Confiscation Regime Research Articles

Confiscation and the Presumption of Innocence: Key Issues in ECtHR Case-law Considering the Contemporary Broadening of Confiscation’s Scope

Confiscation and the Presumption of Innocence: Key Issues in ECtHR Case-law Considering the Contemporary Broadening of Confiscation’s Scope

The discretion of the EU Member States in shaping the non-conviction based confiscation regime in the light of CJEU and ECHR case law

The research presented in the article aims to assess the scope of the normative freedom of EU Member States when implementing non-conviction based confiscation. This study was based on the case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECHR). The study shows that despite the broad discretion of the Member States resulting from the position of the CJEU, domestic regulation of this type of confiscation falls outside the scope of EU law; the extensive jurisprudence of the ECHR sets quite precise boundaries concerning the concept of confiscation without prior conviction. Thus, it limits the discretion of Member States in this regard, providing both safeguards for individuals and guidelines for national legislators that intend to develop non-conviction based confiscation regimes in their domestic legal system.

Localized effects of confiscated and re-allocated real estate mafia assets

Abstract Asset confiscation regimes are present throughout Europe. The Italian State implements a policy stipulating the confiscation of real estate assets from individuals convicted of mafia-related crimes and the re-allocation of these assets to new uses. The policy of confiscation (confisca) and re-allocation (destinazione) is meant to act as both an anti-mafia measure and a way to compensate local communities by converting real estate assets into public amenities. We evaluate the effects of this programme on local areas by estimating its impact on property values in the proximity of confiscations and re-allocations. The findings reveal a negative effect of confiscations and a positive effect of re-allocations on housing prices, mainly visible in mafia strongholds. Both of these trends can be observed in the time periods that directly follow instances of confiscation and re-allocation and appear to be highly localized. A drop in organized crime activity in the streets where re-allocations have occurred could account for some of the gain in property values caused by re-allocations. These findings have implications for the effectiveness of anti-mafia initiatives aimed at improving the quality of life in areas where criminal activity is more prevalent.

R v Andrewes: judgment day for CV fraudsters? Case commentary on the Supreme Court decision reported at [2022] UKSC 24

Crime pays. Therefore, it is paramount that offenders are not permitted to retain the illicit profits derived from their course of offending. That is the purpose of the criminal law confiscation regime, which applies to a plethora of different offences where the State confiscates the ill-gotten gains the offender has retained after sentencing. This commentary focuses on one of these offences, the colloquially named ‘CV fraud’. A relatively novel phenomenon in English law, CV fraud has come to the fore as a result of R v Andrewes, a recent Supreme Court decision. This commentary assesses this decision and ultimately concludes that while the Supreme Court’s approach is sound in principle, it does not provide a solution which encompasses the broader spectrum of cases falling within the category of CV fraud. The Andrewes approach to the calculation of ‘criminal benefit’ may therefore require considerable adaptation in future cases. Perhaps most importantly, the absence of discussion on causation leaves this corner of the confiscation regime a grey area. This paper sets out to offer a principled solution which might resolve this issue.

EU Asset Recovery and Confiscation Regime – Quo Vadis? A First Assessment of the Commission’s Proposal to Further Harmonise the EU Asset Recovery and Confiscation Laws. A Step in the Right Direction?

This article aims to explore the key novelties of the proposal recently published by the Commission for a new Directive on asset recovery and confiscation and to offer critical reflection on certain issues. The proposed Directive intends to replace the previous Directive 2014/42/EU on freezing and confiscation and the Council Decision 2007/845/JHA on Asset Recovery Offices. The present article first clarifies the legal bases chosen for the adoption of this new EU legal instrument and shortly addresses some issues of compliance with the subsidiarity and proportionality principle. Then offers an overall analysis of the most important provisions (a) on the different asset recovery stages (asset tracing and identification, management, freezing and confiscation) (b) on the safeguards for the persons affected by such measures and (c) on the newly introduced obligation for the Member States to create a national asset recovery strategy. The article sheds also some light on the relationship between the proposed Directive and the violation of EU restrictive measures and finally concludes with some critical remarks, in order to contribute to the legal dialogue ahead of the final adoption of the new Directive.

