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Article
Publication date: 19 October 2020

Todor Kolarov

The purpose of this paper is to evaluate the benefits and challenges, on the national and international level, associated with the settlement of cases involving…

Abstract

Purpose

The purpose of this paper is to evaluate the benefits and challenges, on the national and international level, associated with the settlement of cases involving non-conviction civil confiscation of unexplained wealth.

Design/methodology/approach

This paper is centered on evaluation of key aspects of settlement of civil confiscation of unexplained wealth cases. Conducting a review of settlement of confiscation cases and of non-conviction-based unexplained wealth regimes, this research evaluates the validity of the lead thesis.

Findings

Settlement of civil asset confiscation of unexplained wealth cases presents several challenges that call for mitigation.

Originality/value

This paper emphasizes the theoretical and practical issues on the national and international level related to settlement of cases involving non-conviction-based civil asset confiscation of unexplained wealth, with recommendations for development of legal principles for non-conviction based civil asset confiscation.

Details

Journal of Money Laundering Control, vol. 24 no. 3
Type: Research Article
ISSN: 1368-5201

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Article
Publication date: 28 January 2020

Todor Kolarov

Using Bulgarian legislation on civil confiscation and analysing the nature of the substantive authority to confiscate unexplained wealth, as well as evaluating research in…

Abstract

Purpose

Using Bulgarian legislation on civil confiscation and analysing the nature of the substantive authority to confiscate unexplained wealth, as well as evaluating research in common and continental law, this paper aims to seek historic parallels for non-punitive civil confiscation of unexplained wealth.

Design/methodology/approach

The design of this paper is centred on determining whether the substantive authority of the state to confiscate unexplained wealth has a Roman law equivalent. Conducting a review of key elements of the substantive authority for the action in Bulgaria, the research examines the validity of the hypothesis that the right to confiscate has a Roman law equivalent.

Findings

The research supports the position that the substantive authority to seek civil confiscation relief in Bulgaria has its origin in the overarching principle of unjustified enrichment in Roman law. Considering needed adjustments related to the developed demarcation between public and private law in contemporary law, the action to confiscate unexplained wealth in civil proceedings in the case study jurisdiction has its equivalent in the Roman condictio furtiva.

Originality/value

This paper sheds light on the theoretical basis for civil asset confiscation of unexplained wealth in one continental law jurisdiction, thus contributing to the on-going debate on the compatibility of civil confiscation of unexplained wealth with the continental law tradition.

Details

Journal of Financial Crime, vol. 27 no. 2
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

Keywords

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Article
Publication date: 7 October 2013

Martin Collins and Colin King

Targeting criminal assets plays a key role in tackling crime, yet there is a notable absence of research on the operation and impact of this approach. This article calls…

Abstract

Purpose

Targeting criminal assets plays a key role in tackling crime, yet there is a notable absence of research on the operation and impact of this approach. This article calls for greater engagement between policymakers, practitioners and researchers to address this. Using experiences from Scotland, the article focuses on the use of civil recovery and identifies a number of areas that are in need of further research. This paper aims to discuss these issues.

Design/methodology/approach

This article is a collaborative effort by a member of the Scottish Civil Recovery Unit and an academic researcher. The aim was to stimulate debate on the use of civil recovery, its impact, and future research directions. It draws upon two case studies from Scotland to illustrate how civil recovery has operated in practice.

Findings

There are important distinctions between the civil recovery regime in Scotland and the regime that applies in other parts of the UK (e.g. the absence of “incentivisation”). There is a need to consider how the impact of civil recovery can be measured, and there is scope for future research in this area.

Research limitations/implications

There is a notable absence of empirical research on civil recovery. The hope is that this article will lead to greater engagement between policymakers, practitioners and researchers. There is a need for empirical research on areas such as has civil recovery disrupted criminal activities, what intelligence gains does asset recovery bring, does asset recovery offer value for money, how is “impact” to be measured, etc.

Practical implications

As civil recovery increases in popularity as a form of crime control, this article calls for greater empirical research on the operation and impact of the civil process to tackling criminal assets. This is especially important today as the European Union is investigating the possibility of a European model of non-conviction based asset recovery.

