TNRC Introductory Overview Targeting Profit: Non-Conviction Based Forfeiture in Environmental Crime
Targeting Profit: Non-Conviction Based Forfeiture in Environmental Crime
Crime shouldn’t pay – but unfortunately it does
Money is at the heart of environmental crimes that exploit wildlife, forests, fisheries or other natural resources. These transnational crimes generate significant profits, estimated at USD 7-23 billion annually for wildlife crime alone (Nellemann et al. 2014), and are mostly “serious, organized crime on an industrial scale driven by the profit motive” (Haenlein and Keatinge 2017). Wildlife traffickers rely heavily on bribery of officials, including rangers, customs, agents, prosecutors, and judges, as well as complex fraud and tax evasion (FATF 2020 p. 7).
Following the money
Trafficking in products derived from environmental crime is commonly regarded as low-risk and high-profit. To tackle this lucrative trade, numerous experts and organizations advocate conducting thorough financial investigations to “follow the money” (FATF 2020; Reid et al. 2020) and addressing laundering of the profits (Shelley 2020).
Following the money helps investigators identify individuals involved in trafficking environmental crime products and uncover the routes through which illicit goods are trafficked. It also helps locate assets that can be subsequently confiscated.
However, asset forfeiture powers are underused in environmental crime cases, including wildlife crime (APG and UNODC 2017). This can be due to a failure to conduct financial investigations, lack of experience on the part of practitioners, or limited powers of asset forfeiture under domestic legislation. The result is that, as the Eastern and Southern Africa Anti-Money Laundering Group (ESAAMLG 2016) lamented, “despite arresting traffickers and seizing illegal wildlife products, law enforcement have [sic] failed to arrest or convict, let alone confiscate/forfeit illegally acquired assets by the criminal masterminds wreaking havoc in this area across Africa.” This leaves an important tool unused.
Taking the profit out of environmental crime
Confiscating assets from criminal actors is based on the principle that crime should not pay. Asset recovery seeks to remove the profits of criminal activity from those that benefitted from the crime. Seizing criminal assets also removes finances that would otherwise be used in further criminal activity, for example to pay bribes. Actively targeting the proceeds of environmental crime can be a significant deterrent by increasing the risk and lowering the profit for those involved.
Basic forfeiture is no match for sophisticated criminality
The most basic form of criminal forfeiture, confiscation, involves seizure of items used to commit a crime (instrumentalities) and any proceeds originating from the crime after an individual is convicted. In the context of wildlife trafficking, this could include confiscation of a poacher’s vehicle and any money received for the animal.
This may be a hardship for the poacher but has no impact on the wildlife traffickers further up the chain. As the use of criminal confiscation has increased, driven initially by drugs and other organized crime cases, criminals have become more sophisticated at concealing the profits from their activity. Many launder the proceeds through corporate structures and bank accounts in other jurisdictions. In environmental crime, those masterminding the criminal activity distance themselves from hands-on involvement, thus reducing the likelihood of being convicted of a crime and facing subsequent asset recovery measures.
Targeting higher-level criminals for corruption and money laundering
In addition to being a crime in itself, corruption enables environmental crime in a wide variety of ways. For example, criminals can use bribes and kickbacks to gain illegitimate licenses and access to natural resources, as well as leverage corrupt relationships to evade investigation and prosecution. Corruption also facilitates the flow of products past customs and other export restrictions. However, corruption offenses can be especially difficult to prove to a criminal standard, not least because they are typically private acts between individuals which are seldom witnessed or otherwise recorded.
In countries that have them, therefore, NCBF mechanisms can be a powerful tool to target criminal finances derived from corruption related to environmental crimes, especially of those higher up the criminal chain and therefore further removed from the criminal act itself.
Breaking down NCBF – what are the possibilities?
As with criminal confiscation, NCBF is a judicial process: a court determines whether the assets are of a criminal origin after hearing evidence from the State and the individual holding the asset. Of the different types of NCBF (CARIN 2015), the following three have the greatest potential in an environmental crime context. These could be applied in both source and destination countries, depending on capacity and on the political and legal context.
- Extended confiscation (forfeiture) takes place as part of criminal proceedings after an individual is convicted of a trigger or lifestyle offense, including trafficking offenses. Extended confiscation enables the court to look beyond the direct proceeds of the crime of which the defendant has been convicted and to consider whether the remainder of their assets have been derived from other criminal activity. Typically, the legislation will allow the court to assume that the assets are derived from criminal activity unless the offender can demonstrate their lawful origin. The United Kingdom has had some form of extended confiscation legislation since 1986, but this method of asset forfeiture took time to gain acceptance in other countries. Extended confiscation is now generally accepted as a legitimate form of asset forfeiture in cases of serious crime, and more countries have introduced these provisions. Mozambique, as part of its long-running struggle to prevent wildlife crime, recently made this change.