Label V. Content: The Problem of Non-Recognition of Civil Confiscation Orders in Europe

Abstract The paper discusses the problem of non-recognition of civil confiscation orders in Europe. Despite the breakthrough in international cooperation in the freezing and confiscation of crime proceeds in the criminal law domain, the formal approach in some European states destroys the potential of one of the most advanced instruments against crime proceeds—civil confiscation orders. The study offers a comparative analysis of the concepts of the confiscation of crime proceeds within and outside the frameworks of criminal proceedings. The analysis serves as the basis for the discussion of whether there is reasonable ground for the formal distinction between these concepts. The author concludes that the formal elimination of the civil confiscation orders has no substantial background. The analysis of both extended powers of confiscation in the criminal law domain in Europe and the Lithuanian Law on Civil Confiscation in the light of principles of proportionality and fair proceedings shows that civil confiscation regimes outside the framework of criminal proceedings may provide adequate safeguards to those provided in the confiscation regimes within criminal proceedings. The paper contributes to the discussion that is relevant to any European state that considers enacting or amending the civil confiscation legal framework or the legal regulation on recognising and executing crime proceeds confiscation orders. The paper elaborates on the approach that could enhance cooperation among European states in the prevention of organised crime.

The Analysis of Non-conviction-Based Property Confiscation and Forfeiture Regulatory Regime in Botswana

Abstract Civil (non-conviction based) property forfeiture and confiscation laws are an important aspect of legal regimes for combating organized crime. Although they have recently gained notoriety, property confiscation regimes have been available in some legal system since time immemorial. Botswana has recently enacted the Proceeds and Instruments of Crime Act (PICA) as the main source of law against financial and organized crimes including terrorist financing, money laundering, and racketeering. Furthermore, PICA provides for the regulatory framework relating to both criminal and civil assets confiscation or forfeiture. This article examines the substantive provisions relating to non-conviction-based assets forfeiture in Botswana. It underscores the sanctity of private property rights as the basis of having both substantive and procedural aspects for their deprivation. Furthermore, this article highlights the existence and importance of interim measures available to the state pending the finalization of confiscation proceedings. The prevailing legislative regime attempts to balance the interests of property owners, third parties, and that of the state. This article concludes that the civil forfeiture regime in Botswana reflects the full domestication of international standards.

Confiscation of proceeds of crime in Vietnam: improving the legal framework

PurposeThe purpose of this paper is to analyze the Vietnamese laws and practices concerning the confiscation of proceeds of crime, especially in view of Vietnam’s obligations to meet the international standards on money laundering and terrorist financing, set by the Financial Action Task Force and relevant international conventions that Vietnam ratified. To limit the scope of this paper, the analysis focuses on the confiscation of proceeds of domestic crimes that do not require international legal assistance. This paper concludes with recommendations for improving the legal framework on criminal asset recovery in Vietnam.Design/methodology/approachThis is a doctrinal study that considers the applicable legal framework. This study is supported by brief case studies of major cases involving the confiscation of proceeds of crime.FindingsVietnam has a functioning asset confiscation regime but gaps in the law, lack of financial investigation expertise and lack of focused investigative attention on asset preservation and confiscation are hampering its effectiveness. The key gaps can easily be closed with appropriate amendments to the law. These reforms should be combined with a dedicated skills development program to produce sufficient number of financial investigation experts and criminal asset management experts to support the regime. The training should extend to judicial officers to ensure an appropriate understanding of the asset confiscation law. Reforms such as these should follow on a comprehensive review of Vietnam’s law and practices relating to the confiscation and forfeiture of criminal assets. This review should extend to assets linked to the financing of terrorism and proliferation to ensure that Vietnam has a comprehensive regime to deal with criminal assets.Research limitations/implicationsThis paper draws on publicly available information regarding the confiscation of proceeds of crime in Vietnam. Little data is available on asset confiscation and that prevents an in-depth assessment of the regime.Originality/valueThis paper highlights gaps in the current asset confiscation regime and proposes reforms and approaches that will ensure a more effective asset confiscation regime for Vietnam.