Originality/value

Discussion of civil recovery under the Proceeds of Crime Act 2002 tends to focus on England and Wales. This article considers civil recovery from a Scottish perspective.

Details

Journal of Money Laundering Control, vol. 16 no. 4
Type: Research Article
ISSN: 1368-5201

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Article
Publication date: 26 February 2021

Thu Thi Hoai Tran and Louis De Koker

The purpose of this paper is to analyze the Vietnamese laws and practices concerning the confiscation of proceeds of crime, especially in view of Vietnam’s obligations to…

Abstract

Purpose

The purpose of this paper is to analyze the Vietnamese laws and practices concerning the confiscation of proceeds of crime, especially in view of Vietnam’s obligations to meet the international standards on money laundering and terrorist financing, set by the Financial Action Task Force and relevant international conventions that Vietnam ratified. To limit the scope of this paper, the analysis focuses on the confiscation of proceeds of domestic crimes that do not require international legal assistance. This paper concludes with recommendations for improving the legal framework on criminal asset recovery in Vietnam.

Design/methodology/approach

This is a doctrinal study that considers the applicable legal framework. This study is supported by brief case studies of major cases involving the confiscation of proceeds of crime.

Findings

Vietnam has a functioning asset confiscation regime but gaps in the law, lack of financial investigation expertise and lack of focused investigative attention on asset preservation and confiscation are hampering its effectiveness. The key gaps can easily be closed with appropriate amendments to the law. These reforms should be combined with a dedicated skills development program to produce sufficient number of financial investigation experts and criminal asset management experts to support the regime. The training should extend to judicial officers to ensure an appropriate understanding of the asset confiscation law. Reforms such as these should follow on a comprehensive review of Vietnam’s law and practices relating to the confiscation and forfeiture of criminal assets. This review should extend to assets linked to the financing of terrorism and proliferation to ensure that Vietnam has a comprehensive regime to deal with criminal assets.

Research limitations/implications

This paper draws on publicly available information regarding the confiscation of proceeds of crime in Vietnam. Little data is available on asset confiscation and that prevents an in-depth assessment of the regime.

Originality/value

This paper highlights gaps in the current asset confiscation regime and proposes reforms and approaches that will ensure a more effective asset confiscation regime for Vietnam.

Details

Journal of Money Laundering Control, vol. 24 no. 2
Type: Research Article
ISSN: 1368-5201

Keywords

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Article
Publication date: 1 April 2019

Johan Boucht

The purpose of this paper is to paint a general picture of the asset confiscation regimes used in Europe and to outline potential challenges, practical and related to…

Abstract

Purpose

The purpose of this paper is to paint a general picture of the asset confiscation regimes used in Europe and to outline potential challenges, practical and related to issues of principle, associated with the current development with regard to the confiscation of the proceeds of crime and criminals’ proceeds.

Design/methodology/approach

The paper endeavours to analyse the various steps of the confiscation process, and the various approaches to the confiscation of proceeds of crime and criminals’ proceeds from a holistic perspective. The findings of the paper are based on a literature review along with a legal analysis of the existent legal frameworks.

Findings

It is suggested that the efficiency of asset confiscation should be looked at from a holistic perspective involving the entire confiscation process, and not only focus on the confiscation powers awarded to the courts. Challenges relating to efficiency exist along the entire process, from the stage of financial investigations to the enforcement stage. Some of the methods used for confiscating criminal proceeds are becoming very far-reaching and raise concerns related to basic principles of criminal law and criminal procedural law.

Research limitations/implications

This paper is not based on empirical research relating to, for example, the efficiency of confiscation. More empirical research would, however, be welcome in this field.

Practical implications

The paper suggests that the efficiency of asset confiscation is contingent on the entire confiscation chain functioning efficiently. Before new and more repressive measures are introduced, the existing legal framework should be fully deployed and the concrete needs for new tools clearly delineated.

Originality/value

The paper analyses confiscation with a view to the entire chain rather than merely looking at a particular confiscation scheme.

