Colombia, 19th June 1991: Pablo Escobar turns himself in, a few hours after a Constituent Assembly overturned the extradition of Colombian nationals. Seven years of terrorism and political murders perpetrated by the Medellin Cartel and “The Extraditables”, whose motto was “we prefer a tomb in Colombia, than a dungeon in the US”, were over. That day, Colombia knelt down to the narcos: with no extradition law, no money laundering legislation, no international judiciary cooperation and a level of corruption that had reached the highest instances of power.

However, the same Constituent Assembly introduced in the Political Charter article 34, which bans the criminal sanctions of exile, life-time sentences and confiscation, but allows the so called extinción de dominio, or extinction of property, for those assets deriving from illicit enrichment, in cases of embezzlement of public funds, or with serious harm to the social morals. The extinción de dominio, sought to be introduced by a State of Emergency decree in 1980 and then declared unconstitutional for violating the fundamental right of property, passed unnoticed on this occasion: it was sown like a seed that later developed into the strongest weapon of the Colombian Government against corruption and organised crime.

Still, many years had to go by before this constitutional provision, which changed the rules of the game for drug cartels and corrupted officials, could be implemented. In 1996, after the death of Pablo Escobar, the Colombian Congress approved the first law of extinción de dominio (law 333/1996) allowing the State to confiscate the proceeds of crime at any time – even after the death of the perpetrator – when there is unjustified disproportion between the value of the owned property and the feasible income of the owner. The immense fortunes of the traffickers started to fill the public coffers and criminals realised that the inclusion of this measure in the Political Charter was a fatal trap, for it hits them where it most hurts: the wallet!

The situation in Italy, in the eighties and early nineties, was not all that different. In fact, 1992 was a tragic year in the history of Italy. Giovanni Falcone and Paolo Borsellino, two criminal judges engaged in the anti-mafia war for more than twenty years were assassinated after having carried out the Maxi-Trial (1986-1992): the most important trial against the Sicilian mafia.

The peculiarity of this trial, where 474 mafiosi were indicted and 360 were convicted (including 19 life sentences to the mafia bosses), was the innovative approach of holding the mafia as an organisation responsible for its criminal activities instead of trying individuals for isolated crimes. This was possible thanks to the first Italian anti-mafia law of 1982, known as “Rognoni-Latorre law”, that criminalised the act of belonging to a mafia-type organisation. This law envisaged a “mandatory confiscation” for the assets directly linked to the crime, as well as a “preventive confiscation” for the property of the person affiliated to a criminal organisation in order to avoid its reuse in other criminal activities.

The latter was declared unconstitutional for contradicting the principle of presumption of innocence and Italy, like Colombia, remained without a comprehensive legal framework on forfeiture until 1992, when a new law (decree law 306/1992) established the “enlarged confiscation,” which allowed the judiciary to attack the proceeds of crime with the only proof of the affiliation of a person to a mafia-type organisation, or his/her “criminal lifestyle.” By shifting from prosecuting the criminals to prosecuting their assets, this law was the cornerstone for a more efficient confiscation system in Italy.

On the other side of the Atlantic, the United States was also setting up a legislative strategy against organised crime. Early in 1970, the Congress passed the equivalent of the Rognoni-Latorre law: the Racketeer Influenced and Corrupt Organisations Act, known as RICO Act, to inaugurate what President Nixon called the “war on drugs”. One of the penalties imposed by the RICO Act, was the mandatory confiscation of the proceeds of crime. This measure was the first forfeiture in personam (against the person) introduced in the U.S. after its prohibition in the late eighteenth century by the US Constitution and the abolition of criminal confiscation of estate as a punishment for federal crimes by the first US Congress in 1790.(1) Its purpose was to attack the illicit activities of the mafia by taking possession of the ill-gotten gains of criminals.

During the Reagan administration the Comprehensive Crime Control Act of 1984 amended RICO’s provisions on forfeiture, and a “civil forfeiture”, confiscation in rem (against the thing), was put into place. In 1986, the Mafia Commission Trial, the equivalent of the Italian Maxi-Trial, was carried out: eleven people, including the heads of New York’s so called “Five Families” of the Cosa Nostra, were indicted and sentenced to 100 years imprisonment – the maximum sentence available under the RICO Act. In the same year, the Assets Forfeiture Fund of the Department of Justice had an income of 93,7 million US dollars.

How is civil forfeiture different from the criminal confiscation?
There are three different kinds of federal forfeiture in the US: criminal forfeiture; civil judicial forfeiture and administrative forfeiture.

