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

Author:Johan Boucht
Position:Department of Public Law, University of Oslo, Oslo, Norway
Pages:526-548
SUMMARY

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... (see full summary)

 
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Asset conscation 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 conscation regimes used in
Europe and to outline potential challenges, practical and related to issues of principle, associated with the
current developmentwith regard to the conscation of the proceeds ofcrime and criminalsproceeds.
Design/methodology/approach The paper endeavours to analyse the various steps of the
conscation process, and the various approaches to the conscation of proceeds of crime and criminals
proceeds from a holistic perspective.The ndings of the paper are based on a literature review along with a
legal analysisof the existent legal frameworks.
Findings It is suggested that the efciency of asset conscations hould be looked atfrom a holistic perspective
involving the entire conscation process, and not only focus on the conscation powers awarded to the courts.
Challenges relating to efciency exist along the entire process, from the stage of nancial investigations to the
enforcement stage. Some of the methods used for conscating 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 efciency of conscation. More empirical researchwould, however, be welcome in this eld.
Practical implications The paper suggests that the efciencyof asset conscation is contingent on the
entire conscationchain functioning efciently. 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 conscation with a view to the entire chain rather than merely
lookingat a particularconscation scheme.
Keywords Asset recovery, Asset management, Proceeds of crime, Asset conscation,
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 prot from his crime. The moral imperativethat no one should benet from crime is
generally strong. Economicallymotivated crime, such as corruption, seriousfraud, drug and
people trafcking and so on, have adverse effects on many parts of society, and the illicit
prots generated through these activities may be considerable. Not only may criminal
wealth be morally reproachable, but it may also undermine nancial structures of our
society. It is therefore important to have in place mechanisms that facilitate effective
conscation of illicit prots 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 conscation 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 conscation of criminal proceeds has been
devoted considerable political attention, and ever broader conscation 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 benetingfrom their proceeds[2].
In Europe, the EU has been an important player in developing conscation law for the
purpose of making conscation within the EU more effective (Simonato, 2017). The EU has
been particularly active in the eld of substantive approximation of conscation 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 conscation orders(Boucht, 2017).
2. The broader picture
Thetermconscation refers to a long process potentially resulting in the deprival of
the conscation subjects ill-gotten gains. This chain can be said to involve ve
phases. For the conscation regime to be effective, the whole chain must function
efciently.
A crucial rst part is the investigative phase. The nancial investigation purports to
identify and track criminal assets not only for the purpose of subsequent conscation but
also for the purpose of investigating a particular offence. In the words of the FATF, a
nancial investigation is an enquiry into the nancial 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 conscation; and
developing evidence which can be used in criminal proceedings (such as money
laundering, corruption or fraud)[3].
The efcacy of asset conscation regimes is therefore contingent on the prior nancial
investigationsbeing thoroughly and efciently conducted.
Within the EU, cooperation in nancial investigations often involves the exchange of
nancial intelligence as a rst stage to the gathering of actual evidence. An important
channel for information exchange within the EU is through the network of asset recovery
ofces (AROs) established in member states[4]. The purpose of establishing AROs was to
create national authorities betweenwhich information would ow 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 conscation[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 EUs Convention on Mutual Assistance in CriminalMatters
of 2000[6].
Having traced and identied 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 and involves the temporary freezing or seizure of
Asset
conscation in
Europe
527

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