Domestic NCB asset forfeiture systems benefi t from legislated evidentiary and pro-cedural rules that are specifi c and well defi ned. Such specifi city promotes uniformity
53. Certain sanctions may present problems for international cooperation with some jurisdictions, particularly where sanctions would bar due process.
54. See Director of the Assets Recovery Agency v. T and others, (2004) EWHC 3340 (United Kingdom) (acquittal on money laundering for disclosure reasons does not bar NCB asset forfeiture of the funds);
National Director of Public Prosecutions v. Prophet, [2006] ZACC 17 (acquittal on drug traffi cking charges does not bar NCB asset forfeiture of the residence); United States v. One Assortment of 89 Fire-arms, 465 U.S. 354, 361–62 (1984) (acquittal on criminal fi rearms violation does not bar NCB asset forfeiture of the guns); One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 234–35 (1972) (ac-quittal on criminal smuggling charge does not bar later NCB asset forfeiture of the smuggled items).
For specifi c legislative examples, see Proceeds of Crime Act 2002 (Australia), Section 51; Prevention of Organised Crime Act (Am) 1998 (South Africa), Section 50(4); and the Civil Remedies Act 2001 (Ontario, Canada), Section 17(2), “In proceedings under this Act, an offense may be found to have been committed even if, (a) no person has been charged with the offense; or (b) a person was charged with the offense but the charge was withdrawn or stayed or the person was acquitted of the charge.”
55. See Assets Recovery Agency v. Woodstock, [2006] EWCA Civ 741 (United Kingdom) (lack of evi-dence to proceed criminally—after key witness recanted—did not bar NCB asset forfeiture).
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Stolen Asset Recovery: A Good Practices Guide for Non-Conviction Based Asset Forfeiture
in application and reduces the opportunity for judicially imposed rules that could be inconsistent with the intent of the legislation. While it is important to have a statute that is suffi ciently fl exible to evolve with changing times, a statute with only broad principles, rather than specifi c provisions and defi nitions, invites the court to complete the work of the legislature and may produce rules far more inhospitable to forfeiture than contemplated by the legislature or parliament. This is particularly problematic in regimes with a judiciary inexperienced in forfeiture and in situations in which cor-ruption has permeated the administration of justice. The result is often a body of case law that develops inconsistency over time and creates uncertainty for prosecutors and citizens alike. This uncertainty and unpredictability becomes a disincentive for pros-ecutors to use such laws.
Laws, administrative rules, and rules of procedure should typically cover the following:
■ Investigations, including methods for obtaining evidence
■ Tracing required by the government to substantiate its case
■ Restraint and seizure of assets, including the duration of restraints and seizures and the ability to seek judicially approved extensions of time
■ Forfeiture, including
• Requirements for the factual and legal basis for ordering forfeiture
• Parties with standing, third party interests, status of fugitives (that is, fugitive disentitlement), decedents, and offi cials with immunity
• Parties entitled to notice and how it is to be effected
• Time limits for fi ling56 and responding to forfeiture actions
• Rules, if any, protecting against self-incrimination in criminal proceedings based on interviews conducted for NCB proceedings
• Applicable defenses
• Admissibility of evidence (for example, hearsay and summary documents)
• The ability to request the court to dispose of one or more of the claims in favor of the moving party without need for further trial proceedings
• Requirements for written reasons for judgment specifying factual and legal basis, which should also be a public document
• Whether payment in lieu of forfeiture is permitted
• Whether property representing the original property is recoverable (substitute assets)
■ Asset management
■ International cooperation, including whether dual criminality57 is required for
56. Many jurisdictions have a prescribed time limit for initiating forfeiture proceedings following a seizure, in addition to a statute of limitations for forfeiture.
57. The current practice, and requirement under UNCAC, Article 43, is that dual criminality will be ful-fi lled if the conduct underlying the offense is a criminal offense in both jurisdictions. It is to be fulful-fi lled irrespective of whether the same terminology or category of offense is used in both jurisdictions.
Prime Imperatives
international cooperation, and the extraterritorial effect of a restraint and recov-ery order (or fi nal order)
In drafting the law, jurisdictions should consider whether existing procedures are applicable and can be incorporated or whether new procedures need to be created. If new procedures are needed, jurisdictions must determine whether those provisions should be set out in the substantive law or promulgated as regulations, an administra-tive code, or rules of court. If new procedures are enacted, some jurisdictions will also reference an existing code of procedure that is to be used in the event that the NCB law does not provide suffi cient procedural direction on an issue.58
Many jurisdictions publish a legislative history or explanatory notes59 to accompany new laws to clarify the intent of the legislature and aid courts when interpreting the law. Not only is it an extremely important measure for uniformity in applying the law, but it is also very useful for transparency and accountability purposes. This practice should be useful when enacting NCB asset forfeiture laws, especially if the country has no prior history of such laws.
In addition and where permitted by law, a country may wish to promulgate regula-tions or administrative rules of practice to supplement the NCB legislation,60 so long as the administrative rules do not confl ict with other legislation or expand NCB leg-islation. Such administrative rules or regulations would require enabling legislation that delegates to the executive branch (or other competent authority) the authority to promulgate the administrative rules or regulations. This can be a particularly effi cient method of specifying many of the procedural and technical aspects of an NCB asset forfeiture scheme without requiring the legislature to expend time on the details of the scheme. For example, the administrative rules may provide for how seized property is maintained, the procedures for giving notice of the forfeiture action to interested par-ties, or how claimants may seek non-judicial relief from forfeiture such as through a petition for mitigation if the legislation allows. In other jurisdictions these issues may need to be determined by legislation. An important benefi t of administrative rules is
58. Law 9284 of 2004 on Preventing and Striking at Organized Crime (Albania), Article 4(3) states,
“The investigations and trials according to this law are supported in the civil and administrative pro-cedural rules in force, in addition to those contemplated and specifi cally referred to in this law.” The Anti-Money Laundering Act 1999 (Thailand), Sections 56 and 57, provide that the Civil Procedure Code applies in the absence of rules, procedures, and conditions prescribed in the Ministerial Regula-tions or Anti-Money Laundering Board RegulaRegula-tions.
59. See, for example, “Explanatory Memorandum to the Proceeds of Crime Act 2002 (Legal Expenses in Civil Recovery Proceedings) Regulations 2005 (2005 No. 3382) (United Kingdom)” in CD-ROM appendix N.
60. While administrative rules are not the equivalent of legislation, they can prescribe procedures to implement the law. Colombia has administrative procedures to supplement the NCB asset forfeiture legislation, which include regulation of matters related to asset management. See also “Administrative Procedures in Colombia: Good Practices in Delegation to the Executive Branch” in part C.
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Stolen Asset Recovery: A Good Practices Guide for Non-Conviction Based Asset Forfeiture
that they can be revised at any time without judicial or legislative intervention. Legis-latures are often slow to revise forfeiture laws, but administrative rules permit timely updates to address changing needs of a forfeiture program. Any administrative rules and the enabling legislation should provide that a breach of the administrative rule may not create enforceable rights or affect the validity of the forfeiture. In addition, it is important to note that such administrative rules or regulations are supplementary and are not to be used to override primary legislation.