“Criminal forfeiture is an action brought as a part of the criminal prosecution of a defendant. It is an in personam (against the person) action and requires that the government indict (charge) the property used or derived from the crime along with the defendant. If the jury finds the property forfeitable, the court issues an order of forfeiture. Civil judicial forfeiture is an in rem (against the property) action brought in court against the property. The property is the defendant and no criminal charge against the owner is necessary. Administrative forfeiture is an in rem action that permits the federal seizing agency to forfeit the property without judicial involvement. The authority for a seizing agency to start an administrative forfeiture action is found in the Tariff Act of 1930. Property that can be administratively forfeited is: merchandise the importation of which is prohibited; a conveyance used to import, transport or store a controlled substance; a monetary instrument; or other property that does not exceed US 500.000 dollars in value.”(2)

Another difference between criminal and civil forfeiture is that the latter places the probative burden on the defendant. The onus probandi is inverted, so the persons claiming to be the legitimate owners of the “tainted assets” have to prove their licit source, otherwise the court concludes “on the balance of probabilities”(3) that the assets are directly or indirectly linked to a criminal activity. The consequence is that the property rights are extinguished and pass on to the local or federal state, from the moment when the property was used illegally and not from the moment when it was seized. The “relation-back” doctrine applies in the civil forfeiture whereas in criminal cases, only the assets belonging to the person, at the moment of the conviction, can be confiscated.(4)

How does civil forfeiture work in practice?
I asked Public Defence Attorney Bradley Fuller, a Drug Court expert active in Chicago.

“A common case might look like this”, he said. “A civilian is suspected of dealing drugs. The police conduct an investigation, including ‘controlled buys’ which are drug deals that are arranged by ‘snitches’ who are working for the police. Law enforcement officers will conduct surveillance of the controlled buy and record evidence of the criminal activity. The police will then often obtain a search and/or arrest warrant based on the evidence they have. The suspect is then arrested and charged with the crime of delivering a controlled substance. During the search and arrest, officers will seize instrumentalities of the crime such as scales, cell phones, ledgers and cash. Simultaneous to the criminal case, the state may also seize the vehicle of the suspect, which was used in a drug deal, and institute a civil forfeiture. While the defendant is entitled to a lawyer in the criminal case, there is no such entitlement to an attorney in the civil matter. Many defendants are obviously unable to retain private counsel and are thus at a huge disadvantage in the forfeiture case. The state’s burden of proof is much lower in the civil case. In fact, the state must only show by a preponderance of the evidence that the item seized was used in the commission of a crime. The burden shifts to the defendant to demonstrate that the item was not an instrumentality of crime, and they must try and do this without making statements or producing evidence that could jeopardise their criminal case – which can be very tricky.”

However, local and state law-enforcement agents can carry out civil forfeiture outside a criminal investigation and seize assets without any warrant simply on the basis of “suspicion”. Some practices, such as highway stops to seize cash from motorists, have been extremely controversial, especially after the “war on terror” was declared by president Bush in September 2001. Seizures of cash on highways skyrocketed, with only 1/6 being challenged, in part because of the high costs of legal action.

Property can also be forfeited through the “Equitable Sharing Program” of the Department of Justice’s Asset Forfeiture Fund created in 1984. Through this program assets that have been seized by local or state law enforcement authorities can be confiscated using federal laws, either because they are seized during a joint operation, or because the federal agency “adopts” the property. In those cases, 80% of the proceeds go back to the local or state law enforcement agencies and the remainder is kept by the federal government. This financial incentive for federal forfeiture has turned equitable sharing, particularly after the 9/11 terrorists attacks, into “a virtual cash cow” for local and state law enforcement agencies.(5)

To illustrate this phenomenon, the police chief of Columbia, Missouri, described civil forfeiture during a Police Review Board in 2012, as “pennies from heaven.”(6)

The increase in civil forfeiture since the creation of the Equitable Sharing Program and the consequential participation of local and state law enforcement agencies in civil forfeiture gains has been notorious, with proceeds going from 27 million dollars in 1985 to 556 million in 1993, and then soaring to 4.2 billion dollars in 2012.(7) The Civil Asset Forfeiture Reform Act (CAFRA) of 2000 broadened the Attorney General’s authority to restore forfeited assets to the victims of any offence that give rise to the forfeiture, including civil forfeiture. In 2002, the Department of Justice initiated a procedure called “restoration”, which allows the use of forfeited funds to pay restitution, namely, the equitable remedy for victims of any crime, as journalist Sarah Stillman of The New Yorker points out:

“The rise of civil forfeiture has, in some areas, proved to be of great value. It allows the government to extract swift penalties from white-collar criminals and offer restitution to victims of fraud. Since 2012, the Department of Justice has turned over more than 1,5 billion US dollars to 400,000 victims of crime, often in cases of corporate criminality.”

