfeiture schemes should make civil in rem forfeiture part of the legislative program.

Details

Journal of Money Laundering Control, vol. 11 no. 1
Type: Research Article
ISSN: 1368-5201

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Article
Publication date: 5 June 2020

Fabio Ramazzini Bechara and Gabriel Monti Manzano

This paper aims to answer three questions: Is the presumption of innocence principle in risk? How to balance it with the burden and standard of proof? Does the asset civil…

Abstract

Purpose

This paper aims to answer three questions: Is the presumption of innocence principle in risk? How to balance it with the burden and standard of proof? Does the asset civil forfeiture procedure imply a criminal charge? These are the main constitutional issues that have hampered the processing of, and consensus regarding, the regulation of the asset civil forfeiture in Brazil, the subject of bill 5681/2013 of the Chamber of Deputies and bill 255/2015 of the Federal Senate. The hypothesis is that the property or the possession of illegal assets implies a violation of the Brazilian Federal Constitution, which presumes good faith and non-abused use to be legitimated. This study intends to enrich this discussion with the current American debate, its main lessons and concerns to individual procedural safeguards.

Design/methodology/approach

There are some questions that should be addressed: Is the presumption of innocence principle in risk? How to balance it with the burden and standard of proof? Does the asset civil forfeiture procedure imply a criminal charge? Thus, this paper aims to discuss these questions, which are the main constitutional issues that have hampered the processing of, and consensus regarding, the regulation of the asset civil forfeiture in Brazil, the subject of bill 5681/2013 of the Chamber of Deputies and bill 255/2015 of the Federal Senate. The hypothesis is that the property or the possession of illegal assets implies a violation of the Brazilian Federal Constitution, which presumes good faith and non-abused use to be legitimated. This study intends to enrich this analysis with the current American debate about asset civil forfeiture provisions, its main lessons and concerns to individual procedural safeguards.

Findings

This paper focused on answering three questions: Is the presumption of innocence principle in risk? How to balance it with the burden and standard of proof? Does the asset civil forfeiture procedure imply a criminal charge? The authors sustained the constitutionality of the asset civil forfeiture from a Brazilian perspective, based on three main arguments: First, asset civil forfeiture is based on the non-abused use of property rights constitutional provision. Second, asset civil forfeiture does not imply on or presume a criminal charge. Finally, asset civil forfeiture is not based on the same standard of proof as a criminal proceeding.

Originality/value

The value of this paper is based on its current debate, the regulation of the asset civil forfeiture in Brazil, which is subject of bill 5681/2013 of the Chamber of Deputies and bill 255/2015 of the Federal Senate. The hypothesis is that the property or the possession of illegal assets implies a violation of the Brazilian Federal Constitution, which presumes good faith and non-abused use to be legitimated.

Details

Journal of Financial Crime, vol. 27 no. 4
Type: Research Article
ISSN: 1359-0790

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Article
Publication date: 15 January 2020

Anastasia Suhartati Lukito

The purpose of this paper is to analyze the unexplained wealth inside the corporation and to initiate and apply unexplained wealth order in the Indonesian corporation…

Abstract

Purpose

The purpose of this paper is to analyze the unexplained wealth inside the corporation and to initiate and apply unexplained wealth order in the Indonesian corporation based on the Indonesian legal system and prevailing laws. An effective tool needs to be implemented because of the facts that numerous corporate illegal activities lead to economic and financial crime. Meanwhile, there are difficulties to implement the corporate criminal liability. Non-conviction-based asset forfeiture will be a way out to deal with the current condition.

Design/methodology/approach

This paper explores and analyzes the Indonesian legal system, particularly a non-conviction-based asset forfeiture for corporate illegal activities. This paper is based on the research paper conducted with the legal normative approach.

Findings

Non-conviction-based asset forfeiture through unexplained wealth order will be an effective tool and a revolutionary pattern in the crime prevention perspective dealing with corporate crime. Corporate criminal liability in anti-corruption regime can be viewed from two perspectives by combining and integrating crime prevention approach as well as the repressive approach. The Indonesian Supreme Court Regulation number 13 of 2016 is a breakthrough in the criminal justice system to redesign case handling procedure toward corporate crime. It needs to be supported by precise asset forfeiture law. Furthermore it is necessity to strengthening and built corporations with moral and ethical business values.

Practical implications

This paper can be a source to explore the unexplained wealth that can occur in the corporation and the way to overcome it through unexplained wealth order and non-conviction-based asset forfeiture.

Originality/value

This paper contributes by initiating a non-conviction-based asset forfeiture, which is implementing the in rem proceeding, to make sure the crime does not pay and the victim and society suffer less because of the corporate crime.

Details

Journal of Financial Crime, vol. 27 no. 1
Type: Research Article
ISSN: 1359-0790

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Article
Publication date: 1 April 2006

Anthony Kennedy

In recent years an emerging global trend of introducing legislation to use civil procedures against criminal assets can be detected. However, these civil forfeiture

Abstract

Purpose

In recent years an emerging global trend of introducing legislation to use civil procedures against criminal assets can be detected. However, these civil forfeiture models, which exist vary from jurisdiction to jurisdiction. This paper seeks to identify issues which need to be considered when such a scheme is being designed and examines the options which have been adopted.

