Anticorruption policies in Brazil: constitutional challenges on implementing asset civil forfeiture
| Pages | 1013-1025 |
| DOI | https://doi.org/10.1108/JFC-04-2020-0050 |
| Date | 05 June 2020 |
| Published date | 05 June 2020 |
| Author | Fabio Ramazzini Bechara,Gabriel Monti Manzano |
| Subject Matter | Financial crime,Accounting & Finance |
Anticorruption policies in Brazil:
constitutional challenges on
implementing asset civil forfeiture
Fabio Ramazzini Bechara
Criminal Law, Mackenzie Presbyterian University, São Paulo, Brazil, and
Gabriel Monti Manzano
Boston University, Boston, Massachusetts, USA
Abstract
Purpose –This paper aims to answer three questions: Is the presumption of innocence pr inciple in
risk? How to balance it with the burden and standard of proof? Does the asset civil forfeiture procedure
imply a criminal charge? These arethe main constitutional issues that have hampered the processing of,
and consensus regarding, the regulation of the asset civil forfeiture in Brazil, the subject of bill 5681/
2013 of the Chamber of Deputies and bill 255/2015 of the Federal Senate. The hypothesis is that the
property or the possession of illegal assets implies a violation of the Brazilian Federal Constitution,
which presumes good faith and non-abused use to be legitimated. This study intends to enrich this
discussion with the current American debate, its main lessons and concerns to individual proce dural
safeguards.
Design/methodology/approach –There are some questions that should be addressed: Is the
presumptionof innocence principle in risk? How to balance it with the burdenand standard of proof? Does the
asset civil forfeiture procedure imply a criminal charge? Thus, this paper aims to discuss these questions,
which are the main constitutional issues that have hamperedthe processing of, and consensus regarding,the
regulation of the asset civil forfeiturein Brazil, the subject of bill 5681/2013 of the Chamber of Deputies and
bill 255/2015 of the Federal Senate. The hypothesis is that the property or the possession of illegal assets
implies a violationof the Brazilian Federal Constitution, which presumesgood faith and non-abused use to be
legitimated. This study intends to enrich this analysis with the current American debate about asset civil
forfeitureprovisions, its main lessons and concerns to individual proceduralsafeguards.
Findings –This paper focused on answeringthree questions: Is the presumption of innocence principlein
risk? How to balanceit with the burden and standard of proof? Does theasset civil forfeiture procedure imply
a criminal charge? The authors sustained the constitutionality of the asset civil forfeiture from a Brazilian
perspective, based on three main arguments: First, asset civil forfeiture is based on the non-abused use of
property rightsconstitutional provision. Second, assetcivil forfeiture does not imply on or presume a criminal
charge. Finally,asset civil forfeiture is not based on the same standard of proof as a criminal proceeding.
Originality/value –The value of this paper is based on its currentdebate, the regulation of the asset civil
forfeiture in Brazil, which is subject of bill 5681/2013 of the Chamber of Deputies and bill 255/2015 of the
Federal Senate.The hypothesis is that the property or the possession of illegal assetsimplies a violation of the
BrazilianFederal Constitution, which presumes good faithand non-abused use to be legitimated.
Keywords Corruption, Asset civil forfeiture, Brazilian constitutional challenges,
Burden and standard of proof, Presumption of innocence
Paper type Literature review
1. Introduction
Although the Brazilian institutionaland legislative model has advanced in the past 20 years
in relation to the fights against corruption, illegal markets, money laundering and criminal
organizations, there are still opportunities and room for improvement, especially with
Asset civil
forfeiture
1013
Journalof Financial Crime
Vol.27 No. 4, 2020
pp. 1013-1025
© Emerald Publishing Limited
1359-0790
DOI 10.1108/JFC-04-2020-0050
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