Effective asset recovery begins with a robust legal framework that aligns with international standards, such as those outlined in the United Nations Convention against Corruption (UNCAC). Breathing life into the legal framework however requires an intentional, carefully calibrated, case selection strategy, including the use of test cases. In the context of asset recovery, a test case is a strategically selected legal case, often smaller and less complex, used to establish legal precedents and demonstrate the effectiveness of asset recovery laws, thereby building legal precedent and judicial confidence before tackling more complex and high-stakes cases.
In the common law legal tradition, the stare decisis doctrine – a Latin phrase meaning “to stand by things decided” – is a foundational concept that holds that courts and judges should honor precedent. In these jurisdictions early unfavorable judicial decisions on asset recovery, if not fatal, may set back full use of the tool by many years. Even in civil law jurisdictions that do not adopt a stare decisis approach to deciding cases, precedents serve a persuasive role and can greatly influence how subsequent cases are approached.
Asset recovery law often raises novel and complex legal and constitutional issues. These cases, at least in the initial stages, tend to be heavily litigated by accused persons with deep pockets who can afford to employ the best private lawyers. The risk of losing early on could cause the asset recovery program significant reputational damage. Scoring early wins in smaller, less complex, and more strategically selected “test” cases, that demonstrate the importance and value of asset recovery as an effective weapon in the law enforcement armory, may be more effective than aiming for the biggest elephant straight off the bat.
Case selection criteria
There remains a great deal of truth in the adage that bad facts make bad law. Cases should be carefully selected to ensure that the facts are suitable for the development of good law. Asset recovery mechanisms may be perceived as draconian by some who view the deprivation of liberty through incarceration as a result of criminal conviction to be sufficient penalty. Applying the law to cases with compelling facts, such as confiscating a luxury vehicle acquired by a corrupt politician accused of diverting public funds destined for public goods such as health care or education, will make it much easier for a judge to apply the law in favor of the State. Whereas, applying confiscation to recover proceeds from, for example, subsistence fisherman who fish without government permits, or neighborhood outlets that trade in liquor outside of regulated operating hours, may be permissible, but may not make the case as compellingly. Once judges are more comfortable with applying the law, cases that push the boundaries can be brought.
Early cases should focus on settling and making routine the application of the law in straightforward proceeds cases. Once the courts are accustomed to these cases, expanding into more complex cases involving assets transferred to third parties or proceeds from unspecified unlawful activity can be tackled. Similarly, the first cases involving forfeiture of an instrumentality of crime should leave no room for a disproportionality argument. Once the principle of forfeiture of instruments is established, cases that push the boundaries, such as seizing a building on the basis that an organized crime group regularly held meetings, there could be considered.
Complex, high stakes cases tend to consume large amounts of prosecution and investigative resources. If large sums of money are at stake or prominent political figures are involved, the prospects of the case going on appeal increase. If the stakes are very high, the case can become the focus of media attention and an adverse decision in these circumstances can result in a significant loss of public confidence in the asset recovery process and state institutions in general. Judges confronted with such cases tend to be more cautious and conservative.
However, it is difficult to justify using asset recovery mostly in minor cases. The legislation is often introduced for the very purpose of fighting organized crime and targeting the powerful or individuals who are seldom directly involved in committing crime but tend to enjoy the fruits. Often there is public pressure for a significant impact to be made quickly, and it is not possible to wait the years it will take to complete test cases.
While it is useful to get many smaller cases to court that acquaint judges with the new legislation, such cases often do not result in written judgements that can be used as precedent. Larger cases are useful as they are heavily contested and result in more reasoned judgements from the court. To ensure that the right balance is struck, it is important to ensure that case selection is centralized, and the sequencing of cases is carefully considered.
Ideally, identify up front the legal issues that are likely to be raised in a given case and assess the prospects of having the issue decided in the State’s favor before continuing to institute proceedings. Make sure that teams of lawyers with the necessary legal expertise are available to present the case in court, even if they have to be sourced from outside of the prosecution. And finally, ensure that those dealing with these cases have access to the court decisions dealing with the same legal and constitutional issues in other relevant jurisdictions.