Design/methodology/approach

The paper examines the legislative provisions in a number of jurisdictions setting out the common issues which have arisen and the range of options which have attempted as potential solutions.

Findings

The paper concludes that jurisdictions which seek to introduce civil forfeiture legislations now have various examples from which to learn but that these models will likely evolve in the face of litigation and experience as legislatures and policymakers attempt to produce fair but effective procedures for the civil recovery of criminal proceeds.

Originality/value

As further jurisdictions respond to this emerging trend and draft their own legislation, there is much to be leant from the issues which others have considered necessary to address and the way in which these issues have been dealt with.

Details

Journal of Financial Crime, vol. 13 no. 2
Type: Research Article
ISSN: 1359-0790

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Article
Publication date: 4 January 2011

Nikolay Nikolov

This paper attempts to clarify and describe the general characteristics of civil forfeiture as a new national and international tool in the fight against organized crime.

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1801

Abstract

Purpose

This paper attempts to clarify and describe the general characteristics of civil forfeiture as a new national and international tool in the fight against organized crime.

Design/methodology/approach

The paper analyzes and compares the civil forfeiture legislations of five counties – the USA, Great Britain, Ireland, Bulgaria and Serbia and draws conclusions on the general characteristics of this legal phenomenon.

Findings

There are substantial differences between criminal and civil forfeiture which set the latter apart as an independent legal phenomenon. Unfortunately, few countries have effective legislations which regulate this tool for fighting organized crime. The importance of civil forfeiture lies in the fact that it shakes the economic foundations of organized crime using the methods and procedures of civil and administrative law even, in some countries, after the court has issued a verdict of “not guilty”.

Originality/value

The paper stresses the importance of international laws and regulations for the unification and development of national civil forfeiture legislations. The paper proposes that one way to develop civil forfeiture is to strengthen the imperative nature of EU legislation; to present annual reports at national and EU level before the EU Parliament and national parliaments proposing measures for the development and acceleration of the process; to turn CARIN into an EU institution. The paper also emphasizes the importance of the decisions of the Strasbourg court as standards for the application of civil forfeiture legislation.

Details

Journal of Money Laundering Control, vol. 14 no. 1
Type: Research Article
ISSN: 1368-5201

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Article
Publication date: 3 October 2016

Anusha Aurasu and Aspalella A. Rahman

Money laundering is a complex issue which has been ongoing for many years globally. Developed and developing countries form anti-money laundering regime in the view to…

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1141

Abstract

Purpose

Money laundering is a complex issue which has been ongoing for many years globally. Developed and developing countries form anti-money laundering regime in the view to combat these ever-challenging criminal activities. Laundering of money involves the hiding and cleaning of “dirty money” derived from unlawful activities. Malaysia has come up with its own regime of anti-money laundering. Anti-Money Laundering and Anti-Terrorism Financing Act 2001 (AMLATFA) provides power to forfeit proceeds at the end of proceedings. This paper aims to investigate whether the current civil forfeiture regime in Malaysia is effective in fighting against money laundering.

Design/methodology/approach

This paper will be based on a doctrinal research where reliance will mainly be on relevant case laws and legislations. AMLATFA is the primary legislation which will be utilised for the purpose of analysis.

Findings

Despite the enactment of AMLATFA, little study has been carried out on the effectiveness of civil forfeiture regime under Malaysian anti-money laundering laws. Furthering into forfeiture of criminal proceeds, the findings show that forfeiture provisions are the recent law enforcement strategy to fight against crimes. It is implicit that this strategy is more efficient than the conventional approach, which only focused on punishing the individual criminal but failed to diminish the criminal operations as a whole.

Originality/value

Strengths and weaknesses of AMLATFA are identified where it is less comprehensive in terms of offences covered and standard of proof. With that, this paper analyses the civil forfeiture regime under the Malaysian anti-money laundering laws. This paper would also offer some guiding principles for academics, banks, their legal advisers, practitioners and policymakers, not only in Malaysia but also elsewhere. Anti-money laundering laws can further be improved by being a better and established civil forfeiture regime where Malaysia will be able to discharge its duties well on forfeiting benefits from criminals.

Details

Journal of Money Laundering Control, vol. 19 no. 4
Type: Research Article
ISSN: 1368-5201

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Article
Publication date: 2 January 2018

Anusha Aurasu and Aspalella Abdul Rahman

Money laundering has been a focal problem worldwide. Governments constantly come up with initiatives to fight against this offence. To clean proceeds of corruption, the…

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896

Abstract

Purpose

Money laundering has been a focal problem worldwide. Governments constantly come up with initiatives to fight against this offence. To clean proceeds of corruption, the laundering of money is utilised, as it transforms “dirty” money into “clean” ones. A comparative analysis between Malaysia’s Anti-Terrorism Financing and Proceeds of Unlawful Activities Act (AMLATFPUAA) and United Kingdom’s Proceeds of Crime Act (POCA) is performed on the basis of the similarities and differences of both legislations, in terms of forfeiture provisions. The purpose of this paper is to investigate whether the current forfeiture regime in both jurisdictions is effective in fighting against money laundering.

