Asset Forfeiture (Criminal)

A rationale for the asset recovery process is ultimately to either restore or compensate the victim of the criminal act and to deprive the criminal of the fruits of his crime.

The stages of asset forfeiture in the criminal process are firstly the need to identify and locate the assets from the crime; then, in order to preserve and maintain them, to have the ability to either seize, freeze or restrain them or the people in possession of them; next is the need for a criminal conviction to enable the process of confiscation to be undertaken to lead to the ultimate goal of confiscation/forfeiture.

One of the advantages of prosecuting an offender is that, once he is convicted, the State should be able to confiscate not only all of the proceeds of the offences for which he has been convicted, but also to empower the courts to make assumptions that deem all of a criminal’s property over a period of years to be the proceeds of crime. Therefore this property is also subject to confiscation, thereby depriving life-long criminals of all of their ill gotten gains.

This provision is illustrated in the case of Saccoccia v Austria. The case started in the US, where Saccoccia was convicted and his assets forfeited. Contest over forfeiture of assets held in Austria was finally heard by the European Court of Human Rights, which determined that forfeiture of property linked to criminal activities did not amount to disproportionate interference of property rights.