Chapter 6: The Confiscation and Forfeiture of the Illicit Proceeds of Crime
6. The confiscation and forfeiture of the illicit proceeds of crime The first and most important legal tool for depriving offenders of illegal profits is confiscation of the proceeds of crime.1 6.1 INTRODUCTION An integral part of the global financial crime strategy is the ability of law enforcement agencies to deprive organized criminals, drug cartels and terrorists of their illegal earnings. Nelen argued that ‘by dismantling their organisations financially, criminals must be hit at their supposedly more vulnerable spot: their assets’.2 This is a view supported by the Financial Action Task Force (FATF) who noted that: a robust system of provisional measures and confiscation is an important part of an effective anti-money laundering and counter-terrorist financing regime. Confiscation prevents criminal property from being laundered or reinvested either to facilitate other forms of crime or to conceal illicit proceeds.3 There are a broad range of mechanisms to tackle the proceeds of crime including forfeiture provisions, criminal and civil confiscation regimes and taxation procedures. Forfeiture has been defined as ‘the surrender or loss of property or rights without compensation’.4 There are traditionally 1 Stessens, Guy (2000) Money laundering: a new international law enforcement model, Cambridge University Press, Cambridge, at p. 29. 2 Nelen, H. (2004), ‘Hit them where it hurts most? The proceeds of crime approach in the Netherlands’, Crime, Law & Social Change, 41(5), 517–534, at 517. Also see Smellie, A. (2004), ‘Prosecutorial challenges in freezing and forfeiting proceeds of transnational crime and the use of international asset sharing to...
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