Design/methodology/approach

This paper is based on a doctrinal research where reliance will mainly be on relevant case laws and legislations. AMLATFPUAA and POCA are key legislations which will be utilised for the purpose of analysis.

Findings

Strengths and weaknesses of both AMLATFPUAA and POCA are identified through a comparative analysis where findings show that POCA is more comprehensive than AMLATFPUAA in terms of offences covered by it and standard of proof. With that, the anti-money laundering (AML) laws can further be improvised by being a better and efficient regime where Malaysia and United Kingdom will be able to discharge their duties effectively on forfeiting benefits from criminals.

Originality/value

This paper offers some guiding principles for academics, banks, their legal advisers, practitioners and policy makers, not only in Malaysia but also elsewhere.

Details

Journal of Money Laundering Control, vol. 21 no. 1
Type: Research Article
ISSN: 1368-5201

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Article
Publication date: 8 July 2014

Robert G. Kroeker

The purpose of the paper is to trace the historical foundations of forfeiture from antiquity to its migration into early criminal law statutes. From there the discussion…

Abstract

Purpose

The purpose of the paper is to trace the historical foundations of forfeiture from antiquity to its migration into early criminal law statutes. From there the discussion turns to gaps in the law that gained recognition with the emergence of globalized economies and the development of technologies that allowed illicit wealth to be moved transnationally with ease and stealth. The balance of the paper will give an overview of the countermeasures taken in response to these gaps. The paper concludes with comment on the recent spread of non-conviction-based asset forfeiture laws and the practical use to which these laws can be put in relation to the tracing, seizing and forfeiture of illicitly acquired wealth.

Design/methodology/approach

The paper opted for a historical legal review of the development of forfeiture laws in common law jurisdictions.

Findings

The paper traces the development of the origins of forfeiture in the common law. It lays out the original compensatory objectives of forfeiture and its eventual migration into the criminal law. The paper describes how non-conviction-based asset forfeiture has evolved in modern times as a response to gaps in the criminal law that have been exposed by the pernicious aspects of globalized economies and the ease with which electronic intangible assets can be moved and beneficial ownership obscured.

Originality/value

This paper provides an overview of the origins of forfeiture law and traces the use and adaptation of that law as an emerging and effective response to transnational money laundering.

Details

Journal of Money Laundering Control, vol. 17 no. 3
Type: Research Article
ISSN: 1368-5201

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Article
Publication date: 14 August 2007

Courtney J. Linn

In today's global economy, the public routinely engages in international financial transactions via the internet. This has created opportunities for online fraud. The…

Abstract

Purpose

In today's global economy, the public routinely engages in international financial transactions via the internet. This has created opportunities for online fraud. The paper aims to explain what policymakers who are serious about providing crime victims with an effective restitution remedy can learn from the US Government's experience with forfeiture.

Design/methodology/approach

The paper, by an Assistant US Attorrney, combines narrative with argument and analysis.

Findings

Existing restitution law is ineffective. Prosecutors have used forfeiture laws as an indirect mean of providing compensation for crime victims, but forfeiture law has its limits. The better approach would be for Congress to authorize the pretrial seizure and restraint of assets directly for restitution, utilizing standards comparable to those that exist in current forfeiture law. To address situations where a defendant places money overseas to avoid restitution, Congress should enact international restitution laws comparable to those that exist in forfeiture to facilitate the recovery of those assets. Without these kinds of reforms, the government will continue to struggle to collect restitution.

Originality/value

The paper provides information of value to all involved with international financial transactions and law enforcement activities.

Details

Journal of Money Laundering Control, vol. 10 no. 3
Type: Research Article
ISSN: 1368-5201

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Article
Publication date: 1 June 2004

John L. Worrall

The argument is presented that, is contrast to expectations, the Civil Asset Forfeiture Reform Act (CAFRA) of 2000 will not be responsible for significant change in the…

Abstract

The argument is presented that, is contrast to expectations, the Civil Asset Forfeiture Reform Act (CAFRA) of 2000 will not be responsible for significant change in the practice of civil asset forfeiture, that the Act is a sheep in wolf's clothing. While it has ushered in some important procedural changes, CAFRA does not address several of what critics perceive to be the most significant problems associated with civil asset forfeiture, among them are a questionable standard of proof, equitable sharing, and the so‐called “taint doctrine.” Thus, it is likely that civil asset forfeiture will continue to be a valuable law enforcement tool in the war on drugs.

Details

Policing: An International Journal of Police Strategies & Management, vol. 27 no. 2
Type: Research Article
ISSN: 1363-951X

Keywords

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