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The confiscation and recovery of criminal property: a European Union state of the art

Abstract

Since the late twentieth century, new criminal policies have emerged which have substantially restructured the global effort to fight crime. These anti-crime strategies eschew traditional approaches to fighting illicit behaviours in favour of a new paradigmatic shift towards the asset recovery strategy. The newly established mechanisms aim at tackling the criminals where it hurts the most, i.e. their property, with a view to ensuring that crime does not pay. This contribution succinctly analyses the birth and evolution of modern confiscation mechanisms, the prevailing models for efficient recovery of criminal property, and the European Union state of the art on the matter.

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Notes

  1. ‘Money and crime have become inextricably linked. An assault on the financial structure has become a central defining characteristic of contemporary crime control. Within this emerging assault on criminal finances, a dramatic transformation is occurring’. Gallant [18], p. vi.

  2. Cassella [10], p. xxxiv.

  3. Initially, drug trafficking and organized crime; today, the deprivation of criminal assets is being promoted for each and every type of offence (especially acquisitive crime).

  4. Being later joined by a reinforced attention on terrorist money and the freezing of terrorist property.

  5. Simonato [34], p. 216.

  6. E.g. there has been a noticeable lack of interest from the literature as to the question of the temporary deprivation of alleged criminally-related property. Only recently did political (hence legislative) authorities realise the fundamental need for ‘freezing’ or ‘seizing’ (alleged) criminally-related property at a very early stage of proceedings with a view to their subsequent permanent deprivation.

  7. E.g. in the US and the UK.

  8. The proposed terminology emanates from both supranational instruments and common law jurisdictions. Yet civil law systems employ a different and more diverse classification than exposed, such as the object, instrumentalities, product and profits/proceeds of the offence.

  9. See e.g. Art. 2(3) of Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union, OJ L 127 of 29 April 2014, pp. 39 ff.

  10. See e.g. Art. 2(1) of Directive 2014/42/EU.

  11. Set aside the confiscation of estate, a penalty that targets the entirety of the assets of a person who was convicted for certain crimes—which was particularly prevalent from ancient times until the modern era.

  12. Though Italian Penal Code of 1930 already provided for the confiscation of the ‘profit’ of crime.

  13. Bullock/Lister [9], pp. 49–50.

  14. E.g. Cassella [11], pp. 14–15.

  15. Bullock/Lister [9], p. 48. Yet several studies argue that little proof exist about the effectiveness of this strategy. See e.g. Harvey [19], pp. 201–202.

  16. Pimentel [28], p. 41.

  17. ‘Conversely, convicting the defendant but leaving him in possession of the riches of wrongdoing gives others the impression that a life of crime is worth the risk.’ Cassella [10], p. 2.

  18. King [23], p. 374.

  19. Further (utilitarian) justifications to the power of confiscation have been brought forward: e.g. protecting the community, enhancing confidence in the criminal justice system, improving crime detection, encouraging cooperation between law enforcement authorities/agencies… King/Walker [22], p. 7; Cassella [11], p. 16; Seals Bersinger [32], p. 856.

  20. For an extensive discussion on the evolution of confiscation laws in continental and common law jurisdictions, see Fernandez-Bertier [16].

  21. President Reagan similarly declared a war on organised crime in the 1980s.

  22. ‘As long as the property of organised crime remains, new leaders will step forward to take the place of those we jail.’ US Senate [37], p. 78.

  23. Although Ireland was first to implement a common law model of non-conviction based confiscation in Europe through its Proceeds of Crime Act 1996. The UK only did so in the Proceeds of Crime Act 2002—following the Irish impetus.

  24. Savona [31].

  25. Feldman [14]; Dorn/Murji/South [13], p. ix.

  26. Gallant [18], preface.

  27. First through the Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Vienna, 20 December 1988; then the Convention against Transnational Organized Crime, Palermo, 12 December 2000; and the Convention against Corruption, New York, 31 October 2003.

  28. The Financial Task Force (FATF) is an inter-governmental body devoted to elaborate standards and promote the fight against money laundering, terrorist financing and other threats to the integrity of the international financial system. It adopted in 1990 Forty Recommendations to fight money laundering, which were subsequently revised in 1996, 2003 and 2012.

