Fraud is an increasingly common delinquency in our society, and therefore, it is highly important to have a procedure in place for the confiscation of assets as a way to restore criminal and civil justice.
When confiscation of assets is employed in a legal case, victims of fraud (or other criminal action) may be able to recover their stolen assets or may be provided financial compensation by the guilty party.
Asset forfeiture is also valuable to local economies or high crime areas, as this process helps to deter further crime from being committed and to prevent further damage to an individual or community property.
Below, we explain the definition of asset forfeiture and its importance to the criminal justice system.
What is Civil Asset Forfeiture?
Asset forfeiture, which is also referred to as asset confiscation, is the legally-ordered process of seizing assets, property, or money that has been associated with criminal activity.
The assets can include anything that was involved in the crime, either directly or indirectly, such as stolen goods or instruments involved in the actual crime. The confiscation of assets also extends to cash that may have been earned subsequent to the crime, for example, if the perpetrators sold the stolen property for a profit.
Once the confiscation of assets has been deemed the best course of action by a judge or other appropriate legal official, the assets in question are placed in the custody of the proper authorities until a final ruling comes from the proceedings of the court system.
Steps in the Asset Configuration Process
Legal teams must collaborate with the necessary government or local law enforcement officials to exercise due diligence in enabling effective asset forfeiture.
Below are the series of steps that must be undertaken in order to begin the comprehensive asset forfeiture process.
Identification of Assets
This important first step is to examine the suspected crime in question and seize any and all assets that are believed to have been involved in the criminal activity. The assets must then be identified, meticulously examined, and traced to their origin.
Freezing of Assets
After the assets are identified and traced, freezing of assets is employed as a preventative measure against tampering of evidence. The respective assets are placed in a temporary secured location so that they cannot be stolen or destroyed during the criminal proceedings.
Recovery of Assets
If the suspect is found guilty in the court’s final ruling, the victim of the crime will receive as much of the stolen property back as possible.
Although law officials will work to recover and return the original assets to the victim, it is quite possible that the stolen property has been sold or destroyed. In these cases, the victim may be entitled to financial compensation from the guilty party.
In some cases, it is possible that there will be no identified victim of the crime. Any assets recovered in these situations may be used to fund state crime prevention efforts or to provide financial relief to victims of other crimes.
Asset Forfeiture Classes
Next, we explain what are the types of asset forfeiture that exist:
Value-Based Asset Forfeiture
Often this method is utilized when the proceeds from the crime have already been used, such as in the case of stolen cash, or when the property has been hidden, sold, or destroyed.
The courts assign a monetary value to the profits or financial benefits that were assumed to be gained by the perpetrator as a result of the crime in question and use that estimated value in the asset confiscation orders.
Conviction-Based Asset Forfeiture
Conviction-based asset confiscation involves an ‘in personam’ order and implies the personal liability of a specific individual.
As this is a charge made against one person, the subsequent action is contingent upon a criminal trial and guilty conviction before confiscation of assets can be ordered.
Non-Conviction-Based Asset Forfeiture
This type of asset confiscation, also known as civil forfeiture, is not dependent on a guilty conviction, as it is defined as an action against the asset itself and is not associated with the actions of one particular person.
However, before confiscation is ordered, steps must still be taken to identify the asset and prove that it was associated with the crime in question.
This article provides further information about the types of crimes that typically result in some form of asset confiscation.
The Confiscation of Assets in Spain
For more information about asset forfeiture in Spain, contact our team of specialist lawyers.