Stolen Asset Recovery: A Good Practices Guide for Non-Conviction Based Asset Forfeiture
27. Any mechanisms the investigating magistrate or the prosecutor is entitled to take in a criminal procedure (among them search and seizure warrants). 28. The Act on Mutual Legal Assistance in Criminal Matters, B.E. 2535 (1992)(Thailand). 29. Production orders, disclosure orders, account monitoring orders, customer information orders, and also potentially search and seizure warrants. 30. Law 793 of 2002 (Colombia), Article 12: “The prosecutor may order preventive measures or request the same of the judge assigned to the case, as appropriate. Such measures may include the suspension of rights to dispose of the property, the seizure or freeze of the property, money on deposit in the financial system, asset titles, and the fruits thereof, as well as the order to not pay for said property when their physical seizure is impossible. The National Drug Enforcement Directorate shall act as the guardian or the depository for the property involved or frozen in any case.” 31. The Forfeiture of Money, etc in Civil Proceedings (Bailiwick of Guernsey) Law 2007, Section 10. 32. Prohibition on Money Laundering Law (2000) (Israel), Section 23, applies restraint sections from the Dangerous Drugs Ordinance (Sections 36F(a) and (b)). 33. Pursuant to R.A. 9160, as amended (Philippines), Section 10, the Court of Appeals may issue an ex parte freeze order, effective for 20 days, which may be extended: Section 10. Freezing of Monetary Instrument or Property. The Court of Appeals, upon application ex parte by the AMLC and after determination that probable cause exists that any monetary instrument or property is in any way related to an unlawful activity as defined in Section 3(i) hereof, may issue a freeze order which shall be effective immediately. The freeze order shall be for a period of twenty (20) days unless extended by the court. Section 53(b) of the Rules on Civil Forfeiture (Philippines) prescribes a 6-month limit for the freeze order: “On motion of the petitioner filed before the expiration of twenty days from issuance of a freeze order, the court may for good cause extend its effectivity for a period not exceeding six (6) months.” 34. See Anti-Money Laundering Act 1999 (Thailand), Sections 34, 35, 36, 48. 35. Property freezing order, property freezing order and management receiver, interim receiving order. 36. Proceeds of Crime Act (Australia), Section 319. 37. Law 793 of 2002 (Colombia), Article 7: “The forfeiture action shall be conducted exclusively in accordance with this law and, only in the cases not set forth in this statute, the Code of Criminal Procedure or the Code of Civil Procedure, in that order. Under no circumstances may a lateral decision be made to impede the ruling, nor may the grouping of cases be demanded. Once the case file has been considered by the court, that case shall have primacy over any other cases underway in the matter, with the exception of those cases involving the resolution of the legal status of an individual under arrest.” 38. Arguably yes, but it is likely to raise very serious practical and legal problems because of the evidential requirements in a criminal prosecution. 39. The Rule of Procedure in Cases of Civil Forfeiture (A.M. No. 05-11-04-SC) (Philippines), Sections 27 and 28, provide 27. No prior charge, pendency or conviction necessary. No prior criminal charge, pendency of or conviction for an unlawful activity or money laundering offense is necessary for the commencement or the resolution of a petition for civil forfeiture. 28. Precedence of proceedings. Any criminal case relating to an unlawful activity shall be given precedence over the prosecution of any offense or violation under Republic Act No. 9160, as amended, without prejudice to the filing of a separate petition for civil forfeiture or the issuance of an asset preservation order or a freeze order. Such civil action shall proceed independently of the criminal prosecution. 40. Prevention of Organised Crime Act (Am) 1998 (South Africa), Section 50. 41. Anti-Money Laundering Act 1999 (Thailand), Section 58, provides, “Where the asset involved in the commission of an offense is subject to another legal process which has not yet commenced or is pending or if it would be more effective to proceed under this Act, then the Government shall proceed as provided in this Act.” 42. Any NCB asset forfeiture application proceeds together with the criminal investigation and proceedings. If assets linked to the offense are discovered during an investigation, they will be restrained. If criminal proceedings do not proceed (for example, the offender has fled the jurisdiction), there will be an NCB asset forfeiture once it is established that there has been an offense and that the assets are linked to the offense. 43. Currently non-conviction based asset forfeiture may not run in parallel to criminal proceedings where they relate substantively to the same assets or criminality. The circumstances in which criminal and NCB asset forfeiture proceedings and investigations may run in parallel are beyond the scope of this guide. Interested foreign jurisdictions should contact the relevant U.K. law enforcement agency or the U.K. Home Office. 44. Proceeds of Crime Act (Australia), Section 80, 14(a). 45. The Forfeiture of Money, etc in Civil Proceedings (Bailiwick of Guernsey) Law 2007, Part V, Section 49. 46. This applies to most cases, although there are exceptions where a conviction is required. 47. Code of Criminal Procedure (Liechtenstein), Section 356: “If there are sufficient grounds for the assumption that the preconditions for absorption of enrichment (Section 20 StGB [Strafgesetzbuch, or Penal Code]), forfeiture (Section 20b StGB), or confiscation (§ 26 StGB) are given, without the possibility of deciding thereon in criminal proceedings or in proceedings aimed at placement in one of the institutions referred to in Sections 21 to 23 StGB, then the public prosecutor shall file a separate application for the issue of such a financial order.”
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