  29. First through the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, Strasbourg, 8 November 1990, CETS No. 141; then the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, Warsaw, 16 May 2005, CETS No. 198.

  30. Bell [4].

  31. ‘Terrorism put a new twist on the preoccupation with criminal proceed. […] In dealing with this crime, the focus tends to shift from proceeds derived from crime to moneys destined for crime.’ Gallant [18], p. 3.

  32. Simon [33], pp. 260–261.

  33. Although authors have already made use of such a term of art decades ago: Abrams [1].

  34. It is argued that through tackling white-collar crime, the US Congress has once again changed the landscape of forfeiture. Dery [12].

  35. See e.g. the BNP Paribas criminal confiscation of USD 8.8 billion imposed on May 1, 2015 following the bank’s violation of economic embargos with Sudan, Iran and Cuba. It is quite symbolic as it constituted the ‘largest financial penalty ever imposed in a criminal case’. It is noteworthy that the additional criminal fine ‘only’ amounted to USD 140 million, which testifies of the potential extensive and harsh character of confiscation orders today. US Department of Justice [38]; US Department of Justice [39].

  36. Knowing that criminal proceedings call for the highest standard of proof, i.e. beyond a reasonable doubt.

  37. See however, Fernandez-Bertier [15]; Rui/Sieber [29]; Simonato [34]; King [23]; Boucht [8].

  38. I.e. in Italy (1992), the Netherlands (1993) and the UK (1993).

  39. Turone [36], p. 58.

  40. Extended confiscation ‘is achieved by removing the causation requirement between the criminal offence and the proceeds’, which originate from ‘more vague preceding criminal activity’. Boucht [8], p. 129.

  41. Boucht [8], p. 129.

  42. Ibid.

  43. Cassella [10], p. 31.

  44. The fiction was ‘about as irrational and unjust a proposition as a sober mind can concoct’. Finkelstein [17].

  45. Cassella [10], p. 34.

  46. ‘Although in practice there is often a link between the preventive [NCBC] measures and criminal proceedings […]’. Panzavolta/Flor [27], pp. 118, 123.

  47. E.g. that it is more likely than not that the property derives from crime.

  48. Such as in the US, Ireland (1996), the UK (2002), but also South Africa, Australia…

  49. Set aside the Italian anti-mafia preventive confiscation (which was adopted through Law of 13 September 1982, No. 646), non-conviction based mechanisms were recently adopted in Romania (2007), the Slovak Republic (2011), Bulgaria (2012) and Slovenia (2012).

  50. Simonato [34], p. 217.

  51. Rui/Sieber [29], p. 245.

  52. Only Australia, Colombia and Ireland according to Transparency International, Empowering the UK to recover corrupt assets. Unexplained Wealth Orders and other new approaches to illicit enrichment and asset recovery, March 2016, p. 24, www.transparency.org.uk. To this day, the Australian UWO regime has faced constitutional challenges and has not been particularly successful. Ibid. at 24.

  53. E.g. a report was prepared for the US Department of Justice on the matter: Booz Allen Hamilton [6]. The UK Government has also expressed its interest in UWOs: Home Office [20], p. 21, 2.33.

  54. Booz Allen Hamilton [6], p. 1.

  55. Accordingly, Bartels [3], p. 2.

  56. Booz Allen Hamilton [6], p. 1.

  57. E.g. that the person is laundering the proceeds of corruption. Transparency International [35], p. 26.

  58. Ibid. at p. 25.

  59. Bartels [3], p. 2.

  60. Transparency International [35], p. 26.

  61. Booz Allen Hamilton [6], p. 1.

  62. This being the case of France. See the StAR Initiative of 2012, according to which 44 countries had at the time created an offence of illicit enrichment. Muzila/Morales/Mathias/Berger [24], p. xiii. See also Boles [5].

  63. Although the notion has no strict statutory definition. Boles [5], pp. 855–856; Muzila/Morales/Mathias/Berger [24], pp. 18–21.

