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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

Keywords

Article
Publication date: 23 April 2021

Aspalella A. Rahman

This paper aims to analyze the forfeiture regime under the Malaysian anti-money laundering law. Apart from discussing the relevant provisions, several court cases also…

Abstract

Purpose

This paper aims to analyze the forfeiture regime under the Malaysian anti-money laundering law. Apart from discussing the relevant provisions, several court cases also were examined to identify the problems which arise in the implementation of such a powerful forfeiture regime.

Design/methodology/approach

This paper mainly relies on statutes and court cases as its primary sources of information. It is supported by secondary data to justify the analysis. This paper also used analytical descriptive approach to analyze relevant forfeiture provisions from statutes and to examine current court cases regarding the implementation of the forfeiture regime.

Findings

The Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act (AMLATFPUAA) provides comprehensive procedures for the forfeiture of criminal proceeds. Any limitations of the previous statutory legislations have been addressed, and more importantly, the AMLATFPUAA introduces more powerful and innovative measures that can facilitate the recovery of illegal proceeds from money laundering and any other serious crimes. The AMLATFPUAA also provides avenue for the bona fide third parties to contest the forfeiture order. However, it appears that such right is not easy to be enforced.

Originality/value

This paper provides an analysis of the forfeiture regime under Malaysian anti-money laundering laws. It is hoped that the content of this paper can provide some insight into this particular area for enforcement authorities, practitioners, academics, policymakers and legal advisers not only in Malaysia but also elsewhere. The findings of this paper also expose any weakness or lacunae in the aspects of application and implementation of the forfeiture regime. Thus, more effective and workable legal solution especially on the issue of civil forfeiture of criminal assets could be considered for further accomplishment.

Details

Journal of Money Laundering Control, vol. 25 no. 1
Type: Research Article
ISSN: 1368-5201

Keywords

Open Access
Article
Publication date: 27 May 2021

Olusola Joshua Olujobi

The aim of this study is to investigate how Nigeria can seek legal assistance on recovery of its stolen assets to reduce corruption and to ensure no sheltered havens for…

Abstract

Purpose

The aim of this study is to investigate how Nigeria can seek legal assistance on recovery of its stolen assets to reduce corruption and to ensure no sheltered havens for incomes from corruption.

Design/methodology/approach

The research adopts a conceptual method by using existing literature with the application of doctrinal legal research technique. The research likewise uses primary and secondary sources of legislations such as legislative provisions, case laws and the provisions of Chapter V of the United Nations Convention against Corruption and the process of asset recovery. The study compares the United Kingdom, USA, Hong Kong in China, South Africa and Nigeria proceeds of corruption recovery laws to gain basic legal features that would be beneficial to Nigeria in reforming its anti-corruption laws.

Findings

The principle of territorial sovereignty under the international law makes the offence of corruption not punishable outside the jurisdiction of the state where the offence was committed. As a result, some developed states boost their economy with these proceeds and the developing states are impoverished. There is also an allegation of discrepancies in the figures of funds recovered by the anti-corruption agencies. Thus, there is the need for transparency; law on civil forfeiture of proceeds of corruption; bilateral treaties; and mutual legal assistance on investigation, confiscation among countries for tracing and returning of proceeds of corruption.

Research limitations/implications

The estimates of the volume of assets looted from Nigeria vary widely because of the complexity of collecting data on proceeds of corruption as official statistics on proceeds of corruption recovered do not exist as each anti-corruption agency occasionally makes pronouncements on the volume of assets recovered without any breakdown in terms of assets seized, nature of assets and their locations and its values. Such data would aid policymakers to measure the effectiveness of the present assets legislations and to enhance its effectiveness.

Practical implications

Considering the clandestine manners corruption is being committed, it is tasking to correctly evaluate the amount of money stolen so, their economic impacts on the nation’s economy.

Social implications

Absence of accurate data would aid policymakers to measure the effectiveness of the present assets legislations and to enhance its effectiveness.

Originality/value

The study offers modules on management of proceeds of corruption by establishing “Assets Management Commission” and “Proceeds of Corruption Forfeiture Funds” for reparation of victims’ of corruption. The study suggests the necessity for civil forfeiture of proceeds of corruption, which is presently lacking, and creation of Proceeds of Corruption Recovery and Management Commission to manage such proceeds and advocate establishment of “Proceeds of Corruption Forfeiture Funds” for reparation of victims of corruption.

Details

Journal of Money Laundering Control, vol. 24 no. 4
Type: Research Article
ISSN: 1368-5201

Keywords

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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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

Keywords

Article
Publication date: 1 October 2018

Constance Gikonyo

The purpose of this paper is to consider the applicability and challenges of using asset forfeiture mechanisms in taking away the illicit gains of Somali piracy for ransoms.

Abstract

Purpose

The purpose of this paper is to consider the applicability and challenges of using asset forfeiture mechanisms in taking away the illicit gains of Somali piracy for ransoms.

Design/methodology/approach

The paper presents a desk research on the issue. It is based on analysis of the key principles in the area and relevant literature on the subject.

Findings

Asset forfeiture mechanisms can be used to facilitate the seizure of Somali piracy proceeds. It is applicable to those who directly or indirectly benefited from piracy: the foot soldiers, financiers and other beneficiaries. This would enable withdrawal of piracy re-investment capital and hence may act as a disincentive for current and prospective offenders.

Research limitations/implications

For the initiative to work, various states and other actors need to cooperate. However, incentives such as corruption, the personal interests of individuals and states that have benefited from Somali piracy, may make them unwilling to collaborate. This would definitely hinder the implementation and effectiveness of using asset forfeiture.

Originality/value

Much of the literature on Somali piracy for ransoms has focussed on maritime solutions. Further, authors and organisations have advocated for following the money trail. As a result, consideration of the benefits and challenges of doing so needs to be done. This paper seeks to fill this gap.

Details

Journal of Money Laundering Control, vol. 21 no. 4
Type: Research Article
ISSN: 1368-5201

Keywords

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

Keywords

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

Keywords

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

Keywords

Article
Publication date: 1 February 1999

Michelle Gallant

In November 1998, the Home Office Working Group on Confiscation, a group convened in 1990 to monitor the operation of confiscation and money‐laundering legislation…

Abstract

In November 1998, the Home Office Working Group on Confiscation, a group convened in 1990 to monitor the operation of confiscation and money‐laundering legislation, released its third report, a comprehensive examination of the confiscation and money‐laundering control regimes in England and Wales. The report recommends numerous changes, some of which fill gaps in the present framework and others that radically alter the methods deployed to ensure that criminal profits do not lie secure in the hands of their owners. Previous reports heavily influenced subsequent legislative developments so it is anticipated that this document foreshadows the legislative course to be pursued by the Labour Government in the near future.

Details

Journal of Financial Crime, vol. 6 no. 4
Type: Research Article
ISSN: 1359-0790

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

Keywords

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