Federal agents have used forfeiture to hunt down migrant smugglers, environmental offenders and individuals taking advantage of highly lucrative illicit activities. It has also proved to be a powerful weapon when it comes to hitting proceeds of foreign corruption. An example is the Department of Justice action in 2014 against Teodoro Obiang, son of the President of Equatorial Guinea, that resulted in a settlement of its civil forfeiture case for 30 million dollars. This case was brought under the Kleptocracy Asset Recovery Initiative launched by a team of prosecutors of the Department of Justice working in partnership with federal law-enforcement agencies to forfeit the proceeds of foreign official corruption and return, when appropriate, those proceeds to the people harmed. In the Obiang case, 20 million U.S. dollars were given to a charitable organisation to be used by the people of Equatorial Guinea; 10.3 million are forfeited to the U.S. and will be used for the benefit of the people of Equatorial Guinea to the extent permitted by law.

In Italy, a “non-conviction-based” (NCB) confiscation became possible in 2008 with the law 92/2008. The legislature decided to create a “preventive measure” separated from the criminal procedure for a category of “socially dangerous” individuals. The 2011 Anti-mafia Code (law 159/2011) confirmed the application of the preventive measure for assets belonging to individuals that are usually dedicated to illicit trafficking, with a life-style depending totally or partially on criminal activities, posing a threat to the moral or physical integrity of minors and/or committing crimes against public health, security and tranquillity. The preventive measure can be carried out by various entities, such as the Public Prosecutor, the National Anti-mafia Prosecutor, the Director of the Investigative Division Anti-mafia and the Police Commissioner. The Anti-mafia Code foresees that the confiscated assets have a social function: they must be returned to the community and be administered by civil society.

Two different regimes coexist in Italy: the preventive measure (in rem) and the mandatory confiscation (in personam) which is still in place and, in order to be applied, there must be proof of the “social danger” posed by the defendant. The latter can also apply to corporations, as a criminal sanction and not as a preventive measure, and can be extended to the heirs of the convicted person within five years of his/her death (law 575/1965).

Is the double-track system working in Italy and how is the NCB confiscation perceived by civil society?
I asked Nicola Palmiero, a police officer of the Italian Asset Recovery Office and this is his statement:

“All in all, the double-track system works. There is information sharing between police offices for transnational cases and for asset recovery through the INTERPOL International Asset Recovery platform, Camden Assets Recovery Interagency Network (CARIN) and other regional and global initiatives. However, most of the national resources are used for the investigation and the conviction of criminals and much less is dedicated for asset recovery. Italian public opinion in general is in favour of NCB confiscation: it approves and encourages the measure, but it does not consider it a priority because it ignores how much is being done by the police in this sector. The greater involvement of civil society in the administration of the confiscated assets is generating a higher level of transparency and trust. It is true that there is still a lot to be done, but in the last years, thanks to the NCB confiscations, we have made great progress and we are among the countries in Europe with the highest figures for confiscations. Based on recent available statistics, I think Italy has one the most efficient asset recovery systems in Europe.”

In fact, the Italian confiscation system is considered a model to be followed in Europe where there is no harmonised legislation. Judicial cooperation for investigative matters is done through EUROJUST. Mutual cooperation works well when it comes to conviction-based confiscation, but NCB confiscation orders are still not recognised in all countries. The EU has accepted non-criminal confiscation procedures only in cases of tax evasion and has accepted the extended confiscation in cases of serious crimes like terrorism or in cases of gross disproportion between the assets declared and the assets owned. The European Court of Human Rights (ECHR) has also validated the enlarged confiscation to third persons and corporations.

A new Directive of the European Parliament and the European Council (dir. 2014/42/EU) accepts the NCB confiscations only in cases where a criminal procedure is not possible and as long as guarantees of a criminal trial are in place (protection of third bona fide persons, presumption of innocence, due process and notifications). The ECHR conceives confiscation only as a criminal sanction within a criminal procedure, and even if domestic laws consider in rem confiscation as civil, the principles and guarantees of criminal proceedings, such as the presumption of innocence and the prohibition of retroactivity, must prevail.

How does extinción de dominio work in Colombia?
Extinción de dominio is a Constitutional Action. It is not criminal, nor civil. It follows the principles of an in rem confiscation, but it is an autonomous action deriving directly from a provision of the Political Charter that guarantees private property in accordance with civil laws, but at the same time provides a strong limitation to this right (art. 58 of the Political Charter): property has a social function and therefore implies obligations, and it has an inherent ecological function. The State can therefore extinguish such right in two cases: if the property was not acquired according to the legal standards (its origin), or if the property is used in a way that causes serious harm to the social morals (its function). This includes crimes against public health, the economical and social order, the natural resources and the environment, public security, the public administration, the constitutional and legal regime and other crimes, such as kidnapping, extortion and pandering.

