Asset Seizure Without Nexus: Legalized Plunder in Criminal Procedure -By Fransiscus Nanga Roka

Asset seizure is defended in many criminal justice systems as a necessary … preserve evidence, stop dissipation and secure restitution. In principle, that sounds reasonable. In reality, it is an awful deal beyond your wildest expectations. Investors are seizing homes, vehicles and family property now across jurisdictions based on liminal to no connection in the alleged crime. Hardly the shining example of law enforcement there. It is legalized plunder with the lingo of procedure.

This story starts from a fairly abstract betrayal of legal logic. Under a constitutional order, the state can only take property when it ties the asset to an offense — as proceeds, instruments, objects or evidentiary material. Absent that intention, seizure is no longer an act of procedure but arbitrary dispossession. That line is however often blurred. With a named suspect almost anything surrounding them is subject to attack: a spouse’s savings, the land of their dad or mom, even an uncompromised car belonging to your own brother (or sister), so long as these items can be linked in any way with the sale proceeds from which derivative action would arise, not least family businessbuilt up probably many years before they had committed this terrible crime.

Proponents of broad seizure powers claim that criminals frequently conceal illegal profits in the name of relatives or other third parties. That is true. However, discipline is not done away with by truth. Not all can be punished without due process because an abuser might exist in the group. But if the state thinks an asset is acting as a nominee holding or laundering vehicle, then all defense will require it to prove so. Deprivation must not come after the evidence, but that is how it happens. If this is not the case, criminal procedure stops being a system of adjudication and becomes an engine for economic coercion.

Notably, the gravest aspect of this is that unrelated seizure of assets constitutes punishment without a conviction, and is frequently done without any real remedy as well. The physical loss might even be reversed by courts later, but for now the intangible effects play out — illiquidity, destroyed credit and reputations, broken businesses. Months or years later, procedural victory is a hollow consolation to the people: no matter how you justify it in court, their lives were wrecked by the seizure itself. In that regard, overbroad seizure functions as a kind of pretrial punishment—punishment by process rather than by sentence.

Not just criminal defendants are the victims. Spouses who have never laid eyes on the alleged proceeds, parents whose assets are hauled into a case by virtue of association and third parties whose only misfortune is close proximity to suspicion. This is where the moral fibre of a rule of law comes to the fore. A legal system which makes no distinction between the accused and the innocent in its proximity is not being tough on crime. It is being reckless with justice.

The deeper danger is institutional. Seizure loses nexus and creates perverse incentives. Property turns into leverage. Fear of economic devastation can coerce cooperation, confessions, or silence. The intervention of investigatory need ebbs into a tool of political intimidation. And because seizure is so frequently characterized as temporary, violence against it is downplayed. But non-legal base temporary state theft is still theft.

Recovering first principles is essential for making an effective criminal justice system. No asset should be confiscated regardless of evidence unless the connection to the alleged offense is clear and reviewable. Colleges and universities must end the practice of rubber-stamping vague applications. Rapid and effective opportunities for third parties to challenge seizures The judicial system ought to punish overreaching investigators not if their requests are quiet, but if they aren’t.

There is a reason that the state has so much power: it does to protect justice, not to recreate pillaging behind a veneer of legality. Criminal procedure that permits authorities to wrongful seizure — what they cannot link, punishment — who they cannot prove and ruin the lives of whom they cannot convict is a constitutional line crossed. At that time, seizure is no longer an instrument of justice. This is nothing but expropriation with a badge.

Fransiscus Nanga Roka

Faculty of Law University 17 August 1945 Surabaya and Managing Partner of Law Firm Victorious Indonesia