  64. Muzila/Morales/Mathias/Berger [24], p. 7.

  65. Muzila/Morales/Mathias/Berger [24], pp. 12–13.

  66. The offence is habitually part of anti-corruption regimes. See generally Muzila/Morales/Mathias/Berger [24].

  67. Muzila/Morales/Mathias/Berger [24], pp. 5–7. See also Transparency International [35], pp. 39–40.

  68. Home Office [20], p. 21. See also the proposal made by Transparency International [35], pp. 25–40.

  69. European Commission, Confiscation & asset recovery, www.ec.europa.eu.

  70. Council of the European Union’s Joint Action 98/699/JHA on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime, OJ L 333 of 9 December 1998, p. 1.

  71. For an analysis of the evolution of the EU framework for confiscating the proceeds of crime, see Borgers [7].

  72. Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime, OJ L 182 of 5 July 2001, p. 1.

  73. Which was undoubtedly the masterpiece instrument of the EU until the adoption of Directive 2014/42/EU on freezing and confiscation (infra). Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence, OJ L 196 of 2 August 2003, p. 46.

  74. Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property, OJ L 68 of 15 March 2005, pp. 49–51.

  75. Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders, OJ L 328 of 24 November 2006, p. 61.

  76. Council Decision 2007/845/JHA of 6 December 2007 concerning cooperation between Asset Recovery Offices of the Member States in the field of tracing and identification of proceeds from, or other property related to crime, OJ L 332 of 18 December 2007, p. 103.

  77. Simonato [34], pp. 216–217.

  78. Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union, OJ L 127 of 29 April 2014, p. 39.

  79. I.e. point (a) of Art. 1 and Arts. 3 and 4 of Framework Decision 2001/500/JHA, and the first four indents of Art. 1 and Art. 3 of Framework Decision 2005/212/JHA.

  80. Simonato [34], p. 220. It only gives limited attention to the tracing, freezing, management, recovery and re-use of criminal assets. On the last phase of asset recovery, see Montaldo [24].

  81. Third party confiscation (Art. 6 of the Directive) is not discussed hereinafter given the limited scope of this contribution. The Directive also gives a particular attention to procedural safeguards (Art. 8).

  82. Contra, some Member States (such as Spain) have modified their Criminal (Procedure) Code to comply with the 2014 instrument.

  83. I.e. one, two or all three options. Proposal for a Directive of the European parliament and of the Council on the freezing and confiscation of proceeds of crime in the European Union, Brussels, 12 December 2012, COM(2012) 85 final, p. 10.

  84. The Commission noted that the framework decision led to ‘piecemeal transposition’. Ibid.

  85. ‘Moreover, the alternative options for extended confiscation have restricted the scope for mutual recognition of confiscation orders. The authorities in one Member State will execute confiscation orders issued by another Member State only if these are based on the same alternative options applied in that Member State. As a result, the mutual recognition of orders based on extended confiscation is problematic’. Ibid.

  86. Recital 19 of the Directive.

  87. An offence that is comprised in the list of crimes established by the Directive. See Art. 3 and 5(2) of the Directive.

  88. Recital 19.

  89. Recital 21.

  90. Simonato [34], p. 213.

  91. See e.g. Alagna [2].

  92. Rui/Sieber [29], p. 277. Although it is both interesting and useful to consider the whole legislative process from the proposal to the final text of the Directive (especially the LIBE Committee proposal—which could be seen as NCBC in the traditional sense), this is not discussed in this contribution for brevity purposes. See also Alagna [2], pp. 455–459.

  93. It is here primarily referred to the common law model of confiscation-based confiscation (such as it exists in the US, the UK or Ireland); alternatively to the Italian (continental) preventive confiscation.

  94. It is ‘something entirely different to what is commonly known as non-conviction based conscation’. Rui [30], p. 354.

  95. This is not entirely true for the Italian preventive (anti-mafia) confiscation, which is non-conviction based in nature, has historically been tied to the prior existence of suspicions against (and targeting of) an individual—similarly to an actio in personam. Yet it is argued that it is/should be evolving towards an actio in rem. See Panzavolta/Flor [27].

  96. ‘This necessary nexus between an offender and a crime makes it clear that, in substance, Art. 4 No. 2 has nothing to do with a typical NCBC decision.’ Rui/Sieber [29], p. 278.

