Enhancing Integrity and Effectiveness of Illegal Asset Confiscation - European Approaches
Conviction-based confiscation or forfeiture, also called criminal forfeiture in some jurisdictions, means confiscation by the state of proceeds of crime for which a conviction has been recorded. It is an “in personam” order, an action against the person and requires a criminal trial and conviction, and is often part of the sentencing process. Some jurisdictions apply a lower standard of proof for the confiscation process than for the criminal portion of the process. Nonetheless, the requirement of a criminal conviction means that the government must first establish guilt “beyond a reasonable doubt” or such that the judge is “intimately convinced”. Criminal confiscation systems can be i) object-based, which means that the prosecuting authority must prove that the assets in question are proceeds or instrumentalities of the crime. Alternatively, they can be ii) value-based regimes, which allow confiscation of the value of offender’s benefit from the crime, without proving the connection between the crime and the specific object of property.