Anticorruption policies in Brazil: constitutional challenges on implementing asset civil forfeiture

Abstract

PurposeThis paper aims to answer three questions: Is the presumption of innocence principle in risk? How to balance it with the burden and standard of proof? Does the asset civil forfeiture procedure imply a criminal charge? These are the 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 procedural safeguards.Design/methodology/approachThere are some questions that should be addressed: Is the presumption of innocence principle in risk? How to balance it with the burden and 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 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 analysis with the current American debate about asset civil forfeiture provisions, its main lessons and concerns to individual procedural safeguards.FindingsThis paper focused on answering three questions: Is the presumption of innocence principle in risk? How to balance it with the burden and standard of proof? Does the asset 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 rights constitutional provision. Second, asset civil 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/valueThe value of this paper is based on its current debate, 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 assets implies a violation of the Brazilian Federal Constitution, which presumes good faith and non-abused use to be legitimated.