Regulation (EU) 2018/1805 on the mutual recognition of freezing and confiscation orders: A headlong rush into Europe-wide harmonisation?
| DOI | http://doi.org/10.1177/20322844221104916 |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2022, Vol. 13(2) 198–215
© The Author(s) 2022
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DOI: 10.1177/20322844221104916
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the mutual recognition of
freezing and confiscation
orders: A headlong rush into
Europe-wide harmonisation?
Sandra Oliveira e Silva
CIJE & CJS, Faculty of Law, University of Porto, Portugal
Abstract
In a Europe without borders, where assets and capital move freely, the effectiveness of freezing and
confiscation orders presupposes close cooperation between Member States. Normally harmo-
nisation precedes mutual recognition. Regulation (EU) 2018/1805 brings about a new strategy for
increasing the effectiveness of asset recovery: the aim is to achieve harmonisation through mutual
recognition. This article briefly reviews the evolution of Union law on confiscation orders, discusses
the scope of the new Regulation, and seeks to anticipate the difficulties that its application may entail
as regards the respect for fundamental rights.
Keywords
42/EU, procedural safeguards
Introduction: Confiscation as a strategy of criminal policy against
illicit profit
The confiscation of ‘dirty money’emerging from criminal activities has become the key element of
the international political agenda of the last three decades. Proof of this are the numerous
A Portuguese language version of this article is published in CLR (see Sandra Oliveirae Silva, ‘O Regulamento (UE) 2018/1805
sobre o reconhecimento m´
utuo das decisões de apreensão e perda: um sistema de regras para “reconhecer o
desconhecido”’ (2020) 5(3) CLR 107).
Corresponding author:
Sandra Oliveira e Silva, CIJE & CJS, Faculty of Law, University of Porto, Rua dos Bragas, 223, Porto 4050-123, Portugal.
Email: sosilva@direito.up.pt
international conventions that require States to provide for asset freezing and confiscation measures
as a strategic dimension of the fight against particularly insidious criminal phenomena, such as
corruption, drug trafficking, terrorism and other forms of organised crime. Further proof of the
importance of confiscation are the multiple scientific studies and doctrinal analyses that have
proliferated on the subject, forming an unstoppable stream of articles, collective works and
monographs that no jurist, however committed and diligent, will today be able to cover in full.
The reasons for this predilection are easy to explain. Knowing the fabulous economic gains
generated by certain forms of criminality, the belief quickly became widespread that the most
effective form of prevention involves the elimination of the economic incentive to crime, depriving
criminals of the motive of their conducts: profit. The general intuition about the preventive ef-
fectiveness of confiscation is at first sight well founded, but it is not supported by solid empirical
data. As in general regarding the preventive effectiveness of punishment, there are no studies
establishing a reliable link between confiscation and deterrence. It may well be that the slogan that
inspires this new criminal policy orientation, ‘hit them where it hurts the most’, is just that: an
unbearable platitude.
1
In any case, the identification of money flows, the freezing of financial resources or other assets
and their final confiscation depend on the creation of procedural mechanisms that facilitate judicial
cooperation among States. The need for articulation is more evident in situations of transnational or
plurilocalised criminality. When the crime establishes a relevant connection with more than one
legal system, it is almost inevitable that several State agencies are called upon to collaborate in the
criminal prosecution –be it in the surrender of suspects, the questioning of witnesses or the
gathering of other evidence. But even if the offence does not have a cross-border dimension, the
concealment of its proceeds, especially if they are substantial, rarely stops at State borders. The
strengthening of judicial cooperation mechanisms has therefore become an imperative of
globalisation.
Within the legal and political framework of the European Union, the above considerations (and
concerns) take on amplified resonance. The articulation of the various national agencies in the
response to crime is a condition for the area of freedom, security and justice without internal borders
that the Treaties promise citizens (Article 3(2) of the TEU).
2
For this promise to be fulfilled, the free
movement of goods, persons, services and capital must necessarily be matched by coordination
between the various national authorities.
Usually, harmonisation precedes mutual recognition. Regulation (EU) 2018/1805
3
represents
a new strategy in promoting the effectiveness of asset recovery: it aims to achieve harmonisation
through mutual recognition. This article intends to shed light on some of the most problematic
aspects of the Regulation, not only from the point of view of the effectiveness of the procedures, but
especially in terms of the protection of the rights of the affected persons. To this end, it reviews the
key moments in the development of EU law on confiscation. The material scope of the Regulation is
then discussed and, finally, the main difficulties from the point of view of respect for fundamental
rights that its application may entail are identified.
1. For a critical view on the moto see Hans Nelen, ‘Hit them where it hurts the most’The proceeds-of-crime approach in the
Netherlands’(2004) 41 CL&SC 517,517.
2. Consolidated Version of the Treaty on European Union [2012] OJ C323/13 (hereafter TEU).
3. Regulation (EU) 2018/1805 of the European Parliament and of the Council on the mutual recognition of freezing orders
and confiscation orders [2018] OJ L303/1.
Silva 199
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