Recuperación de activos en el sistema penal alemán: luces y sombras del actual régimen de decomiso de ganancias

In this paper, we intend to examine the highlights of the German Asset Recovery Act (Gesetz zur Reform der strafrechtlichen Vermögensabschöpfung), in force since 1st July 2017. It is a comprehensive law, with which the German legislator updated the confiscation regime in both its substantive and procedural aspects. Given the extent of this reform, we will focus on the confiscation of proceeds of crime, as it is the essence of asset recovery. Specifically, we will analyse those points of the reform emphasized by the legislator in the draft act. To this end, we will divide them between those that may seem more positive and those that are more controversial. In the first group, we will frame what refers to the position of the victims, the innovations for the decongestion of the criminal process and the regulation of the estimate of the proceeds. In the second group, we will study the new scope of the extended confiscation and the independent confiscation of assets of uncertain origin.

Developing external threats to offshore trusts: unexplained wealth orders and forfeiture of assets under the Forfeiture of Assets (Civil Proceedings) (Jersey) Law 2018

Abstract In recent years, authorities’ toolkits have been growing with alternative methods to tackle corruption and money laundering, enabling them to attack assets held within onshore and offshore trusts. Two new tools being utilised in this regard are unexplained wealth orders (UWOs) and the non-conviction confiscation regime under the Forfeiture of Assets (Civil Proceedings) (Jersey) Law 2018 (FoAL 2018). Both may affect trusts established in Jersey. Cases have now come before the courts, testing the scope of each of these mechanisms and providing an insight into the courts’ approach to combatting financial crime by way of civil proceedings. The use of a UWO was challenged in the recent English Court of Appeal case of National Crime Agency v Hajiyeva1 and the AG v Ellis proceedings2 in Jersey involved the application of the FoAL 2018. We consider each of these mechanisms and the cases involved in turn below and discuss the impact of these developing tools on the Jersey trust industry.

Confiscation And Asset Recovery: Better Tools To Fight Bribery And Corruption Crime

There is a global trend represented by the widespread application of confiscation of criminal proceeds, particularly those obtained as a result of corruption offences. Focusing on the Italian law, this article tries to address the following three questions: 1) Why are confiscation and asset recovery so important to fight bribery and corruption crime? In other words, what is the legitimate purpose of these measures? In other words, what is the legitimate purpose of these measures? 2) How can confiscation of the proceeds of corruption offences be accomplished? and 3) Are effective confiscation regimes constitutional or do they infringe upon individual rights and liberties? The article concludes that confiscation is a key tool for tackling corruption crime since it reduces the incentive to commit bribery by removing from bribe-givers or bribe-takers the fruits of their illicit acts. However, the “traditional” method of confiscation, which is limited to the property involved in the particular offence for which the defendant was convicted, is inadequate to deprive criminals who engaged in corruption offences of their ill-gotten gains. More powerful instruments, such as extended confiscation or non-conviction-based confiscation, are required for that purpose. These instruments are constitutional as long as they merely put wrongdoers back to the economic position they occupied before committing the crime. Such legal instruments serve as remedial measures and not as punishments, and thus their imposition does not trigger those special safeguards that the Constitution and human rights require for criminal prosecutions.

Asset confiscation in Europe – past, present, and future challenges

Purpose The purpose of this paper is to paint a general picture of the asset confiscation regimes used in Europe and to outline potential challenges, practical and related to issues of principle, associated with the current development with regard to the confiscation of the proceeds of crime and criminals’ proceeds. Design/methodology/approach The paper endeavours to analyse the various steps of the confiscation process, and the various approaches to the confiscation of proceeds of crime and criminals’ proceeds from a holistic perspective. The findings of the paper are based on a literature review along with a legal analysis of the existent legal frameworks. Findings It is suggested that the efficiency of asset confiscation should be looked at from a holistic perspective involving the entire confiscation process, and not only focus on the confiscation powers awarded to the courts. Challenges relating to efficiency exist along the entire process, from the stage of financial investigations to the enforcement stage. Some of the methods used for confiscating criminal proceeds are becoming very far-reaching and raise concerns related to basic principles of criminal law and criminal procedural law. Research limitations/implications This paper is not based on empirical research relating to, for example, the efficiency of confiscation. More empirical research would, however, be welcome in this field. Practical implications The paper suggests that the efficiency of asset confiscation is contingent on the entire confiscation chain functioning efficiently. Before new and more repressive measures are introduced, the existing legal framework should be fully deployed and the concrete needs for new tools clearly delineated. Originality/value The paper analyses confiscation with a view to the entire chain rather than merely looking at a particular confiscation scheme.

