Prosecution for illicit enrichment: the Lithuanian perspective

Publication Date02 May 2017
Pages203-214
Date02 May 2017
DOIhttps://doi.org/10.1108/JMLC-07-2016-0029
AuthorSkirmantas Bikelis
SubjectAccounting & Finance,Financial risk/company failure,Financial compliance/regulation,Financial crime
Prosecution for illicit enrichment:
the Lithuanian perspective
Skirmantas Bikelis
Law Institute of Lithuania, Vilnius, Lithuania
Abstract
Purpose The purpose of this paper is to present and analyse the issues with which Lithuania is faced
through its introduction of a modern legal mechanism for a more efcient conscation of the proceeds of
crime – the criminalization of illicit enrichment.
Design/methodology/approach The paper analyses issues raised in the Constitutional Court of
Lithuania concerning the constitutionality of the country’s Criminal Code, as amended, by means of which
illicit enrichment has been criminalized. Then, developments in and statistics for prosecutions and convictions
for illicit enrichment are presented, and the legal issues that have been raised in the practice of the higher
courts of Lithuania are analysed.
Findings The concept of the criminalization of illicit enrichment proves to be less promising than that of
civil forfeiture. First, it is contentious in the context of proportionality and ultima ratio. Second, it may infringe
upon the prohibition of self-incrimination. Third, it appears that collecting sufcient evidence of illicit
enrichment on the criminal standard of proof is an extremely difcult task for the prosecution.
Originality/value Lithuania was the rst European Union Member State to introduce general criminal
liability for illicit enrichment. This analysis of the ve years since the implementation of the enabling
legislation should provide useful insights for the other countries considering introducing modern legal
instruments to bring about a more effective control of illicit enrichment, as well as inspire additional, vital
deliberation on the matter.
Keywords Evidence, Civil forfeiture, Proportionality, Illicit enrichment
Paper type Research paper
Introduction
Article 20 of the United Nations Convention Against Corruption (UNCAC) denes “illicit
enrichment” as a “signicant increase in the assets of a public ofcial that he or she cannot
reasonably explain in relation to his or her lawful income” (UNGA, 2005). UNCAC was
ratied by the Republic of Lithuania in 2006. The European Commission (2008) advocated
that European Union (EU) Member States should consider options to introduce efcient legal
instruments, such as civil forfeiture and criminalization, with regard to illicit enrichment.
Yet, Directive 2014/42/EU (European Union, 2014), which represents a conservative
compromise between EU Member States, does not mention any such instruments. However,
every Member State is entitled to go beyond the minimum requirements of the Directive, and
a number of the newer ones have attempted to implement advanced legal instruments to
better control illicit enrichment.
In December 2010, Lithuania introduced criminal liability for illicit enrichment (Republic
of Lithuania Criminal Code, 2000 [as amended 2010], article 189
1
), while another four new EU
Member States have introduced civil forfeiture in recent years: Romania (2007), Slovakia
(2011), Slovenia (2011) and Bulgaria (2012)[1]. Both legal concepts – the criminalization of
illicit enrichment and civil forfeiture – are supposed to provide a legislative framework for
the conscation of wealth alleged to be the proceeds of illegal activities (or even crimes),
when the evidence that, rst, a person has committed a crime for prot and, second, he or she
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/1368-5201.htm
Prosecution
for illicit
enrichment
203
Journalof Money Laundering
Control
Vol.20 No. 2, 2017
pp.203-214
©Emerald Publishing Limited
1368-5201
DOI 10.1108/JMLC-07-2016-0029

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