Asset confiscation in Europe – past, present, and future challenges
| Pages | 526-548 |
| Date | 01 April 2019 |
| Published date | 01 April 2019 |
| DOI | https://doi.org/10.1108/JFC-04-2018-0043 |
| Author | Johan Boucht |
Asset confiscation in
Europe –past, present, and
future challenges
Johan Boucht
Department of Public Law, University of Oslo, Oslo, Norway
Abstract
Purpose –The purpose of this paper is to paint a general pictureof the asset confiscation regimes used in
Europe and to outline potential challenges, practical and related to issues of principle, associated with the
current developmentwith regard to the confiscation of the proceeds ofcrime 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 analysisof the existent legal frameworks.
Findings –It is suggested that the efficiency of asset confiscations hould be looked atfrom a holisticperspective
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 researchwould, however, be welcome in this field.
Practical implications –The paper suggests that the efficiencyof asset confiscation is contingent on the
entire confiscationchain functioning efficiently. Before new and more repressivemeasures are introduced, the
existinglegal framework should be fully deployed andthe concrete needs for new tools clearly delineated.
Originality/value –The paper analyses confiscation with a view to the entire chain rather than merely
lookingata particularconfiscation scheme.
Keywords Asset recovery, Asset management, Proceeds of crime, Asset confiscation,
Financial investigations, Safeguards
Paper type General review
1. Introductory remarks
It is a basic point of departure in criminaljustice policy in most countries that no perpetrator
should profit from his crime. The moral imperativethat no one should benefit from crime is
generally strong. Economicallymotivated crime, such as corruption, seriousfraud, drug and
people trafficking and so on, have adverse effects on many parts of society, and the illicit
profits generated through these activities may be considerable. Not only may criminal
wealth be morally reproachable, butit may also undermine financial structures of our
society. It is therefore importantto have in place mechanisms that facilitate effective
confiscation of illicit profits generated by unlawful conduct, in some cases even where the
individual has not beenconvicted of a criminal offence.
These mechanisms should be constructed in a way that facilitates effective implementation
and achievement of their objectives. However, when implementing confiscation schemes, which
may have considerable adverse effects on the individuals subjected to them, it is crucial that
also the rights of these individuals are safeguarded in an effective manner.
JFC
26,2
526
Journalof Financial Crime
Vol.26 No. 2, 2019
pp. 526-548
© Emerald Publishing Limited
1359-0790
DOI 10.1108/JFC-04-2018-0043
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/1359-0790.htm
During the past two decades or so, the confiscation of criminal proceeds has been
devoted considerable politicalattention, and ever broader confiscation schemes have been
viewed in many countries as necessary means of combating acquisitive crime, particularly
organised crime and serious economic crime[1]. This development has been supplemented
by a considerable expansion of available anti-money laundering measures that seek to
prevent offenders from concealing the predicate offences from which the proceeds derive
and to prevent the offenders from benefitingfrom their proceeds[2].
In Europe, the EU has been an important player in developing confiscation law for the
purpose of making confiscation within the EU more effective (Simonato, 2017). The EU has
been particularly active in the field of substantive approximation of confiscation regimes,
and for creating a procedural infrastructure that intends to enhance horizontal cooperation
between the EU member states, for example by facilitating mutual recognition of freezing
and confiscation orders(Boucht, 2017).
2. The broader picture
Thetermconfiscation refers to a long process potentially resulting in the deprival of
the confiscation subject’s ill-gotten gains. This chain can be said to involve five
phases. For the confiscation regime to be effective, the whole chain must function
efficiently.
A crucial first part is the investigative phase. The financial investigation purports to
identify and track criminal assets not only for the purpose of subsequent confiscation but
also for the purpose of investigating a particular offence. In the words of the FATF, a
financial investigation is an enquiry into the financial affairs related to a criminal activity,
with a view to:
identifying the extent of criminal networks and/or the scale of criminality;
identifying and tracing the proceeds of crime, terrorist funds or any other assets
that are, or may become, subject to confiscation; and
developing evidence which can be used in criminal proceedings (such as money
laundering, corruption or fraud)[3].
The efficacy of asset confiscation regimes is therefore contingent on the prior financial
investigationsbeing thoroughly and efficiently conducted.
Within the EU, cooperation in financial investigations often involves the exchange of
financial intelligence as a first stage to the gathering of actual evidence. An important
channel for information exchange within the EU is through the network of asset recovery
offices (AROs) established in member states[4]. The purpose of establishing AROs was to
create national authorities betweenwhich information would flow freely and swiftly. There
are currently 28 AROs in place. Another way of obtaining information is through the
Camden Asset Recovery Interagency Network (CARIN), a worldwide informal network of
expert practitioners working with asset confiscation[5]. CARIN currently has 53 registered
member jurisdictions, including 27 EU MemberStates and nine international organisations
(such as Eurojust, the InternationalCriminal Court, UNODC and Interpol). A third available
path for obtaininginformation (in the EU) by way of establishing a Joint InvestigationTeam
(JIT) pursuant to Art. 13 of the EU’s Convention on Mutual Assistance in CriminalMatters
of 2000[6].
Having traced and identified the assets in question,there is often a need to protect them
from being dissipated, or even destroyed, by the suspect(s). The second phase is therefore
closely connected with the former andinvolves the temporary freezing or seizure of
Asset
confiscation in
Europe
527
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