Book Review: Non-Conviction-Based Confiscation in Europe: Possibilities and Limitations on Rules Enabling Confiscation without a Criminal Conviction
| DOI | 10.1177/203228441600700311 |
| Date | 01 September 2016 |
| Author | Paul Kenneth Mwirigi Kinyua |
| Published date | 01 September 2016 |
| Subject Matter | Book Review |
New Journal of Eu ropean Crimina l Law, Vol. 7, Issue 3, 2016 381
BOOK REVIEW
Rui, J.P. and Seiber, U. (eds.) (2015) Non-conviction -Based Con fi scation in Europe:
Possibilities and Limitations on Rule s Enabling Confi scation without a Criminal
Conviction, vii + 304 pp., 41,20 EUR , Berlin: Duncker & Humblot ISBN 978 –3-
428–14883–7.
e book is comprised of ten (10) chapters by a total of twelve writers. e suitability
of the term “non-conviction based con scation (NCBC)” in the main title is probably
something that t he editors of this volume spent their t ime debating. In Chapter 1 by
John Peter Rui, the terms “civil forfeiture” a nd “civil asset forfeitu re (CAF)” that refer
to the same legal concept a s “non-conviction-based con scat ion” are mentioned (p.3).
One wonders whether “civil forfeiture” or “civil asset forfeiture” would have been a
more appealing tit le for this book, especially for readers that are not law yers. Further
on in chapter 2, Stefan D. Cassella explains why he prefers “non-conviction based
con scation” to “civil forfeiture” and CAF (p.14). Although he admits that “civil
forfeiture” is usually a well-understood legal concept within the con nes of national
law (for example the United States’ triple formula of ‘criminal forfeiture’, ‘civil
forfeiture’ and ‘administ rative forfeiture’), Cassella cautions that, “the term civil
means di erent things in di erent contexts” and, therefore, is li kely to generate
“confusion and unnecessary distraction” when transferred to “the internat ional
context” (p.14).
Chapter 1 performs the useful task of distinguishing NCBC measures (which are
civil proceedings in nature), from criminal proceedings. It highlights the tension-
ridden relationship between NCBC measure s and the right to property, and between
NCBC laws and protections such the presumption of in nocence (POI) that are present
both in national law and the European Convention on Human Rights (ECHR). is
discussion is developed further in chapter 6 by Johan Boug ht which focuses on the
relationship between the presumption of innocence under Article 6(2) of the ECHR
and NCBC measures. e concluding chapter by both editors provides an excellent
summary i n this regard.
Chapter 1 also initiate s the debate on whether NCBC measures are “preventive” or
“punitive” in nature and purpose. John Peter Rui discerns three main approaches
with regard to the desig n of NCBC legislation in Europe, i.e., the Italian approach, the
common law approach and the Scandinavian-German approach. In spite of this
categorisation, Rui insists t hat there is, “a common denominator for NCBC legislation
[in Europe]” because “con scation is possible without a cri minal conviction of an
o ender”. Chapter 6 introduces and explicate s a fourth approach, the EU approach.
In ch ap te rs 2, 3, 4, 5, a nd ch ap te r 8 , N CB C e xp er ie nc e i n fou r co un tr ie s i s d e sc ri be d,
i.e.: the USA, Germany, the United Kingdom and Ita ly, respectively. Both chapter 3 by
Ian Smith and chapter 8 w ritten by Alan Bacarese a nd Gavin Sellar are focused on t he
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