[Draft 1] - Asset Forfeiture Regulations

[Simone Republic]

Motivation

This resolution tackles one of my pet peeves about the US judicial system: the use of civil forfeiture without a conviction of the law.
https://en.wikipedia.org/wiki/Civil_for ... ted_States

For John Oliver's take:
https://www.youtube.com/watch?v=3kEpZWGgJks

This is subject to further changes since I am less familiar with US laws vs the laws of England, especially between civil judicial forfeiture vs administrative forfeiture.

Draft 1.1

The World Assembly (WA),

Note that some WA states adopt the practice of civil forfeiture, which allows law enforcement officers to take property from crime suspects without necessarily charging (or convicting) owners with any wrongdoing;

Believing this administrative (or judicial) process contravenes the spirit of assuming that someone is innocent until proven guilty, and creates perverse incentives to seize assets, sometimes to enrich the law enforcement agencies themselves;

The WA hereby enacts as follows:

1. Definitions.
   
   1. "Asset" means any item of value, whether physical or otherwise.
   2. "Court" means any judicial venue in a WA state. This includes administrative tribunals, lay magistrates, and other judicial or juridical agencies of a WA state.
   3. "LEA" means any law enforcement authority in a WA state.
2. In rem jurisdiction.
   
   1. No court in a WA state may assert in rem jurisdiction on an asset where an assertion of ownership on the said property has been made by an individual. This is regardless of the status of the individual in that WA state.
   2. Any property claimed by an individual must be subject to in personam jurisdiction and a criminal forfeiture procedure, defined in clause 4, shall be adopted.
   3. This resolution does not govern the case if an LEA applies for, or for a court to grant, permission to freeze or prohibit the sale or transfer of any assets held by an individual, subject to due process.
3. Unclaimed property.
   
   1. If an LEA decides to seize an asset where no ownership has been asserted by any particular individual, or that the ownership of the said asset cannot be ascertained prior to trial, the court may grant jurisdiction for temporary seizure of the property an on in rem basis pending trial, subject the court:
      
      1. accepting that a prima facie case exists for a potential charge against individuals associated with the said asset; and
      2. adjudicating on a burden of proof that is no less than a preponderance of evidence basis.
   2. Any temporary seizure of assets, including the potential disposal of such assets as well as any income from such assets, shall first be used to satisfy any bail requirements for any suspects subject to criminal investigation.
4. Preservation.
   
   1. Any assets temporarily seized by a Court or an LEA (depending on the legal procedures of the WA state) shall be held in trust pending the outcome of any criminal procedures or litigation.
   2. Due care shall be taken by a court or LEA to preserve the value of the property temporarily seized.
5. Criminal forfeiture. No court may permit criminal forfeiture unless, subject to due process:
   
   1. jurisdiction is asserted on an in personam basis; and
   2. the individual whose ownership of the property is asserted has been convicted of an offence on the basis of "beyond reasonable doubt" and has exhausted all avenues to appeal;
   3. the court has exhausted all avenues of appeal regarding multiple individuals asserting ownership of the said assets subject to due process;
   4. the forfeiture is part of the penalty imposed by the court.
6. Use of proceeds.
   
   1. Any assets forfeited from anyone convicted of a criminal offence who has exhausted all appeals shall first be used to pay for any penalties imposed.
   2. No WA state may use the proceeds of any assets forfeited directly to fund the operations of their courts and LEAs.
   3. No assets belonging to the WA or any of the committees of the WA may be forfeited even if they were used in crimes against a WA state, without the approval of the WA or the said committee.
7. Exclusions. This resolution does not govern:
   
   1. the behavior of diplomats;
   2. the behavior of any officers of the WA or WA organs;
   3. customs officials from seizing any assets pursuant to local laws or extant resolutions;
   4. the seizure of any asset where possession thereof contravenes local laws or extant WA resolutions.

Char count: 4,036.

The original draft 1 is quoted in Kenmoria's reply below.

[Bananaistan]

"This is appears to be a charter for gangsters and scumbags to get away with their ill-gotten gains. Opposed. We really wish the WA would stop fretting about the rights of murders, terrorists and kiddy fiddlers."

OOC: Seriously opposed as it appears to outlaw this sort of things. I say appears because I haven't the foggiest what in rem and in personam mean. Surely there's an understandable way to get the point across without relying on such obscure terminology. Both appear to be well away from the likes "ad hoc" and "bona fide". I'd suggest making it easier for the reader to understand what you want to achieve because the casual player is unlikely to appreciate having to go off and study for an hour just to get a vague understanding of one clause.

[Kenmoria]

Ambassador Fortier stands to speak. “This is a very administrative law, which does seem to presuppose a certain kind of jurisprudence. However, it fits quite well with the Kenmorian model, so I no have no particulate objections. I do, however, have some feedback, presented in red annotation.”

The World Assembly (WA),

Note that some WA states adopt the practice of civil forfeiture, which allows law enforcement officers to take property from crime suspects without necessarily charging (or convicting) owners with any wrongdoing; “Crime suspects” ought to be “criminal suspects”.

Believing this administrative (or judicial) process contravenes the spirit of assuming that someone is innocent until proven guilty, and creates perverse incentives to seize assets;

The WA hereby enacts as follows:

1. Definitions.
   
   1. "Asset" means, for convenience, any physical asset of monetary value property plus any other items of value, such as digital assets, intellectual property, and contractual assets such as trademark rights and leaseholds. Because physical assets are wholly contained within items of value, this clause is a little muddled logically. I suggest that it be written to simply state that an asset is any item of value, whether physical or otherwise.
   2. "Court" means, for convenience, judicial venues established by a WA state plus administrative tribunals, lay magistrates, and other judicial or juridical agencies of a WA state.
   3. "LEA" means a law enforcement authority in a WA state.
2. In rem jurisdiction.
   
