Distinguishing between seizure and forfeiture is crucial in the legal context. Both of these measures impact the ownership and availability of assets, but they differ in nature and duration.
Seizure
Seizure is a legal measure that involves the temporary removal of an asset, whether it is movable or immovable, to prevent the legitimate owner from disposing of it. Seizure can take various forms:
- Conservatory Seizure: This is a precautionary measure applied to the property of a defendant to prevent the dispersion of their movable and immovable assets, safeguarding potential compensation resulting from a future judgment.
- Preventive Seizure: This precautionary measure is employed to prevent the use of assets related to a crime to worsen the consequences of the offense or to commit further criminal acts.
- Probative Seizure: It is used to obtain evidence by removing it from the accused party to prevent tampering, thus ensuring an accurate assessment of the truth in legal proceedings.
Forfeiture
Forfeiture, on the other hand, entails the expropriation of assets that were used or intended to commit a crime, or that represent the proceeds, profits, or price of the offense (Article 240 of the Penal Code). This measure pertains exclusively to movable and immovable property. The goal of forfeiture is to prevent the commission of new crimes by expropriating these assets in favor of the state.
- Optional Forfeiture (Article 240, paragraph I): Assets used or intended to commit the offense and assets representing its proceeds or profits can be subject to optional forfeiture. These assets must have a direct and essential causal link to the offense.
- Mandatory Forfeiture (Article 240, paragraph II): The forfeiture of certain assets is always ordered, regardless of a conviction. These include assets constituting the price of the offense and assets whose possession, manufacture, use, possession, or disposal is a crime.
Differences Between Forfeiture and Seizure
The primary difference between seizure and forfeiture is that seizure is a temporary measure, while forfeiture is an accessory penalty applied after a final conviction, resulting in expropriation in favor of the state.
Seizure has a precautionary nature and is adopted as a preventive measure to protect evidence, prevent asset dispersion, or hinder the use of assets for illicit purposes. Conversely, forfeiture is permanent and can only be applied after a conviction.
Why Consult an Experienced Attorney for Seizure or Forfeiture Related to Drug Trafficking
In cases of arrest related to drug trafficking, the seizure of money, considered proceeds of illegal activity, is common. The legality of this seizure will be assessed by a judge for possible forfeiture later on.
However, it is important to note that the seized amount may not be directly linked to the alleged crime but could result from other illegal activities or even legal activities. In such cases, there may be no connection between the accused offense and the seized money, making it ineligible for forfeiture.
If you have been involved in a case involving the seizure or forfeiture of funds related to drug trafficking, it is crucial to consult an experienced criminal defense attorney. A specialized law firm can assist you in seeking the release of wrongfully seized assets. The expertise of a competent attorney in this field can make a significant difference in protecting your rights and assets.
