New Procedural Regime for Civil Action for Non-Conviction Based Asset Forfeiture

The Argentine Government issued Emergency Decree No. 62/2019 (the “Decree”) implementing a Procedural Regime for Civil Action that will apply to non-conviction based asset forfeiture (“Asset Forfeiture”), published in the Official Gazette on January 22, 2019. The Decree is enforceable as of the date of publication, but still subject to Congressional approval.

Goods subject to Asset Forfeiture. The Asset Forfeiture will affect the goods incorporated into the estate of the defendant after the date when the crime under investigation was committed, and are considered to derive directly or indirectly from that crime. The goods will be considered of criminal origin if they are incompatible with the respondent’s lawful income or may be deemed as unexplained wealth.

Civil action and crimes included. The regime establishes a civil action in favor of the Federal Government which will apply to the goods or titles that are allegedly the result of certain crimes. These crimes include, among others, fraud against the Government, racketeering, bribery, influence peddling, incompatible dealings in the exercise of public office, illegal enrichment of public officials, money-laundering, terrorism and certain forms of smuggling.

Reversed burden of proof. Once the civil action is initiated, the defendant carries the burden of showing the licit origin of the goods in question.

Autonomous proceeding. The Asset Forfeiture is the result of an autonomous judicial proceeding. That is, under the conditions defined in the Decree, asset forfeiture does not rest on a conviction issued by a criminal court.

Competent Jurisdiction Federal Civil and Commercial Courts have jurisdiction over Asset Forfeiture actions.

Effects of the Asset Forfeiture’s ruling. The Asset Forfeiture’s final ruling will be res judicata, notwithstanding the results of any other judicial action. However, if the relevant criminal court ultimately dismissed the charges or acquits the defendants, the Federal Government must reinstate the goods or deeds involved –or their equivalent, if not possible– to their previous possessor or owner.

Federal Attorney’s General Office for Asset Forfeiture. The Federal Attorney General’s Office for Asset Forfeiture is set up within the sphere of the Federal Attorney’s General Office.

Legal standing. The Federal Attorney’s General Office for Asset Forfeiture is vested with legal standing to pursue Asset Forfeiture’s civil actions. To this end, it also has the authority to conduct ex-officio investigations and cooperate in the identification and location of goods that may derive from the abovementioned crimes. It may subpoena information both to the Federal Government and public and private entities, establish investigative groups together with local, foreign and international entities, and provide and/or require international cooperation.

Compensation for collaborating persons. The General Prosecutor’s Office may develop collaboration programs with the persons who provide relevant information for the investigations carried out by the Federal Attorney’s General Office for Asset Forfeiture. The collaborating persons may be awarded with up to 10% of the goods obtained as a consequence of the information they provided.

Statute of limitations of the civil action. The statute of limitations for the Asset Forfeiture’s civil action is of 20 years as of the date the goods were incorporated into the estate of the respondent, or, if this is impossible to determine, as of the date the crime under investigation was allegedly committed.