   1. No court in a WA state may assert in rem jurisdiction on an asset where an assertion of ownership on the said property has been made by an individual. This is regardless of the status of the individual in that WA state. Due to the broadness of the manner in which court is defined, there is the possibility that a judicial agency which uncontroversially owns an asset is precluded from relying on this claim of ownership merely due to a vexatious counterclaim by some individual. Though I understand the mischief that your Excellency intends to address, which is forfeiture of assets where there dispute over title between two individuals being lazily resolved by a court seizing it, the clause does rather more than that.
   2. Any property claimed by an individual must be subject to in personam jurisdiction and a criminal forfeiture procedure, defined in clause 4, shall be adopted. This clause has a confused logic behind it, in my view. All property is subject to jurisdiction in rem in the broad sense, insofar as it is possible to bring an action in rem in respect of any property that one wishes. As currently written, it is though this clause prohibits the bringing of claims based in rights in rem in their entirety.
   3. This resolution does not govern the case if an LEA applies for, or for a court to grant, permission to freeze or prohibit the sale or transfer of any assets held by an individual, subject to due process. In place of “for a court to grant”, “a court grants” should be substituted.
3. Unclaimed property.
   
   1. If an LEA decides to seize an asset where no ownership has been asserted by any particular individual, or that the ownership of the said asset cannot be ascertained prior to trial, the court may grant jurisdiction for temporary seizure of the property an on in rem basis pending trial, subject the court: “On an” ought to be substituted for “an on”. It seems as though this clause could made far simpler by referring to a res nullius.
      
      1. accepting that a prima facie case exists for a potential charge against individuals associated with the said asset; and
      2. adjudicating on a burden of proof that is no less than a preponderance of evidence basis.
   2. Any temporary seizure of assets, including the potential disposal of such assets as well as any income from such assets, shall first be used to satisfy any bail requirements for any suspects subject to criminal investigation.
4. Trust.
   
   1. Any assets temporarily seized by a Court or an LEA (depending on the legal procedures of the WA state) shall be held in trust pending the outcome of any criminal procedures or litigation. Not all legal systems have trusts. The existence of equity is a historical accident which, in Kenmorian jurisprudence, simply emerged due to the alliance between the Kenmorian Heptarchy and the Kingdom of England. Therefore, one cannot rely upon this particular form of encumbrance existing. It would be better to require that courts that have possession of assets due to temporary seizure have an obligation to segregate those assets from all others, have an obligation to maintain those assets in specie, and have a form of title lower than full ownership. Those are the essential indicia of a trust, without having to rely on a particular equitable framework.
   2. Due care shall be taken by a court or LEA to preserve the value of the property temporarily seized.
5. Criminal forfeiture.
   
   1. No court may permit criminal forfeiture unless:
      
      1. jurisdiction is asserted on an in personam basis; and
      2. the individual whose ownership of the property is asserted has been convicted of an offence on the basis of "beyond reasonable doubt"; and As was done previously, your Excellency should add “or an equivalent standard of proof” after “"beyond reasonable doubt"”.
      3. the forfeiture is part of the penalty imposed by the court.
   2. The actual forfeiture of the asset shall be carried only after the individual whose ownership of the asset is asserted has exhausted all avenues of appeal, subject to due process.
   3. If multiple individuals assert ownership of property subject to criminal forfeiture, the court is to adjudicate on such matters, subject to due process.
6. Funding.
   
   1. No WA state may use the proceeds of any assets forfeited directly to fund the operations of their courts and LEAs.
   2. This is to avoid any incentives to impose excess penalties on anyone convicted of an offence. Justification belongs in the preamble rather than the active clauses.
7. Exclusions. This resolution does not govern:
   
   1. the behaviour of diplomats;
   2. the behaviour of any officers or representatives of the WA or WA organs;
   3. customs officials from seizing any assets pursuant to import/export laws in that WA state or extant resolutions;
   4. the seizure of any property where mere possession of such property is in contravention of the laws of the WA state or extant WA resolutions.

"This is appears to be a charter for gangsters and scumbags to get away with their ill-gotten gains. Opposed. We really wish the WA would stop fretting about the rights of murders, terrorists and kiddy fiddlers."

OOC: Seriously opposed as it appears to outlaw this sort of things. I say appears because I haven't the foggiest what in rem and in personam mean. Surely there's an understandable way to get the point across without relying on such obscure terminology. Both appear to be well away from the likes "ad hoc" and "bona fide". I'd suggest making it easier for the reader to understand what you want to achieve because the casual player is unlikely to appreciate having to go off and study for an hour just to get a vague understanding of one clause.

(OOC: Actions in rem are good against the world. They are claims in respect of a thing, hence “rem”. Actions in personam, conversely, are good against a person. They are claims in respect of a person, hence “personam”. If I claim that I own something absolutely, then that is a claim in rem, because I am asserting the right to exclude all other persons. If, on the other hand, I claim that you have an obligation to return my asset to me, then that is a claim in personam, because I am asserting a right-duty relationship only between myself and you. I suppose that the simpler terminology would be refer to a “real action” and a “personal action”, which avoids the Latin.)

[Imperium Anglorum]

The phrases "real action" and "personal action" are also jargony. I can't immediately think of plain English terms to distinguish the two since the difference is itself not a plain English one. "I am going to sue you" conveys no meaningful information as to the form (or cause) of action the suit will be brought under.

[The Ice States]

As someone who has been criticised for (over)using Latin in resolutions, I do think that "real action" and "personal action" are clearer than "in rem" and such.