Asset Forfeiture

There are two main routes. In criminal forfeiture, the court orders the transfer after a conviction, usually against the defendant. In civil or non-conviction-based forfeiture, the case is brought against the property itself, known as an action in rem. The authority must show, on the civil standard of proof, often “balance of probabilities”, that the asset came from or was used in crime. The second route helps when the owner has died, fled or cannot be convicted, and it is also used for unexplained wealth. Safeguards include notice to owners, rights for third parties who acted in good faith and judicial review. Practice differs widely by country. Banks meet forfeiture through freezing and seizure orders and requests for records. A court can strip the gains of a crime even when no conviction is available, which prosecutors use against fugitives and unexplained wealth.

Police find that an apartment and a bank balance of 1.2 million belong to a public official who cannot explain his means and has left the country. Prosecutors cannot bring him to trial. They file a civil action against the assets, show that the funds trace back to bribes, and the court orders forfeiture to the state. The bank freezes the account in the meantime.