- Civil forfeiture (confiscation) is a procedure in which the prosecutor seeks to prove that a specific asset has resulted from unlawful conduct. This procedure is usually civil in nature and so the lower standard of proof (balance of probabilities) applies. The prosecutor will usually have to make the case that the asset has or is likely to have derived from criminal conduct. The burden is then on the person owning or holding the asset to show that it has derived from legitimate income. It is often not necessary to show that the asset has derived from a particular criminal act for the court to order the asset to be forfeited. Civil forfeiture is not dependent upon a criminal conviction and so can be applied in cases where an individual has not been prosecuted or even where there has been an acquittal (see Box 3). States are increasingly introducing this mechanism of asset recovery, for example in Malawi and Peru (Solorzano 2021), but the extent of its use varies among jurisdictions.
- Unexplained wealth or illicit enrichment procedures can be criminal or civil in nature and can be used, for example, to target the assets of public officials who are believed to have received corrupt payments over a period of time. There is no need to prove an underlying crime (Dornbierer 2021). Instead, under this model a comparison is made between the actual accumulated wealth of an individual and their declared legitimate income and the individual is required to justify any disparity. In Kenya, for example, prosecutors used illicit enrichment laws to obtain an order for payment of KES 318 million (nearly USD 3 million) from a former public finance official following his failure to account for assets which exceeded his legitimate income (Nairobi Law Monthly 2020).
Success factors for recovering the proceeds of corruption and environmental crime
Countries have different capacities and legal frameworks for asset recovery. The chances of recovering assets from an environmental criminal are higher where:
- A country has a variety of asset recovery mechanisms that can be deployed in environmental crime cases, including NCBF.
- Law enforcement agencies, prosecutors, and other stakeholders such as wildlife and revenue agencies cooperate to determine investigative strategies and obtain evidence.
- Law enforcement agencies have the capacity to conduct effective financial investigations to identify assets and demonstrate their criminal origin.
- Law enforcement agencies cooperate closely with the private sector, such as financial and transport companies, and specialized NGOs to broaden their access to evidence and utilize specific technical expertise.
- Courts effectively seize and freeze suspected criminal assets until the trial.
Success in asset recovery requires strong political will to enable the introduction of effective legislation to confiscate criminal assets (with or without a conviction) and the provision of adequate resources so that cases can be properly investigated and heard within a reasonable period of time. The absence of effective legislation, the lack of court time and judges to hear cases, and the failure to manage cases robustly, as well as the intervention of corrupt actors, can create delays and reduce the effectiveness of asset recovery processes. Sometimes delay may be due to the sheer complexity of the investigation into corporate and financial structures created to thwart the asset recovery process. But however long the overall procedure, the freezing of assets at an early stage still has a significant disruptive effect on criminal activity by preventing their use in the commission of further offenses.
What can I do?
Practitioners, policymakers, and donors may have different opportunities for action related to the use of asset forfeiture for addressing environmental crime and the corruption that enables it. In every case, it is important to make a careful assessment of the enabling environment for, and potential risks of, encouraging this approach. Then, depending on an actor’s role and level of engagement, options include:
- Engage with law enforcement agencies and prosecutors to establish what forms of asset forfeiture are available. Does the country have NCBF mechanisms? Which authorities are responsible?
- Promote the follow-the-money approach in environmental crime cases to identify higher-level criminals and locate illicit assets that could be recovered.
- Ask whether money laundering, fraud, tax evasion, or bribery offenses can be brought against an individual even if there is insufficient evidence to prosecute them for the environmental crimes they are suspected of.
- Encourage collaboration and information-sharing between law enforcement, anti-corruption and environmental stakeholders, domestically as well as internationally in transnational cases.
 In the context of this Introductory Overview, references to corruption should be taken as meaning acts which would amount to a corruption offense in the country in which they have taken place.
 See for example the United Kingdom Proceeds of Crime Act 2002, Section 75.
 Financial Crimes Act 2017.
 European Court of Human Rights, Gogitidze v. Georgia (2015), 12 May 2015, Appl. No. 36862/05.
 Political Declaration of the 32nd UNGASS, 2021, https://undocs.org/en/A/S-32/L.1.