21 July 1997
Source: http://www.oecd.org/fatf/appendix.htm

FATF-VIII APPENDIX 1 to ANNEX B

Characteristics of National Legal Systems for Confiscation

Explanation

Year: -The year of enactment of the confiscation legislation or the last major amendment

Drugs or Serious Crime: - Does the legislation apply only to drugs or to all serious crime

Property or value: - Does the confiscation law principally confiscate items of property (Property) or does it provide that the person pay a sum of money (Value) [principal and most used method is in bold type]

Conviction required: - Is a conviction required before confiscation can be sought, or is it possible to confiscate without a conviction (either in a wide or limited range of cases)

Reverse burden of proof: - Is it mandatory or discretionary for the court to reverse the burden of proof so that the defendant or owner of the property to be confiscated must prove that the property (or the alleged benefit from the crime in a value system) is not acquired from crime

Proceeds must be linked to conviction: - Does the confiscation law allow a person to be deprived only of the proceeds of crimes for which he is convicted?

Third party property: - Many countries prosecute an accomplice or associate of the defendant who commits the predicate offence, but criminal defendants are not included as "third parties" in this annex. This column sets out three categories of situation (this is not an exhaustive list) where property which is owned or held by third parties can be confiscated or made subject to the confiscation order.

(i) gift - property is given to the 3rd party by the defendant for little or no real consideration;

(ii) knowledge - if the 3rd party knew, believed, suspected, could not ignore etc., that the property was the proceeds of crime;

(iii) effective control - the defendant still effectively controlled the property at the time of the confiscation proceedings, whoever the nominee owner is.

Country | Year | Drugs (D) or serious crime (SC) | Property or value confiscation | Conviction required? | Criminal or civil (or other easier) standard of proof | Reverse burden of proof ? | Proceeds must be linked to conviction | Third party property
Australia - Customs Act - POCA | 1979 1987 | D SC | PV PV | no yes 1 | civil civil | no yes | no no | eff. control eff. control
Austria | 1997 | SC | PV | no | criminal | yes 2 | no | gift
Belgium | 1990 | SC | PV | yes | criminal | no 3 | yes | yes
Canada | 1989 | SC | PV | yes | both possible | no | no | yes
Denmark | 1930s | SC | PV | yes 4 | criminal | no 5 | yes | all categories
Finland | 1994 | SC | PV | yes | criminal | no | yes | yes
France |  | SC | PV | yes | criminal | yes (drugs)5 | no (drugs)6 | knowledge
Germany | 1975 | SC | PV | no | criminal | no 7 | yes 6 | yes
Greece | 1995 | SC | PV | no | criminal | yes | no | gift
Hong Kong | 1995 | SC | PV | yes 8 | civil | yes | no 8 | gift/eff. control
Iceland | 1940s | SC | PV | no | criminal | no 4 | yes | knowledge
Ireland | 1994 1996 | SC SC | PV P | yes no | civil civil | yes yes | no no | gift yes
Italy | 1950 | SC | P | yes 9 | criminal | yes 10 | no 9 | eff. control
Japan |  |  |  |  |  |  |  |
- Penal Code | 1908 | SC | PV | yes | criminal | no | yes | knowledge
- Anti drug law | 1992 | D | PV | yes | criminal | yes 11 | yes | knowledge
Luxembourg | 1989 | SC | PV | no | criminal | no | yes | yes
Netherlands Neths. Antilles Aruba | 1993 | SC SC SC | PV PV PV | yes yes yes | other 12 criminal criminal | no no no | no yes no | yes yes yes
New Zealand | 1992 | SC | PV | yes 1 | civil | yes 10 | yes | eff. control
Norway | 1985 | SC | PV | no | criminal/civil | no | yes | gift/knowledge
Portugal | 1995 | SC | PV | yes | criminal | no | yes | knowledge
Singapore | 1993 | D | PV | yes | civil | yes | no | gift/eff. control
Spain | 1996 | SC | P | yes | criminal | no | yes | yes 13
Sweden | 1940s | SC | PV | yes | criminal | no | yes | yes
Switzerland | 1994 | SC | PV | no | criminal | yes | no | yes
Turkey | 1920s | SC | PV | yes | criminal | no | yes | no
United Kingdom | 1995 | SC | PV | yes 8 | civil | yes | no 8 | gift
United States - civil forfeiture - crim. forfeiture | 1986 1984 | SC SC | P PV | no yes | civil criminal 14 | yes 15 no | no yes | know/eff. cont’l gift/eff. control
TOTALS |  | D: 1 SC: 25 | P: 16 V: 6 PV:4 | Yes: 17 No: 7 Both: 2 | Criminal: 16 Civil: 6 Both: 3 | Yes: 11 No: 13 Both: 2 | Yes: 13 No: 12 Both: 1 | Yes: 25 No: 1

Footnotes

1 Australia and New Zealand - except for persons who die or abscond prior to conviction, who may be deemed convicted for confiscation purposes.

2 Austria - the onus of proof may be partially reversed in cases where there has been repeated commissions of crimes over a period or where the defendant is a member of a criminal organisation.

3 Belgium - considering whether to reverse burden as part of measures to be taken against organised crime.

4 Denmark - an order can be made w/o conviction if there is no prosecution because the limitation period for the offence has expired.

5 Denmark has introduced a bill and Iceland is considering whether to introduce a bill which requires the defendant to render probable that his property was legitimately acquired for serious offences.

6 France - the court can order that a defendants property is confiscated (whether acquired before or after the crime and whether legitimate or not) if the defendant is convicted of a drug trafficking or drug money laundering offence. The property is confiscated without need for the prosecution to do more than obtain a conviction.

7 Germany - if the defendant is convicted of certain offences the court may assume that assets of the defendant were acquired from illegal activity if the circumstances justify this, and may thus confiscate them.

8 Hong Kong and United Kingdom - a confiscation order can be made without a conviction where the defendant absconds or dies prior to conviction. In addition, cash which is imported or exported and is the proceeds or instrumentality of drug trafficking can be forfeited without a conviction.

9 Italy - in certain cases one can have confiscation without conviction.

10 Italy - for drug trafficking and organised crime the onus of proving the assets are legitimate can be placed on the defendant if his assets are not commensurate with his income. In such cases it can apply to any assets, and not just to those which are the proceeds of the offence of which he is convicted.

11 Japan and New Zealand - for drug offences if the property was obtained during the period of the offences and the value of the property is not commensurate with the defendant’s legitimate income.

12 Netherlands - the standard of proof is slightly easier than the full criminal standard.

13 Spain - property can be confiscated where it is a gift and the third party knew or suspected that it was the proceeds of crime. Similarly, a confiscation order can be executed against property subject to the effective control of the defendant if the third party is a bare nominee titleholder who is acting in bad faith.

14 United States - in criminal cases, the standard of proof is that appropriate to a sentencing hearing, namely the preponderence of the evidence.

15 United States - in civil cases, if the government shows that there is probably cause to bring the proceedings, then the burden shifts to the defendant to show that he or she did not know that the property was acquired illegally or did not consent to the use of the property in an illegal manner.

Back