COMPARATIVE CONFISCATION LAW BETWEEN AUSTRALIA AND KUWAIT 1
Assetconfiscation, otherwise known as asset seizure refers to the processof recovering assets through criminal means. It applies to thegovernment agencies tasked with the responsibility of ensuring thatall forms assets that might have been acquired through illegalactivities are seized through the right legal channels. Additionally,it is imperative to establish the appropriate mechanisms ofrecovering such assets to ensure that individuals who acquired theproperty through criminal processes such as fraud do not benefit inany way from the future sales of such property (Greenberg et al.,2009).
The processapplies to various forms of criminal activities including terroristactivities, criminal and civil offenses and drug-related crimes. Insome jurisdictions, however, the term forfeiture is prominent incomparison to confiscation. According to the relevant governmentalagencies charged with the seizure of property, the primary aim ofthis process is to acquire and retrieve assets acquired throughcriminal means or that which could have been sued to benefitindividuals engaged in illegal activities. This paper focuses on theconcept of asset recovery in Kuwait and Australia. It determineswhether the Non-conviction based asset forfeiture is the best way todeal with assets acquired through criminal practices by comparing toother procedures such as prosecutions and convictions of the suspects(Bartels, 2010).
In Australia, theconfiscation of assets has been given increased attention as a meansof reducing criminal activities that had become prevalent in thelatter stages of the 20th century. The Financial Action Task Forcehas the legal mandate of ensuring that all forms of property acquiredthrough fraudulent means and which could be used to benefit otherindividuals are confiscated and returned to the primary means throughthe right channels of law (Greenberg et al., 2009). Additionally, thetask force provides the recommendation to the international communityon ways through which money laundering and terrorism practices can becombated effectively. However, the task force has to work in tandemwith the United Nations Convention on Illicit Traffic in NarcoticDrugs and Psychotropic Substances. Other international conventionsthat apply to this practice include the United Nations Conventionsagainst Transnational Organized Crime (Bartels, 2010).
In a bid to tamethe increased expertise involved in the illegal acquisition ofassets, the Australian government ratified various conventionsincluding the United Nations Convention on Illicit Traffic inNarcotic Drugs and Psychotropic Substances, United Nations Conventionagainst Transnational Organized Crime and its Protocols in 2004, andthe United Nations Convention against Corruption in 2005 (Bartels,2010). The country also continues to put the necessary mechanisms inplace to ensure that it can effectively combat the highly complexnature of international crime.
Research hasindicated that the primary objectives of the confiscation assetregimes in Australia are based on two basics (Bartels, 2010). Thefirst aim is to reduce the access to funds by the criminals whichwould culminate in various benefits and encourage criminality acrossin the society. Therefore, the motivation for offending will havebeen substantially reduced (Greenberg et al., 2009). The act ofconfiscation also involves issuing of punishment to the crimecommitters and, therefore, reduce the influence they have within thecriminality circles. The second objective of asset seizure requiresis that it through the removal of funds obtained through criminalactivities, would eliminate the availability of such resources tofurther facilitate increased crime. They large-scale reformswitnessed in Australia have enabled the government agencies such asthe Financial Action Task Force (Bartels, 2010).
Currently, thereare two ways through which assets acquired through crime proceeds canbe recovered in Australia. The conviction-based recovery is one ofthe ways through which the process can be facilitated. Under thismethod, the assets are recovered after the conviction of such a crimehas been secured through the appropriate legal platforms (Bartels,2010). Additionally, the civil recovery platform, on the other hand,provides asset recovery through constraints and recovery of propertysuspected to have an association with criminal activities without theaction of necessarily acquiring the relevant criminal convictions. InAustralia, the Commonwealth Director of Public Prosecutions (CDPP) isthe governmental agencies charged with applying orders for seizuresof property that are deemed to have been acquired fraudulently and assuch should be ridden off before they can be used to perpetuatecriminal activities (Greenberg et al., 2009).
Proceeds of CrimeAct (2002)
The Proceeds ofCrime Act 2002 (Cth) (POCA 2002) was implemented in early 2003(Bartels, 2010). This is the instrument that has been used tofacilitate the recovery of property deemed to have been acquiredthrough criminal activities. For this implementation to proceedvarious reviews were done to the existing asset recovery programs andit was credited with the inclusion of the civil forfeiture. Underthis program, once goods have been recovered, they can be shared bythe respective jurisdictions and foreign nations that contributed tothe recovery program. To achieve this, the recovery process has tocomply with the equitable share program (Bartels, 2010).
Proceeds of Criminal Act 1987
This legislationwas the precursor to the Proceeds of Crime Act (2002). Thesignificant variation between the Cats established in 1987 and 2002was that the letter lacked the civil forfeiture clause inclusion(Bartels, 2010). It majorly focused on the restraints of assets whilethe criminal proceeds were ongoing. This was to prevent instanceswhere individuals under criminal proceedings would hide property thatcould facilitate their conviction. Under this Act, the final order ofrecovery would only be established after the conviction had beensecured. The Act is still in use in matters relating to legalproceedings that began before 2003 the year when the newlegislations were introduced in Australia (Bartels, 2010).
Customs Act 1901
This was one ofthe first legislations that formed the basis of recovery of assetsthat had been acquired through fraudulent means. According to thisAct, the recovery of property could only be made in cases related tonarcotics that contravened the legal tenets of the Act (Bartels,2010). Additionally this was the only existing legislation inAustralia before further amendments were made in 1979 that determinedthe pecuniary penalties in matters relating to narcotics. One greatbackdrop of this act is that it did not provide automatic seizure ofassets following the process of conviction (Bartels, 2010).