  97. Simonato [34], p. 222.

  98. Alagna [2], p. 457.

  99. Rui/Sieber [29], p. 355; Simonato [34], p. 225.

  100. Rui/Sieber [29], p. 279.

  101. Rui and Sieber argue that ‘the Directive’s use of illness as a reason for a judgment in absentia is misleading.’ Rui/Sieber [29], pp. 279–280.

  102. Ibid. at p. 280.

  103. Ibid. at p. 281.

  104. Accordingly, see the statement of the UK Parliament European Scrutiny Committee: ‘Most Member States do not have civil non-conviction based confiscation regimes and do not face the same problem with this Article as we do. In general, Member States have sought to change Art. 5 [now 4(2)] so that they can comply with it without having to create new non-conviction based confiscation powers. Negotiations have reshaped the Article so that Member States can implement it by using in absentia prosecutions to achieve a conviction.’ House of Commons [21], p. 56.

  105. Rui/Sieber [29], p. 283; Simonato [34], pp. 222–223.

  106. Although Alagna laments that ‘a great opportunity has been lost, insofar as NCB measures are concerned, and, probably, many years will necessarily pass before a new comprehensive Directive will be approved and a European legislation on non-conviction based confiscation enacted.’ Alagna [2], p. 449.

  107. Art. 13 of the Directive, which first erroneously referred to year 2018. It was corrected through a corrigendum published in OJ L 138 of 13 May 2014, p. 114.

  108. Joint declaration of the Council and Parliament, Proposal for a Directive of the European Parliament and of the Council on the freezing and confiscation of proceeds of crime in the European Union [first reading]—Approval of the final compromise text, 28 November 2013, 16861/13 ADD 1.

  109. European Parliament, Special Committee on Organized Crime, Corruption and Money Laundering: European Parliament resolution of 11 June 2013 on organised crime, corruption, and money laundering: recommendations on action and initiatives to be taken (interim report), (2012/2117(INI)).

  110. Communication from the Commission to the European parliament, the Council, the European economic and social committee and the committee of the regions, The European Agenda on Security, 28 April 2015, COM(2015) 185 final, p. 17.

  111. Rui/Sieber [29], p. 245. The authors even cite a fourth approach, i.e. the EU one.

  112. Rui and Sieber make the distinction between repressive criminal law, preventive police law and civil law. Ibid. at pp. 249–255.

  113. Ibid. at pp. 283–284, 288, 290. ‘To sum up, Art. 83(1) TFEU cannot serve as a basis for the EU to enact a common law model of NCBC legislation. The same must be said about Art. 83(2) TFEU, which contains the same requirements as No. 1 on ‘criminal… sanctions.’ In addition, confiscation rules under Art. 83(2) TFEU can only be adopted once an EU policy has first been harmonized. As yet, no such policy can be identified in the context of confiscation’. Ibid at 288. For its part, Simonato observes that ‘the legal basis for the adoption of the Directive is Art. 83 TFEU, which seems unsuitable for introducing a pure system of civil asset forfeiture detached from substantive criminal law aspects’. Simonato [34], p. 221. See also Nilsson [26], p. 19.

  114. Rui/Sieber [29], pp. 290–302.

  115. European Parliament resolution of 23 October 2013 on organised crime, corruption and money laundering: recommendations on action and initiatives to be taken (final report) (2013/2107(INI)).

  116. Proposal for a Directive of the European Parliament and of the Council on the freezing and confiscation of proceeds of crime in the European Union [first reading]—Approval of the final compromise text, 28 November 2013, 16861/13 ADD 1.

  117. The European Agenda on Security, 28 April 2015, COM(2015) 185 final, p. 17.

  118. Communication from the commission to the European parliament and the Council on an Action Plan for strengthening the fight against terrorist financing, 2 February 2016, COM(2016) 50/2, pp. 11–12.

  119. Speech by Commissioner Jourová at the European Criminal Law Academic Network 2016 Annual Conference, 10th Anniversary, Brussels, 25 April 2016, www.europa.eu.

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Fernandez-Bertier, M. The confiscation and recovery of criminal property: a European Union state of the art. ERA Forum 17, 323–342 (2016). https://doi.org/10.1007/s12027-016-0436-1

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Keywords

  • Asset recovery
  • Extended confiscation
  • Non-conviction based confiscation, civil forfeiture
  • Unexplained wealth
  • Mutual recognition
  • European Union