Confiscation as criminal law (or what)? On how the ill-advised discussion about “the” legal “nature” of confiscation obfuscates what really needs to be discussed

Confiscation – especially of the proceeds of crime – has turned into a key instrument in international, European and German efforts to curb serious crime (e.g. organized, but also economic crime). Central to the controversies about the legitimacy of confiscation is its disputed legal nature: Is it criminal law (or what)? By drawing on a major 2017 reform of the German confiscation regime as a case study, this article illustrates that the discussions about the but punitive or but non-punitive (e.g. preventive) rationales of confiscation are ill-advised as they do not account for the normative openness of confiscation. These discussions – as they are prompted especially by constitutional criminal law and its doctrines – obfuscate the unsettling political questions that are foundational to modern developments. E.g. if a commonwealth can still and indeed must afford unrestrictable fundamental rights (like the presumption of innocence) in order to pre-empt the rise of an authoritarian regime, even if this means that serious crime goes widely unchecked and can hence possibly undermine the democratic state. This article will not answer such questions. But it will bring them to the fore so that we have a frank debate about the very policy, polity and politics framework of the administration of “criminal” (or what?) justice in the age of confiscation.

Upsetting the Balance? The Legality of Vessel Confiscation under the losc after the M/V Virginia G Case

Abstract Although a delicate ‘balance’ was struck between coastal State rights and flag State freedoms in the exclusive economic zone (eez) during negotiations of the losc, uncertainty persists around the specific content of these rights and freedoms. This uncertainty has been highlighted through numerous legal disputes regarding the confiscation of foreign fishing vessels for eez fisheries offences—now a common feature in coastal State maritime enforcement regimes. Amidst longstanding ambiguity around the legality of vessel confiscation regimes and their permissible design, M/V Virginia G was the first itlos decision to consider these questions directly. This article evaluates whether the decision provided greater clarity on these questions. In doing so, it reflects on the strikingly altered realities of fishing practices since the negotiation of the losc, and whether the Tribunal’s approach reflects an appropriate application of the eez ‘balance’ in light of contemporary circumstances faced by the international community today.

The Law and Practice of Criminal Asset Forfeiture in South African Criminal Procedure: A Constitutional Dilemma

The deprivation of the proceeds of crime has been a feature of criminal law for many years. The original rationale for the confiscation of criminal assets at international level was the fight against organised crime, a feature of society described by the European Court of Human Rights as a "scourge" so that the draconian powers which are a feature of confiscation regimes around the world have been approved in circumstances which otherwise might have caused governments considerable difficulties before the international human rights tribunals.[1] The primary objective of this article is to determine if the asset forfeiture measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the "spirit, purport and object" of the South African Constitution.[2] This article attempts to answer three questions. Firstly, why is criminal asset forfeiture important to law enforcement? Secondly, in which circumstances can property be forfeited and what types of property are subject to forfeiture? Thirdly, how is forfeiture accomplished, and what are its constitutional ramifications?
 
 
 
 

“The Principles of Patrimony Due Process of Law: The Punitive Confiscation and the Protection of Third Parties Misrelated to the Crime”

main motive for cross-border organised crime, including mafia-type criminal organisations, is financial gain. As a consequence, competent authorities should be given the means to trace, freeze, manage and confiscate the proceeds of such crime. However, the effective prevention of and fight against organised crime should be achieved by neutralising the proceeds of crime and should be extended, in certain cases, to any property derived from activities of a criminal nature. Organised criminal groups operate without borders and increasingly acquire assets in Member States other than those in which they are based. There is an increasing need for effective international cooperation on asset recovery and mutual legal assistance. Among the most effective means of combating organised crime is providing for severe legal consequences for committing such crime, as well as the effective detection and the confiscation of the instrumentalities and proceeds of crime. Although existing statistics are limited, the amounts recovered from proceeds of crime in the Unionseem insufficient compared to the estimated proceeds. Studies have shown that, although regulated by Unionand national law, confiscation procedures remain underused. The adoption of minimum rules will approximate the Member States' freezing and confiscation regimes, thus facilitating mutual trust and effective cross-border cooperation. The Stockholm Programme and the Justice and Home Affairs Council Conclusions on confiscation and asset recovery, adopted in June 2010, emphasise the importance of a more effective identification, confiscation and re-use of criminal assets. In this article, we will focus on the recent Directive of the EU Parliament and of the Council on freezing and confiscation of proceeds of crime in the EU (3 April 2014).

