prosecutors in establishing these elements, whether for the offense or during the confiscation stage (see section 6.3 of chapter 6). A review of the challenges relating to different offenses should be conducted on a caseby-case basis. As an example, illicit enrichment may be easier to prove than bribery in the absence of written documentation of bribes and quid pro quo during the course of the preliminary investigation.58 On the other hand, if practitioners uncover such evidence, bribery will become the easier offense to prove—especially given that illicit enrichment still requires the prosecution to gather information on the lifestyle and assets of the defendant. 2.8.3 Inability to Obtain a Conviction In most jurisdictions, it is impossible to adjudicate a criminal case in the absence of the defendant, such as in cases of flight or death. In a few civil law jurisdictions, it may be possible to proceed with a criminal trial in absentia if the person is a fugitive. However, convictions in these cases may not be final because due process requires that court decisions be subject to appeal by the fugitive if he or she is apprehended. In addition, some confiscation laws contain absconding provisions that permit the law to continue to operate, even in the event of the flight or death of the defendant. If the defendant is a fugitive, authorities should consider obtaining extradition of the fugitive in the context of multilateral and bilateral conventions or the legislation of the jurisdiction to which the fugitive has fled (or both). Extradition can be a very long and frustrating process involving numerous court decisions and appeals to higher courts. In addition, if some of the criminal offenses that are the basis of the request are denied by the extraditing country, the specialty principle forces the requesting country to cease the investigation or prosecution of these offenses. Alternative options include filing a complaint with the foreign authorities (leading to criminal or NCB confiscation in the foreign jurisdiction) or initiating domestic NCB confiscation proceedings. If the defendant is deceased, authorities may consider a private civil action against the estate of the decedent (in domestic or foreign courts) or domestic or foreign NCB confiscation. The authorities may not have sufficient evidence to meet the standard of proof required to establish a conviction. In these circumstances, practitioners should explore whether there may be sufficient evidence to proceed through a private civil action or NCB confiscation (see section 2.6.5 above concerning standards of proof). 2.9 Implementing a Case Management System To increase efficiency, accountability, and transparency, it will be important that proper policies and procedures are in place to ensure that offenders are appropriately charged, 58. Note that prosecution for illicit enrichment may cause difficulties in meeting the dual criminality requirement for MLA in some jurisdictions. See section 7.4.2 of chapter 7 for additional information.
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Asset Recovery Handbook