Continuing with the line of questions and answers from the interesting world of criminal law, today I wrote about the"Domain Forfeiture Action"that although "it is not a criminal matter" -being an autonomous procedure of a civil nature-, it derives irremediably from a criminal procedure, therefore, I will approach it from a simple perspective.
First of all, it must be specified what is meant by"extinction of domain"to the loss of the rights that a person has in relation to an asset, through a sentence. That is, to the loss of an asset due to the fact thatbeing the product, object or instrument of a crime.
As an example, I will use when an act is committed that the law indicates as a crime or with the appearance of it, within a property, which is insured, in order that the ministerial authority carry out various procedures in it, with the purpose of collecting various elements that serve as evidence that allow you to clarify the criminal act.
Once the ministerial authority has concluded such an investigation in the property, two situations could occur regarding the destination of the property:
- That the return of the property be ordered to whoever proves to have rights over it; O well,
- That the Prosecutor initiate the "Action of Domain Forfeiture" with respect to it.
But what will it depend on if they deliver the property to me or if they start the Asset Forfeiture Action?
In order to answer this question, we have to go to the content of the penultimate paragraph of article 22 of the Federal Constitution, as well as article 1 of the National Asset Forfeiture Law, articles that are in harmony with each other when establishing the catalog of crimes for which proceeds this "action for extinction of domain", which are the following:
- Acts of corruption;
- Concealment;
- Crimes committed by public servants;
- Organized crime;
- Vehicle Theft;
- Resources of illicit origin;
- Crimes against health;
- Kidnapping;
- Extortion;
- human trafficking; and,
- Crimes committed in the field of hydrocarbons, oil and petrochemicals.
Only for the commission of any of the crimes described above could the action for extinction of domain be exercised with respect to an asset, that is,"such action could not be brought for a diverse crime"– unless it was related to any of the illicit conducts described above.
Likewise, it is necessary to specify that,the action for extinction of domain will proceed on those assets of a patrimonial nature whose Legitimate Origin cannot be proven, in particular, goods that areinstrument, object or product of the illegal acts, without prejudice to the place of its realization, such as:
- Goods that come from the transformation or conversion, partial or total, physical or legal, of the product, instruments or material object of illegal acts referred to in the fourth paragraph of article 22 of the Constitution;
- Assets of legal origin used to hide other Assets of illegal origin, or materially or legally mixed with Assets of illegal origin;
- Assets for which the owner of the asset does not prove their legal origin;
- Assets of lawful origin whose value is equivalent to any of the Assets described in the preceding sections, when their location, identification, seizure, seizure, or material seizure is not possible;(FRACTION DECLARED INVALID BY THE PLENARY OF THE SCJN IN SESSION OF JUNE 17, 2021)
- Property used for the commission of illicit acts by a third party, if its owner was aware of it and did not notify the authority by any means or did not do anything to prevent it; and, (REGULATORY PORTION DECLARED INVALID BY THE SCJN PLENARY IN SESSION OF JUNE 17, 2021).
- Assets that constitute income, income, products, yields, fruits, accessories, profits and other benefits derived from the Assets referred to in the previous sections.
In simple terms, any good that is:
- OBJECT OF A CRIME:THE BMW vehicle that was stolen from your friend. (Understanding this as the property that has recently been directly affected).
- INSTRUMENT OF CRIME:The property that was used in the Colony to sell narcotic substances; the plane that was used to transport packages of marijuana. (Understanding this as the good that serves as a tool to allow or favor the planning and execution of a criminal act).
- PROCEEDS OF CRIME: The Mercedes truck that the "Wachicolero" bought with the profits he makes from selling gasoline illegally. (Understanding this as the result or profit derived from a criminal act).
Hey, what if I didn't know that the house I was renting had kidnapped people and used it as a safe house?
The federal legislator tried to shield individuals whoThey act in good faith and are effectively unaware of the activities that their "tenants" carry out in the properties that they "rent", by making the exercise of such action subject to the existence of“A PRIOR KNOWLEDGE OF SUCH SITUATION”, that is, the legislator intended to establish that if a person was unaware that some criminal activity was being carried out on his property, he had the opportunity to demonstrate that ignorance and with it the inadmissibility of the action.
For which, it established in the law in the matter said exceptions in articles 7, section V, article 9, point 4 all of the National Law of Asset Forfeiture; however, in the recentUnconstitutionality action 100/2019, resolved on June 21, 2021by the Plenary of the Supreme Court of Justice of the Nation, it was determined to invalidate all these normative portions tending to demand the accreditation of the subjective element“UNKNOWN” by the owners of said assets.
The foregoing, due to the fact that article 22 of the constitutional text before its reform in March 2019 "SI required in a certain case the accreditation of subjective aspects, such as: the good faith of the owner of the property"; However, the current constitutional norm“NO LONGER DEMANDSthat in the event that the assets subject to extinction of domain are used for the commission of crimes by a third party, the owner or holder of the assetMUST INVARIABLY PROVE, that is to say,IN ALL CASES,THE GOOD FAITH IN YOUR ACT".
This rule of law that is constantly repeated in article 22 of the Constitution is the one related to the fact that the defendant(OWNER OF THE PROPERTY)affected by the exercise of the extinction action, if you want this action not to prosper"IT HAS THE BURDEN OF PROVING ONLY ONE ASPECT, THE LEGITMA ORIGIN OF THE GOOD, NOTHING ELSE"This allows us to highlight that from the text of the supreme norm, the power to reform the constitution sought that the burden of proof for the parties (plaintiff and defendant) no longer involved the demonstration of subjective elements, such as:THE KNOWLEDGE HE HAD OR COULD HAVE HADthe owner or holder of the property regarding its use by a third party for the performance of illegal conduct.
Under this logic, the provisions related to proving subjective elements (Knowledge of the owner or owner of the property) contravene the constitutional text, by trying to regulate the demonstration or presumption of a subjective element (good or bad faith in the actions of the owner or holder of the property) which is no longer required by article 22 of the current Federal Pact.
That is to say,the elements to prove for the origin of the actionin question, in terms of article 9 of the special legislation, are:
1. The existence of an Unlawful Act;
2. The existence of any property of illegal origin or destination; and,
3. The causal link of the two previous elements.
The fourth element, which was:
4. The knowledge that the owner has or should have had, of the destination of the property to the Illegal Act, or that it is the product of the illegal act. This element will not be considered fulfilled when it is proven that the holder was prevented from knowing it.
In conclusion, the ministerial authority is empowered to exercise the action for extinction of domain against any property that is the object, instrument or product of a crime -as long as it is within the crimes that were previously described-, therefore, the importance of being aware that if we rent a property, it is used for a lawful purpose; likewise, as soon as we have the slightest suspicion that any illegal activity is being carried out in it, notify the authority in order to avoid the prolongation or consummation of crimes, which could lead us to lose our properties.
Likewise, it is necessary that we be careful to monitor the "legal origin" of those goods that we acquire (movable and immovable), in order to avoid that by an "error or ignorance" we acquire any that is a product, object or instrument of a lagoon criminal conduct described above and that as a result the authority seizes it from us.
Thanks for reading me.