The Law and Practice of Criminal Asset Forfeiture in South African Criminal Procedure: A Constitutional Dilemma

The deprivation of the proceeds of crime has been a feature of criminal law for many years. The original rationale for the confiscation of criminal assets at international level was the fight against organised crime, a feature of society described by the European Court of Human Rights as a scourge so that the draconian powers which are a feature of confiscation regimes around the world have been approved in circumstances which otherwise might have caused governments considerable difficulties before the international human rights tribunals. 1 The primary objective of this article is to determine if the asset forfeiture measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the spirit, purport and object of the South African Constitution . 2 This article attempts to answer three questions. Firstly, why is criminal asset forfeiture important to law enforcement? Secondly, in which circumstances can property be forfeited and what types of property are subject to forfeiture? Thirdly, how is forfeiture accomplished, and what are its constitutional ramifications? Keywords : Criminal asset forfeiture; criminal procedure; confiscation; evidence; restraint stage; confiscation and realisation stage; constitutional; assets

The Law and Practice of Criminal Asset Forfeiture in South African Criminal Procedure: A Constitutional Dilemma

The deprivation of the proceeds of crime has been a feature of criminal law for many years. The original rationale for the confiscation of criminal assets at international level was the fight against organised crime, a feature of society described by the European Court of Human Rights as a "scourge" so that the draconian powers which are a feature of confiscation regimes around the world have been approved in circumstances which otherwise might have caused governments considerable difficulties before the international human rights tribunals.1 The primary objective of this article is to determine if the asset forfeiture measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the "spirit, purport and object" of the South African Constitution.2 This article attempts to answer three questions. Firstly, why is criminal asset forfeiture important to law enforcement? Secondly, in which circumstances can property be forfeited and what types of property are subject to forfeiture? Thirdly, how is forfeiture accomplished, and what are its constitutional ramifications?Keywords: Criminal asset forfeiture; criminal procedure; confiscation; evidence; restraint stage; confiscation and realisation stage; constitutional; assets

Criminal benefit, the confiscation order and the post-conviction confiscation regime

Governments and law enforcement agencies around the world seek to identify and confiscate the ‘proceeds of crime’ on the assertion that doing so will deter offending and symbolise to citizens and communities that ‘crime does not pay’. In the UK such assertions have underpinned the enactment of legislation, the investment in law enforcement agents and the development of wide ranging new technologies to facilitate the identification of assets and their recovery. This paper critically considers two key concepts which fundamentally drive the post-conviction confiscation regime in the UK. First, ‘criminal benefit’ which is the amount that a defendant is adjudged to have made from ‘criminal conduct’. Second, the ‘available amount’ which is the amount that the state hopes to recover from a defendant via the court ordered ‘confiscation order’. In so doing, this paper explores the assumptions at the heart of the 2002 Proceeds of Crime Act and their application in practice, concentrating on the nature of the powers accorded to financial investigators and how these powers have been interpreted and applied. It is argued that far from representing the ‘profit’ generated from crime these values are constructs founded in the relationship between legislation, the discretional practice of police officers and financial investigators, organisational restrictions and constraints and informal negotiation and compromise between the defence and prosecution. This has implications for both conceptualising the nature of the post-conviction confiscation regime as well as for shaping what the state might expect to recover from defendants.

Cayman Islands: Report on the Observance of Standards and Codes--FATF Recommendations for Anti-Money Laundering and Combating the Financing of Terrorism

This paper focuses on observance of standards and codes on the Financial Action Task Force (FATF) recommendations for antimoney laundering and combating the financing of terrorism (AML/CFT) for the Cayman Islands. The assessment reveals that the Cayman Islands’s legal framework for combating money laundering and terrorism financing is comprehensive. All designated categories of offences enumerated in the FATF 40 Recommendations are predicate offences under the Cayman law. The criminalization of FT is in accordance with FATF requirements. The confiscation regime meets most standards and is effective.