Improving asset confiscation: in the quest for effective and just solutions

Abstract

The quest for effectiveness in criminal law results in creating non-punitive sanctions based on evidentiary facilities and lowered standard of proof. European courts, while focusing on procedural safeguards, perceive the structure of criminal sanctions as an element of national penal policy and leave it to the national authorities. The latter may, however, be ready to sacrifice certain important aspects of criminal law, like judicial discretion or individual guarantees, for the sake of unspecified ‘effectiveness of legal regulations’. In case of asset confiscation such approach can result in forfeiture of significant quantities of property without the certainty that it actually comes from a crime. Therefore, it seems necessary to identify the framework of criminal law principles applicable to non-punitive sanctions, in order to receive – while interpreting legal provisions – an effect that is not only a (presumably) effective, but also a just solution. This paper contributes to this issue with particular emphasis on extended form(s) of asset confiscation.