THE DUTY OF UTMOST GOOD FAITH IN ASSET-FORFEITURE JURISPRUDENCE – SOME LESSONS TO LEARN

The Constitutional Court has held that the provisions of the Prevention of Organised Crime Act 121 of 1998 that empower the State to apply ex parte for restraint and preservation orders regarding property involved in criminal activities do not per se violate the requirements of the audi alteram partem rule. However, the State still has to adhere to the normal procedural and other obligations imposed on applicants approaching courts for orders on an ex parte basis; one of these obligations is the duty of utmost good faith or uberrima fides. This article examines the application of this rule by SA courts. As respondents are diligent in seeking instances of nondisclosure of relevant information to warrant the application of the uberrima fides rule to their advantage, a high degree of openness and good faith is required from the State in order to avoid these ex parte orders being rescinded or discharged

Public policies against criminal assets in mexico: challenges and opportunities from the north border states

Given its vast border with the United States, Mexico is a strategic trade and economic development region, which creates significant challenges in combating crime and violence. In recent years, Mexico´s federal and state governments have focused their efforts on the development of strategies to combat and weaken the criminal structures operating in the country by using legal instruments such as seizure, abandonment, and extinction of domain. This study seeks to identify the challenges faced by the states of Baja California, Chihuahua, Coahuila, Nuevo Leon, Sonora, and Tamaulipas in their efforts to combat crime through the collection of primary and secondary data and interviews with key actors. Mexico faces major challenges in the development of public policies to fortify the legal precepts of extinction of domain, in addition to fostering institutional links with the Financial and Patrimonial Intelligence Units of Mexico's northern Border States. There are few studies about subnational efforts for asset forfeiture as a policy instrument against criminal elements in developing countries. The Mexican case presents important subnational efforts to improve security strategies that may provide guidance for other subnational governments or regions that may be facing similar challenges or are pursuing parallel initiatives.

PERAMPASAN ASET HASIL TINDAK PIDANA KORUPSI TANPA PEMIDANAAN (NON-CONVICTION BASED ASSET FORFEITURE) BERDASARKAN HUKUM INDONESIA DAN UNITED NATIONS CONVENTION AGAINST CORRUPTION (UNCAC)

Asset forfeiture is a solution to the problem asset forfeiture when a person cannot be criminally prosecuted on the grounds of death or cannot follow the criminal prosecution process as referred to in Article 77 and Article 83 of the Criminal Code of Indonesia. NCB Asset Forfeiture wants the seizure of assets resulting from corruption crimes without having to wait for a criminal verdict and is an alternative if a corruptor can’t criminally prosecuted. The regulation of asset seizure resulting from corruption by mechanism without criminalization in Indonesian law is stipulated in Article 32, Article 33, Article 34, and Article 38C of the Law of the Republic of Indonesia Number 20 of 2001 concerning Amendments to Law No. 31 of 1999 concerning the Eradication of Corruption Crimes while the arrangement of asset forfeiture resulting from corruption crimes by mechanism without criminalization to UNCAC is stipulated in Article 54 chapter (1) letter c UNCAC. The application of NCB Asset Forfeiture in Indonesia in addition to being implemented based on the Law on the Eradication of Corruption Crimes, the State Attorney must be able to prove there has been a real loss of state finances, financial losses of the country due to corruption crimes and there are guarantees from corruptors to facilitate the application of asset seizures resulting from corruption without criminalization. Keywords: Asset Forfeiture, Proceeds of Corruption, Without Criminalization, United Nations Convention Against Corruption.

Criminal Asset Forfeiture as a Political Tool?

When do U.S. Attorneys use their powers to seize the assets of criminal defendants? After introducing federal criminal asset forfeiture, the chapter details the close connection between criminal forfeiture and prosecutors’ political motivations by tracing the evolution of forfeiture policy in federal laws and Supreme Court opinions. To examine how presidential and congressional signals affect prosecutors’ decisions in this domain, we analyze criminal forfeitures in 89 federal districts from 1996 to 2013. As was the case with other prosecutorial decisions, our results indicate that criminal forfeiture serves as another important way that U.S. Attorneys respond to political signals from political superiors on the importance of prioritizing the fight of federal crime. We conclude by comparing criminal forfeitures to civil asset forfeitures, suggesting that federal prosecutors and the DOJ have largely replaced controversy-prone civil asset forfeitures with their less controversial cousin.

The Politics of Federal Prosecution

Federal prosecutors have immense power and discretion to decide when to bring criminal charges, what plea bargains to offer, and how to implement the federal government’s legal priorities in their districts. While U.S. Attorneys take pains to emphasize their independence, we know relatively little about the extent to which politics colors federal prosecutorial staffing and decision-making. The Politics of Federal Prosecution draws upon a wealth of data from 1990s to the present to examine the interplay of political factors and federal prosecution. First, the authors find that congressional and presidential politics affect who becomes federal prosecutors and how long those individuals serve. Second, the book demonstrates that signals of presidential and congressional preferences, along with local priorities, affect key prosecutorial decisions: whether to bring prosecutions, how to approach plea bargaining negotiations, and when to utilize criminal asset forfeiture to cripple criminal activities. In short, the book demonstrates that politics affects the behavior of U.S. Attorneys at nearly every stage of their service.

