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| Round table: Draft Law on Forfeiture to the State of Any Property Acquired by Criminal Activity
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 A round table discussion on the Draft Law on Forfeiture to the State of Any
Property Acquired by Criminal Activity was held at the Center for
the Study of Democracy on October 1, 2002. Ms. Karen Kramer, Resident Legal Advisor at the Embassy of the USA, provided opening remarks followed by a presentation by Ms. Susan Smith, Senior Trial Attorney at the Asset Forfeiture and Money Laundering Section in the Criminal Division of the U.S. Department of Justice.
Ms. Smith made a review of the history of asset
forfeiture in the United States and its development, and described
the rather complex legislation in this area. Below are excerpts of
Ms. Smith's speech.
Forfeiture has been a part of the United States
jurisprudence since the beginning of the Republic. The first
forfeiture laws were passed by the Congress in 1789. Basically they
were civil forfeiture laws based on violations of U.S. customs laws
and tax laws.
 Early in the 1970s when crime became huge problem for the United
States, in particular drug trafficking, the Congress began looking
at the use of forfeiture laws as a means of combating those types
of offences. It was the first time when the US Government started
using criminal forfeiture to attack all those criminal activities
and their assets. In their experience the best way to effectively
fight against criminal organizations, money laundering and drug
trafficking, is to take the profit out of the crime, and the way to
do that is to forfeit the assets of the criminals that they have
derived from their crimes.
During the last 250 years three types of forfeiture
actions were established in the USA: administrative procedure,
civil forfeiture and criminal forfeiture.
The administrative forfeiture procedure is basically
used for money laundering and drugs. It is a procedure without any
kind of judicial oversight. The administrative forfeiture allows
the law enforcement institutions when they have a probable cause to
believe that a crime has occurred or that the asset was used in
that crime to seize the asset by themselves without a judicial
order.
The judicial type forfeitures are both civil and
criminal forfeiture. Civil forfeiture is essentially a case against
the property itself with no concern about the guilt or innocence of
its owner. The case is against the property and its relationship to
the crime, which generated it. In 2000, the Department of Justice
came to agreement with Congress to raise the burden of proof in a
civil forfeiture case, so that now it is entirely the burden of the
prosecution to prove the case against the property. In a criminal
case the much higher standard of "beyond a reasonable doubt" should
be met.
Within the United States the money that's been
forfeited are distributed into two separate Asset Forfeiture Funds.
The first one belongs to the Department of Justice and the other to
the Department of Treasury. The money, which is put into those
funds, is limited into what they can be used for. The primary
objective is to manage the assets and to pay for their management,
so that the value of the assets is maintained.
 In the
discussion that followed, representatives of the Bulgarian
judiciary raised issues such as the procedures on the part of the
innocent owners when they have to protect themselves against the
state and the need for a legal definition of the term "criminal
activity". In respect to the value of the assets that should be
subject to prosecution, Ms. Smith said: "30 000 lv. might not be
too high a profit, but why let anybody benefit from crime
activity".
Ministry of Interior's experts, who took part in the
elaboration of the law, asked for expert advice on certain problems
that the law might cause.
Ms. Smith expressed her general approval of the concept of the
draft law, stressing that it was a strong move forward toward the
ability to seize and freeze assets, acquired by criminal
activity.
Biographical data for Ms. Susan Smith
First round table on the Draft Law on Forfeiture to the State of Any Property Acquired by Criminal Activity
Available in Bulgarian
Draft Law on Forfeiture to the State of Any Property Acquired by Criminal Activity (PDF 196 kb) | |
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