According to the Constitution, the declaration of extinción de dominio needs to be done through judiciary sentence or order. For many years, under the first extinción de dominio law, this role was assigned to criminal judges and could not be carried out simultaneously with a criminal procedure because of the principle of double jeopardy. This had greatly limited the practice’s efficiency. Law 793 of 2002 changed this: extinción de dominio became independent from a criminal procedure and the action was passed on to the General Prosecutor’s Office, which had enormous powers to investigate and no other judiciary controls to safeguard fundamental or subjective rights. This was highly criticised by human rights guardians, but the Constitutional Court expressed a favourable opinion of the special powers of the General Prosecutor’s Office in this matter, given the fact that the declaration of extinción de dominio is not a criminal procedure, bound to the principles of criminal law, but a completely autonomous constitutional action.

In 2014, the legislature codified extinción de dominio into one single law (law 1708/2014) that streamlined the procedure to make it less lengthy and further protect the rights of third bona fide persons. The assets from the extinción de dominio go to FRISCO (Fund for the Rehabilitation, Social Inversion and Fight against Organised Crime) and are allocated as follows: 25% for the judiciary branch, 25% for the General Prosecutor’s Office and 50% for the National Government. The new extinción de dominio code has created a special jurisdiction with specialised prosecutors and judges. This special jurisdiction will play an important role in the transitional justice process that the country is currently undergoing.

“The Colombian model of extinción de dominio has been exported and replicated by most Latin American countries from the Rio Grande river to Patagonia, thanks to UNODC’s technical assistance and the Stolen Asset Recovery initiative (STAR) done in partnership with the World Bank”, explained Wilson Martínez Director of the Money Laundering and Extinción de dominio Observatory of Nuestra Señora del Rosario University and author of many books and articles on this topic. Martínez himself has led the campaign with UNODC across Latin America proposing the Colombian model to the neighbouring countries. “Colombian extinción de dominio is a very refined product: the fruit of twenty years of experience” he said. The homogenisation of domestic legislation on this crucial matter has allowed inter-regional cooperation through the creation in 2000 of the Financial Action Group of Latin America (GAFILAT) and its Network System of Asset Recovery (RRAG) to combat money laundering and the financing of terrorism.

Is international cooperation in confiscation matters working?
In the international arena, when it comes to the recovery of illicit assets there are important networks that play an important role, such as CARIN, as well as regional networks for asset recovery: the Regional Asset Recovery Network of GAFILAT (RRAG), the Asset Recovery Interagency Network Asia Pacific (ARIN-AP), the Asset Recovery Interagency Network for West Africa (ARINWA) and the Asset Recovery Inter-agency Network for Southern Africa (ARIN-SA). However, there is still a long way to go considering that less than 1% (around 0.2%) of global illicit financial flows are currently seized and frozen(8), only 2.2% of the estimated proceeds of crime were provisionally seized or frozen in the EU (annual value estimated to 2.4 billion euro) and only 1,1% of criminal profits in the EU were ultimately confiscated.(9)

Is there an ideal model of confiscation?
There is no flawless asset recovery system. However, countries like Colombia and Italy have developed precious know-how and highly sophisticated legislation that can inspire other countries when choosing their own. The last figures of the Fund for the Rehabilitation, Social Inversion and Fight against Organised Crime show an equivalent of half a million U.S. dollars in assets (after extinción de dominio sentence) and about 1,5 million U.S. dollars in liabilities (pending extinción de dominio sentence).(10) Colombia is currently working on rationalising the extinción de dominio framework which means applying it to macro-crime to avoid the overload of cases with minor impact on the illicit economy and the exhaustion of the judiciary system which had occurred in the past. Colombia is also introducing the principle of pro-activity instead of reactivity, understood as “investigating to seize instead of seizing to investigate.” The new extinción de dominio code lays strong emphasis upon the protection of third bona fide persons to avoid abuses of the kind committed in the past.

