Illegal Asset Confiscation

WHAT IS NON-CONVICTION-BASED CONFISCATION?

Non-conviction-based confiscation or forfeiture means asset confiscation in the absence of the conviction of the wrongdoer. The term is used interchangeably with civil forfeiture, in rem forfeiture and objective forfeiture. NBC confiscation is an action against the asset itself. It is a separate action from any criminal proceeding and requires proof that the property is tainted (that is, the property is the proceeds or an instrumentality of crime). Generally, the criminal conduct must be established on a balance of probabilities standard of proof. This eases the burden on the government and means that it may be possible to obtain confiscation when there is insufficient evidence to support a criminal conviction. Because the action is not against an individual defendant, but against the property, the owner of the property is a third party having the right to defend the property. NCB asset confiscation can be particularly effective in divesting the politically corrupt of the fruits of their crimes and restoring those funds to the citizens of the victimized state. While NCB asset confiscation should never be a substitute for criminal prosecution, in many instances (particularly in the context of official corruption), NCB asset confiscation may be the only tool available to recover the proceeds of those crimes and to exact some measure of justice. The influence of corrupt officials and other practical realities may prevent criminal investigations entirely, or until after the official has died or absconded. It is not uncommon for a corrupt official who robs a country to also attempt to obtain immunity from prosecution. Because an NCB asset confiscation regime is not dependent on a criminal conviction, it can proceed regardless of death, flight, or any immunity the corrupt official might enjoy.