A New Panel Dataset for Studies Using Substate Units of Analysis and Indicators of Drug Activity

This research note reports on the creation of a new panel dataset using multiple waves of substate estimates from the National Survey on Drug Use and Health. It also provides identifying information that contains state, place, and/or agency codes for merging additional datasets at levels below the state. The process for creating this dataset and for merging external data is described. This research note ends by providing an example analysis utilizing the panel dataset in combination with law enforcement personnel data from the Federal Bureau of Investigation and forfeiture data from municipalities in Minnesota to analyze the relationship between civil asset forfeiture and crime.

Tax Violation in Panama Papers

The aim of this research is to find out the relationship between the Panama Papers and the existence of criminal actions in Taxation. The Panama Papers is the name for a document that was created by a company from Panama called Mossack Fonseca, which contains detailed information on more than 214,000 overseas companies, including the identities of their shareholders and directors. This case is an international scale leak of financial documents that reveals how 12 heads of state have a company in an undisclosed tax free jurisdiction (offshore). This leaked document was then distributed to and analyzed by approximately 400 journalists in 107 media organizations in more than 80 states. The research conclusions show that the disclosure of the Panama Papers scandal proves clearly that tax which is mandatory and binding is considered a serious burden for the upper class that is involved in this case. Millions of secret financial documents were leaked and revealed how the corruption and tax crime network of heads of state, secret agents, celebrities to fugitives are hidden in tax haven. The scandal that was revealed would have caused the State to lose or reduce the state's wealth (asset forfeiture) which was quite significant. And the relationship between the case and the violation of tax law is that the mistake is deliberate or the mistake is fraudulent.

Optimalisasi Peran Bantuan Hukum Timbal Balik dalam Pengembalian Aset Hasil Tindak Pidana Korupsi

One of the unresolved legal issues in Indonesia is corruption. The problem of law enforcement is not yet optimal so that the assets resulting from criminal acts of corruption which are often in excess of national territory make it difficult to return. Mutual Legal Assistance in Criminal Matters, abbreviated as MLA, which is expected to help law enforcement is not yet optimal. Indonesia, as a participant country of the United Nations Convention Againts Corruption (UNCAC), does not yet have a regulatory framework that comprehensively regulates the aspects recommended by the convention. This study aims to find out about efforts and mechanisms to optimize the role of MLA in the recovery of assets resulting from criminal acts of corruption in Indonesia, especially those abroad. This research is a normative juridical research conducted by library research and interviews with informants related to the legislation and comparison approach. This article concludes that optimizing the role of MLA requires several steps such as implementing MLA in a more detailed technical format, optimizing the role of law enforcement as the implementer and adopting the concept of Non-Conviction Based Asset Forfeiture (NCB). Abstrak Salah satu persoalan hukum yang belum terselesaikan di Indonesia adalah korupsi. Masalah belum optimalnya penegakan hukum hingga aset hasil tindak pidana korupsi yang seringkali berada melampaui batas wilayah negara sehingga menyulitkan pengembalianya acapkali menjadi persoalan tersendiri. Pelaksanaan kerjasama Bantuan Hukum Timbal Balik (Mutual Legal Assistance) disingkat MLA yang diharapkan membantu penegak hukum pun dirasa belum optimal. Sebagai negara peserta United Nations Convention Againts Corruption (UNCAC), Indonesia belum memiliki kerangka regulasi yang mengatur secara komprehensif aspek-aspek yang direkomendasikan konvensi tersebut. Penelitian ini bertujuan untuk mengetahui tentang upaya dan mekanisme optimalisasi peran MLA dalam pengembalian aset hasil tindak pidana korupsi di Indonesia terutama yang berada di luar negeri. Artikel ini merupakan hasil penelitian yuridis normatif yang dilakukan dengan cara studi kepustakaan dan wawancara terhadap narasumber terkait, dengan pendekatan perundang-undangan dan perbandingan. Artikel ini menyimpulkan bahwa untuk optimalisasi peran MLA diperlukan beberapa langkah seperti menerapkan MLA dalam format teknis yang lebih detail, optimalisasi peran penegak hukum sebagai pelaksananya, dan adopsi konsep Non-Conviction Based Asset Forfeiture (NCB) sebagai muatan substansi MLA.

Guilty Things

What kind of legal history might account for the unique and continued practice of forfeiture in the United States? Law enforcement, as many recent writers have argued, has grown increasingly dependent on this fail-safe way to gain revenue, since civil asset forfeiture has few procedural safeguards. Unlike criminal forfeiture (in personam), civil forfeiture generally proceeds against the offending property (in rem), not against the person. A piece of property does not have the rights of a person; so, instead of proving crime beyond “a reasonable doubt,” suspicion equal to “probable cause” is enough. Your property is guilty until you prove it innocent. With civil forfeiture, owners do not have to be charged with a crime, let alone be convicted, to lose homes, cars, cash—or dogs. This effort to sharpen our understanding of dispossession is preeminently a legal project. It takes its meaning and garners its effects from the division between value and disregard, things and persons, human and nonhuman. In analyzing how legal reasoning has historically contributed to literal expropriation, I examine the generally invisible nexus of animality, human marginalization, and juridical authority.