In a full legislative plenary session, El Salvador’s political parties demonstrated their ability to twist regulations intended to fight crime and shield the assets of those suspected to have obtained them illegally. Among those who voted are officials with personal motivations for reforming the asset forfeiture law.
In June 2014, El Salvador’s Legislative Assembly approved the asset forfeiture law with 82 of 84 votes in favor. Members of congress applauded themselves afterwards for taking steps to combat organized crime and corruption; the law empowered tax authorities and judges to order the seizure of the assets of those suspected of crimes who could not verify the property’s origins. Three years later, after the law began to target the politicians themselves and some of their influential contacts, lawmakers from all of El Salvador’s major political parties and a Nationalist Republican Alliance (Alianza Republicana Nacionalista – ARENA) lawmaker decided to make a change.
During an afternoon plenary session initially with a blank agenda, 44 votes were enough to approve 16 reforms to the asset forfeiture law and the associated regulatory body. One of the most important reforms focuses on the window that authorities have to apply the law and hold the assets. For gang members and other organized crime suspects like drug traffickers, that period will be 30 years. However, for others like politicians prosecuted for corruption-related offenses, it will be just 10 years.
The law was created under the parameters of several international conventions, and was signed by the Salvadoran state. But officials did not keep this in mind when they endorsed another reform where no public official could be subjected to asset forfeiture proceedings “until proceedings for the Law of Illicit Enrichment of Officials and Public Employees finished and a final judgement is made by the respective Civil Chamber.” In other words, asset forfeiture may only be applied against public officials if they have been convicted by a judge in a civil trial for illicit enrichment. Apart from that, Salvadoran officials are exempt from the law, unless they are charged with a criminal offense.
With these reforms, defendants now have access to their case from the initial phase of investigation by the Attorney General’s Office, and will no longer have to wait until after the Attorney General files the asset forfeiture request with a judge. In addition, asset forfeiture judges now have to apply “necessity, suitability and proportionality” principles to enact or ratify precautionary measures against assets of illicit origin.
The 44 votes are enough to create new legal means for “provisional filing.” Under the current law, the prosecutor sends the cases he or she cannot prove to the provisional file until more evidence is obtained. In these cases, the prosecutor can remove cases from the file to continue investigating until the illicit origins of the assets are determined. In addition, sending the case to the provisional file does not mean that the assets are not of illicit origin. However, the new reform to provisional filing puts prosecutors in a race against time. Not having sufficient evidence now means that prosecutors will have 12 months to find evidence to support their cases. If they do not obtain the needed evidence in the allotted time, a final judgement will be made, which is to say that the assets, even if they were illegal, will be protected in favor of the suspect.
But the magnitude of these reforms was not enough for ARENA officials, who had been hesitant to at least try to discuss them at the meeting. In fact, these reforms were not discussed at all by any of the officials present in the legislative assembly. This is why another reform was discussed, one that allows asset forfeiture judges to end precautionary measures for seized assets during preparatory hearings.
Currently, both the defendant and prosecutor must provide evidence to support their case. The prosecutor must prove the illicit origin or destination of the assets in question, or the defendant must prove their legal origin. The new reforms, however, leave the burden of proof on the prosecutor, although one of the main strengths of the law, officials said at the time, was that the suspects were not capable of verifying the origin or destination of the assets in question. Now, the accused do not have to prove anything before a judge.
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But now those suspected of having assets of illicit origin or destination also have more legal recourse. For example, an asset forfeiture judge’s decision to ratify or revoke assets in question is no longer enough. The defendant may now appeal to the Criminal Chamber of the Supreme Court of Justice to review the case.
There are three cases in which asset forfeiture proceedings can be dropped: a lack of competence, a violation of due process or a defect in the notification process. But yesterday, one more case was approved: the “violation of basic rights and guarantees recognized in the Constitution, current international law and other laws.” While petitions to drop a case can currently only be made in the last two stages of official proceedings (the preparatory and sentencing stages) the reforms give defendants the opportunity to request that their case be dropped at any point in the asset forfeiture proceedings.
Finally, assets sent to the National Council of Property Administration (Consejo Nacional de Administración de Bienes – CONAB) can only be sent as a precautionary measure if there is “sufficient jurisdiction” to do so. In any case, “personal property or goods that provide family support, household goods, family homes or real estate” are to be delivered to the defendant during the judicial proceedings and will only be handed over to the state when a final judgement has been made.