Here's why the US DOJ opted for civil action instead

KINIGUIDE | The United States Department of Justice's third filing in the 1MDB civil forfeiture lawsuit has prompted Defence Minister Hishammuddin Hussein to challenge the department to press criminal charges against those they claim were involved in the crime of money laundering and siphoning cash from 1MBD. 

This has been a sticking point for those casting doubt over the action, who also argue the lack of criminal proceedings show that no crime had in fact been committed. 

So why is the DOJ opting for civil action and not criminal proceedings? 

This question is not new and was also posed to then United States attorney-general Loretta Lynch, while a Kiniguide on the matter was compiled by Malaysiakini days after. 

Below is an excerpt:

What is a civil forfeiture suit?

A civil forfeiture suit allows the US government to seize properties and proceeds linked to certain criminal activities, especially drug trafficking and money laundering.

Once filed, US enforcement officers would seize, freeze, or seal the properties in question - whichever is applicable.

A notice would be sent to the owners or posted in public within 60 days, after which, interested parties have 35 days to file a claim.

If a civil forfeiture suit is contested, parties may opt to settle the suit, or argue the case in court to allow the judge to decide.

Otherwise, the US government takes possession of the property by default.

The proceeds of the forfeiture are usually distributed among the law enforcement agencies involved for their own use or auctioned off to fund further law enforcement action.

In the context of the Kleptocracy Asset Recovery Initiative, however, the money is supposed to be returned to those aggrieved by the allegedly corrupt act.

If a civil forfeiture suit is contested in court, the plaintiff would have to draw a direct link from a crime that can be subjected to criminal forfeiture, to the property.

The parties challenging this would have to prove that he is an innocent owner of the property (for example, that he is unaware of the crime and did not consent to it), or that the forfeiture would be disproportionate to the alleged crime.

Why opt for civil forfeiture and not criminal proceedings?

Civil forfeitures are controversial in the US because it allows the state to deprive a person of his property without securing a criminal conviction against him, or even filing a criminal charge.

In fact, it can take place whether or not there are any criminal proceedings.

The burden of proof is also lower. In criminal cases, including criminal forfeitures, the state has to prove beyond reasonable doubt that the accused is guilty of a crime. A criminal conviction is required for a criminal forfeiture to take place.

In contrast, civil forfeiture cases are decided based on a balance of probabilities of the available evidence.

There are also complaints that the process had been abused to enrich cash-strapped police departments.

What about in the 1MDB case? Why not press criminal charges?

Loretta Lynch, the US attorney-general, was asked a similar question during the press conference where she announced the suit. She replied:

“With respect to forfeiture, when we have the evidence that we can, in fact, seek the restraint of assets (from moving) in order to avoid them being further dissipated, sold to someone else, or transferred to someone else that would make it harder for us to actually restrain those assets.

“As with all cases - even with civil forfeiture - we bring the action when the facts and the evidence come together, and when we feel that we have sufficient cause to get a judicial order to allow for seizure and restraining of assets, and that’s where we are here.”

Why is the US government suing assets instead of individuals?

To sue a piece of property instead of a person is known by the Latin term ‘in rem’. Historically, this is practiced to seize property when the property is known, but not the owner.

It may also be the case when the court in question has jurisdiction over the property (for example, because of where the property is located), but not the person owning it (for example, if the alleged crime was committed overseas, or the person is located overseas).

In any case, US civil forfeiture suits are typically in rem actions, in contrast to criminal forfeiture proceedings that are of the more conventional in personam actions.

As a side note, the use of in rem civil forfeiture suits can sometimes give rise to interesting names for the court cases. In one instance, the US government sought to seize a set of dinosaur bones that were allegedly stolen from the Mongolian government and smuggled into the US.

The 2012 case was styled in official filings as ‘United States of America v one Tyrannosaurus bataar skeleton’. The United States won the battle against the dinosaur skeleton.- Mkini