Details

Journal of Financial Crime, vol. 26 no. 2
Type: Research Article
ISSN: 1359-0790

Keywords

Content available
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. ahead-of-print no. ahead-of-print
Type: Research Article
ISSN: 1368-5201

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Article
Publication date: 2 January 2018

Francis Dusabe

In this paper, the author intends to showcase the effectiveness of the Rwandan legal regime governing criminal asset recovery. This paper aims to advocate for a need to…

Abstract

Purpose

In this paper, the author intends to showcase the effectiveness of the Rwandan legal regime governing criminal asset recovery. This paper aims to advocate for a need to enforce laws, which seems to be dormant, and to ensure fairness of action when confiscating or seizing assets that initially belongs to bonafide third parties.

Design/methodology/approach

The author assesses the effectiveness of law No. 42/2014 of 27/01/2015 governing the recovery of offence-related assets in Rwanda and compares it with established international standards provided in major conventions to which Rwanda is a party. Primary and secondary sources of legal research have been used. Primary sources include international conventions, domestic laws and case laws. Secondary sources include books, chapters, journal articles and policy papers.

Findings

In this paper, the author submits that the law on crime-related asset recovery suffers from strategic deficiencies and gaps and posits that the process of asset recovery should be streamlined and balanced to meet the aims of crime prevention.

Originality/value

This research paper is a first of its kind. Through positive criticism, it showcases that Rwanda is doing well through the establishment of relevant laws to combat crime. However, it proposes solutions to identify gaps. This paper is original and has never been published anywhere else, and all sources used have duly been recognized.

Details

Journal of Financial Crime, vol. 25 no. 1
Type: Research Article
ISSN: 1359-0790

Keywords

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Article
Publication date: 2 July 2019

Georgios Pavlidis

The purpose of this paper is to critically examine the strengths and weaknesses of a new European Union (EU) initiative attempting an interesting paradigm shift in the…

Abstract

Purpose

The purpose of this paper is to critically examine the strengths and weaknesses of a new European Union (EU) initiative attempting an interesting paradigm shift in the field of cross-border asset freezing and confiscation. The entry into force of the Lisbon Treaty and lessons learned from the manifest failure of past EU initiatives (Framework Decisions 2003/577/JHA and 2006/783/JHA) have allowed for such a paradigm shift for the strengthening of mutual recognition of freezing and confiscation orders in the EU.

Design/methodology/approach

This paper draws on reports, legal scholarship and other open source data to examine a legislative innovation for the mutual recognition of freezing and confiscation orders in the EU.

Findings

The EU legislative initiative that will be examined is innovative in nature and goes beyond international norms on cross-border asset freezing and confiscation. The new initiative needs to be integrated into the broader EU framework that targets criminal proceeds, and at the same time, to be anchored to respect for human rights.

Originality/value

This study examines the strengths and weaknesses of an important new EU initiative, its compatibility with human rights standards and its relationship to international standards of cross-border asset freezing and confiscation.

Details

Journal of Financial Crime, vol. 26 no. 3
Type: Research Article
ISSN: 1359-0790

Keywords

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Article
Publication date: 1 March 2000

R.E. Bell

Over the last two decades in particular, national legislatures have passed legislation aimed at ensuring that criminals do not profit from crime. This has been in response…

Abstract

Over the last two decades in particular, national legislatures have passed legislation aimed at ensuring that criminals do not profit from crime. This has been in response to the rise of organised crime and to the massive amounts of money being generated, in particular, by drug trafficking. It has been an attempt to destroy ‘the heart of the monster, its financial base’. This paper seeks to demonstrate that the proceeds of crime response by national governments can be perceived as evolving through a series of different models, thus allowing a comparative approach amongst different jurisdictions. Each model is composed of elements from three different strands: money‐laundering legislation, confiscation legislation and organisational structures and arrangements. These strands have each gone through their own evolution, which will now be examined.

Details

Journal of Financial Crime, vol. 8 no. 1
Type: Research Article
ISSN: 1359-0790

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