With regards to Italy, some impressive figures show that the double-track confiscation system works. In fact, in 2014 and in 2015 confiscations amounted to 1,5 billion euros. In October 2017, the Anti-Mafia code has been reformed to speed up the NCB confiscation procedure and enlarge its range, strengthen the protection to the rights of third parties and make the administration of seized and confiscated assets more efficient and transparent. Having those ends in mind, the reform has introduced specialised sections dealing with preventive measures at lower and higher courts; it has extended the cases of mandatory confiscation and the crimes that lead to liability of corporations; it has restructured the public agency for asset management (ANSBC), and, most important, it has included preventive measures for suspects of terrorism, stalking and crimes against the public administration such as corruption, extortion, embezzlement and influence peddling. Such reform, that stemmed from a civil society initiative, entails a major coup against government white-collar criminals.

Finally, the U.S. model of civil forfeiture has proved to be very effective in intercepting organised crime and corruption proceeds. However, the dependence of police departments on forfeited assets and cash for their regular functioning, and the full discretional powers given to police officers to apply the measure have led, according to many scholars and journalists, to excessive use of civil forfeiture and, therefore, to abuses against the fundamental rights of property and a fair trial.

The challenge lying ahead for any State claiming to be under the Rule of Law is: how to find a balance between the State’s “super-powers” needed to crackdown on crime and the protection of human rights. States and the international community need to respond to the urgent boiling matters pressing them in the area of local and/or global threats to peace and security. However, they should find the ways to do it without creating new systems of despotism and tyranny which turn against the citizens that they ought to protect.

Is it possible to achieve a balance between law enforcement and human rights protection?
James Shaw, Senior Legal Officer for Asset Recovery, with the United Nations Interregional Crime and Justice Research Institute (UNICRI) believes it is possible to achieve that fine equilibrium through a holistic approach.

The United Nations in general, and most particularly UNICRI, follows what stated in the UN Convention against transnational organized crime, art. 12 on confiscation and seizure: “States may consider the possibility of requiring that an offender demonstrate the lawful origin of alleged proceeds of crime or other property liable to confiscation to the extent that such a requirement is consistent with the principles of their domestic law and with the nature of the judicial and other proceedings. The provisions of this article shall not be construed to prejudice of the rights of bona fide third parties” (paragraphs 7 and 8).

“UNICRI promotes a balanced approach”, stated Mr. Shaw. “Through our various projects, we encourage all States to adopt, where possible, a mechanism allowing for NCB forfeiture of assets outside of the lengthy and cumbersom e criminal process; at the same time, we motivate them to protect due process and bona fide third party rights through appropriate legislation and procedures. Given that it is an in rem action, which would not allow the court to deprive anyone of their liberty, the burden of proof can still be lower than in a criminal trial, so the State may show that the assets, more likely than not, have an illicit origin. This holistic approach has proven, in Colombia, Italy and in a number of other countries, to be the right formula to fight crime and avoid abuses that would pervert the system characterised as ‘pennies from heaven’.”

The author
Dilia Marcela Ortiz Fonseca was born in Colombia in 1969. She studied Law in Bogota at the University of Nuestra Señora del Rosario and graduated in 1993.
She was active as a lawyer in Colombia in the oil private sector and then specialised in International Relations and Diplomacy at the Vienna Diplomatic Academy.
From the year 1996 to 2000, Mrs. Ortiz Fonseca worked at UNODC as an Associate Expert in the field of drug control. She is the author of “Des-Nudos”, 2008, and “Calle 14 Tras las Huellas del Homo Amans”, 2013.

References

1. Act of April 30 1970. Chasing Criminal Money: Challenges and Perspectives On Asset Recovery in the EU, edited by Katalin Ligeti, Michele Simonato, 2017.
2.  A Guide to Equitable Sharing of Federally Forfeited Property for State and Local Law Enforcement Agencies, U.S. Department of Justice, March 1994.
3. A lower standard of evidence used in civil cases, as opposed to the criminal standard of proof: “beyond reasonable doubt.”
4. Suppressing Terrorist Financing and Money Laundering, Jae-myong Koh, 2006.
5. According to criminal justice scholars Gregory M. Vecchi, Robert T. Sigler, (2001), Economic factors in drug law enforcement decisions, cited in Policing for Profit: The Abuse of Civil Asset Forfeiture, Dick M. Carpenter II, Ph.D., Lisa Knepper, Angela C. Erickson and Jennifer McDonald, with contributions from Wesley Hottot and Keith Diggs. Institute for Justice, 2017.
6. Civil Forfeiture: Last Week Tonight with John Oliver, HBO, 2014.
7. Taken, Sarah Stillman, the New Yorker, August 12, 2013.
8. UNODC Estimating Illicit Financial Flows Resulting from Drug Trafficking and other Transnational Organised Crimes, 2011.
9. EUROPOL Criminal Asset Recovery in the EU. Survey of Statistical Information 2010-2014.
10.  FRISCO financial statements 2014-2015.