According to thedirector of public prosecution Act 1983, the CDPP was granted theability to pursue civil proceedings that could be used to pursuecivil liabilities relating to the Commonwealth liabilities. The civilremedies are commonly applied in the implementation of remediesfunctions relating to unpaid taxes, Medicare fraud, and the socialsecurity fraud. Other civil remedies that existed under the recoveryof assets plan is now under limited use following the establishmentof various laws (Bartels, 2010). As such, the Customs Act 1901 hasnot been employed since 2003-2203 when the new legislations werepassed following a review of different laws (Bartels, 2010).
Various conceptscan be used to analyze Non-Conviction Based (NCB) asset forfeiture.The first one demands the NCB is not used as an alternative to theprosecution of factors related to the illegal acquisition of property(Bartels, 2010). The argument towards this concept is that is the NCBis used as an alternative then the public confidence towards thecriminal law will be indented as will be the effectiveness ofcriminal law in ensuring that the legal requirements are meteffectively. Though the NCB is an effective means of asset recovery,it should only be used as an alternative to prosecution in instanceswhereby the jurisdiction lacks the ability to prosecute the violatorof the criminal activity. As such, those engaged in criminalactivities should not use the NCB as a means of avoiding prosecutionfor their actions (Greenberg et al., 2009).
According toarguments against the use of NCB as an alternative, it is believedthat by offering the criminals NCB and not prosecution, it will belike those engaged in fraudulent activities are being given a leewayand a choice to make with regards to which form of trial they desire(Bartels, 2010). Therefore, the NCB should be used as a complementaryto the process of criminal prosecutions and convictions. This can beachieved by employing it parallel to the proceedings or before theinitiation of the criminal proceedings against the perpetrators ofthe fraudulent activities of the society. Finally, the NCB should beexclusive to cases whereby the prosecution has determined it istechnically impossible to institute legal proceedings against theviolators. Furthermore, it should be set aside for instances wherebythe legal proceedings are deemed to have failed in the prosecution ofthe crime offender due to unavailability of prosecution (Greenberg etal., 2009).
The secondconcept demands that the relationship between an NCB asset forfeiturecase and other variables such as criminal proceedings should beeffectively defined (Bartels, 2010). The prosecution can be anongoing investigation to determine the nature of transactions thatwere reported over a given of the time and which relate to thefraudulent acquisition of property. This is important because theremight be collisions between NCB and other legal proceedings since theNCB asset forfeiture is triggered by criminal conducts. Therefore,legislations should provide precise and accurate means through whichthe desired objectives can be achieved (Greenberg et al., 2009).
Jurisdictionswill, therefore, need to establish whether the NCB processes will beinitiated in the absence of criminal prosecutions and forfeitureproceedings. Additionally, the administration can determine whetherthe NCB, legal proceedings, and forfeiture procedures should beimplemented simultaneously. In most instances, the simultaneousprocess is the most preferred method since it provides a variety ofoptions as well as the best mechanism to achieve the intendedobjectives. Additionally, the use of multiple alternatives ensuresthat the levels of risks of countersuits are limited in the long run(Greenberg et al., 2009).
The third conceptdictates that the NCB asset forfeiture should be used when thecriminal proceedings are unavailable or unsuccessful (Bartels, 2010).Criminal prosecution can be unavailable in case the property owner isunavailable for trial. As such, the concept of unavailability willexist in case the perpetrator is dead, enjoys immunity fromprosecution, and whether the accused has fled the jurisdiction.Allowing individuals who can forfeit prosecution would provide anincentive to would-be criminals (Bartels, 2010). As such, it isappropriate for the relevant authorities to determine the mostimportant factors as these are likely to culminate into an increasein the acquisition of assets based on the criminal activities. Eventhough the NCB is viewed as a complimentary to other alternatives,the courts inability to prosecute individuals should not be regardedas a means to ignore other legal actions that could be instituted torecover the necessary funds in the long run (Bartels, 2010).
Based on thejurisdiction, there is a likelihood of NCB asset forfeiture beingtriggered. In this regard, it is necessary to identify the nature oflegal statutes binding such processes. Other jurisdictions willdemand the forfeiture to proceed against an individual based on threemajor factors (Greenberg et al., 2009). The first instance is wherebyan individual has passed on, but the investigations into theunscrupulous acquisition of property had already commenced. Secondly,the forfeiture may progress in cases where the charges have been laidand finally when the death occurs following the announcement ofconviction. Moreover, no individual should be offered immunity forassets that have been acquired through criminal means.
The study hasfocused on the confiscation laws in Australia while also analyzingthe United Nations Conventions that apply to all member statesincluding Kuwait. The conviction and prosecution process in casesdealing with forfeiture of assets. From the analysis, it can beestablished that the non-conviction based asset forfeiture should notbe used independently in the acquisition of property. This is becauseit offers motivation for criminal activities and would perpetuatesuch activities if the violators were offered. From the aboveanalysis, it can be concluded that the NCB is only useful it is usedalongside other strategies such as conviction and prosecution of thevictims of crime. Additionally, the three strategies can beimplemented concurrently to facilitate the recovery of assets thathave been acquired through fraudulent means (Greenberg et al., 2009).
Bartels, L. (2010). A Review of Confiscation Schemes in Australia.Australian Institute of Criminology. Retrieved from:http://www.aic.gov.au/media_library/publications/tbp/tbp036/tbp036.pdf
Greenberg, T., Samuel, L., Grant, W., & Gray, L. (2009). StolenAsset Recovery: A Good Practices Guide for Non-Conviction Based AssetForfeiture. The International Bank for Reconstruction and Development/ The World Bank. Retrieved from:https://www.unodc.org/documents/corruption/Publications/StAR/StAR_Publication_-_Non-conviction-based_Asset_Forfeiture_E.pdf