Non Conviction Based (NCB) Forfeiture

It is not always possible to prosecute offenders. Sometimes it might even be for unforeseeable reasons, such as when the culprit is deceased or has absconded. Yet, in some cases it is possible to identify assets that are the proceeds of crime. Consequently a response strategy that relies upon dalternative measures has been developed.

Although relatively few jurisdictions allow for civil forfeiture there is an increasingtrend to introduce legislation to enable stand-alone civil proceedings to recover the proceeds of crime. Some examples include Antigua and Barbuda, Australia, some Canadian Provinces, Ireland, Italy, Slovenia, South Africa, and the United Kingdom.

The trend towards civil forfeiture has been prompted by the tendency of organized criminal groups to use their resources to distance themselves from the criminal activity and to hide the illicit origin of their assets. When it is difficult to obtain the conviction of such individuals, these proceeds derived from crime are often effectively out of the reach of the law, and the criminals are able to peacefully enjoy their ill-gotten gains. This damages public confidence and works in detriment of the general detterent purpose of criminal law.

Non conviction based forfeiture enables States to recover illegally obtained assets from an offender via a  direct action against his or her property without the requirement of a criminal conviction. The State will still have to prove within the balance of probabilities that the offender's assets are either the proceeds of crime or represent property used to commit a crime i.e. instrumentalities.

Civil asset forfeiture is convenient in a number of cases such as:

a)    The defendant is deceased. Since traditional criminal law focuses on a person's responsibility the usual way to retrieve proceeds of crime has been the action in persona. When a person has died and therefore the possibility to prosecute has been extinguished, traditionally this has meant that the illegally obtained assets may not be recovered. Since in rem action goes directly against the assets themselves, this is the perfect remedy in such cases.

b)    The defendant has been acquitted in criminal proceeding and confiscation was not possible. A non-conviction based forfeiture proceeding would allow the recovery of the proceeds of crime. This should is not an attempt to "re-litigate" a proceeding, as this proceeding is not meant to establish a person's culpability or responsibility, but the origin of the assets themselves.

c)    There are also cases in which the defendant cannot be found within the jurisdiction because he has fled, because he is already imprisoned abroad or for any other reasons.

d)    The owner of the assets is uncertain. Money laundering usually follows the commission of an economic crime in order to conceal the origin of the assets. If the money laundering process was effective even the ownership can be difficult to prove. In these cases non-conviction based forfeiture becomes of special importance.

e)    The statute of limitations prevents the offence form being investigated. In countries stricken by corruption this is of special importance, as corrupt public officials tend to stay in office for several years.

UPDATE: A Good Practices Guide for Non-Conviction Based Asset Forfeiture has been completed by the World Bank/UNODC Stolen Asset Recovery Initiative (StAR). Please click here for more information.