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4622 results in Criminal Law

Page 89 of 232

Proving Bribery, Fraud and Money Laundering in International Arbitration
  • On Applicable Criminal Law and Evidence
  • Kathrin Betz
  • Published online:
    30 August 2017
    Print publication:
    31 August 2017
  • Over the past few decades, arbitration has become the number one mechanism to settle international investment and commercial disputes. As a parallel development, the international legal framework to combat economic crime became much stronger within the fields of foreign public bribery, private bribery, fraud and money laundering. With frequent allegations of criminal conduct arising in international arbitration proceedings, it is crucially important to consider how such claims can be proven. This book analyses relevant case law involving alleged criminal conduct within international arbitration and addresses the most pressing issues regarding applicable criminal law and evidence. It is an essential resource for practising lawyers and academics active in the field of international investment and commercial arbitration.

  • Chapter 7 - Directive 2014/42/EU: A Reform with Significant Legal Changes?

  • from Part II - Substantive Provisions on Extended Confiscation
  • Malin Thunberg Schunke
  • Book:
    Extended Confiscation in Criminal Law
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    21 August 2017, pp 189-222

  • Summary

    THE NECESSITY OF A NEW EU INSTRUMENT ON CONFISCATION

    At the adoption of Directive 2014/42/EU, the EU legislator primarily argued that the national and international confiscation regimes were “underdeveloped and underutilised”. This conclusion was reached even though it was admitted during the legislative procedure that only limited statistical evidence is available for the actual confiscation practices. In Recital (4) of Directive 2014/42/EU it is therefore stated that the amounts recovered from proceeds of crime in the Union seem insufficient compared to the estimated proceeds. It can be questioned whether it is acceptable that the Union legislator justifies a new instrument with stronger confiscation powers on such a poor statistical basis.

    In fact, if the instruments on confiscation presently in force have been “poorly implemented” and seldom used in the Member States, it is quite difficult to argue that the existing rules are insufficient perse. In this respect one must agree with the German Bundesrechtsanwaltskammer:

    Es wäre ohne weiteres möglich, in den Mitgliedstaaten Daten dazu zu erheben, welche Erträge aus Straftaten dort anfallen und in welcher Höhe diese Erträge eingezogen werden. Dass dies in der Vergangenheit nicht geschehen ist, berechtigt die Kommission nicht dazu, allein aufgrund eines gefühlten Defizits eine neue Maßnahme vorzuschlagen. Mangels Daten ist in keiner Weise feststellbar, ob die Ma ßnahme überhaupt erforderlich und damit verhältnismä ßig ist.

    The difficulties in assessing the real extent of what criminal proceeds are actually being confiscated with the EU in the area of organised crime were further confirmed in the OCP project (Organised Crime Portfolio), which was funded with support from the European Commission. This research project published its final report in 2015, and inter alia concluded that the lack of statistics as well as the differences among the confiscation regimes make it almost impossible to assess and compare the extent of the recovery of criminal assets and to produce a solid statistical analysis.

Extended Confiscation in Criminal Law
  • National, European and International Perspectives
  • Volume 23
  • Malin Thunberg Schunke
  • Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    21 August 2017
  • Extended Confiscation in Criminal Law provides a comprehensive analysis of the most recent developments in the field. With its main focus on the EU, this multi-faceted study enhances the reader's understanding of the strategy of confiscating assets, giving detailed answers to the questions of how the confiscation regimes could be improved and which changes are proportionate to the objectives pursued. The book begins by examining extended confiscation from the national perspective, presenting the substantive criteria for this power of confiscation. It focuses on three main jurisdictions - England and Wales, Germany and Sweden - and explores how domestic legislation is drafted and applied in their differing models. Analysing Directive 2014/42/EU on the Freezing and Confiscation of Instrumentalities and Proceeds of Crime in the European Union, it seeks to answer the questions of whether harmonisation truly increases efficiency or if other reforms may be more effectively. Furthermore, this book considers whether increased powers of extended confiscation strike the right balance between the interest of law enforcement and the protection of fundamental human rights. The notion of extended confiscation is then set in its broader context, looking from an international perspective. A holistic analysis of the regime for handling transnational confiscation cases is given, asking if it is possible to trace and search for assets abroad, or execute final orders in other states. This book is of great interest for academics as well as national and international legislators. It may also be used as a handbook for practitioners handling cross-border confiscation cases. DR MALIN THUNBERG SCHUNKE is an Associate Professor in Criminal Law at the University of Uppsala. She holds an LLD in Criminal Law (Uppsala University) and an LLM in Criminology and Criminal Justice (King's College, London). Her research interests lie in national and international criminal law, particularly EU judicial cooperation in criminal matters and human rights. She has been an Apprentice Judge at Stockholm City Court and has been working for several years as an Assistant Prosecutor at the Prosecuting Office Stockholm. 2Intersentia

  • Chapter 10 - International Cooperation in Order to Seize or Freeze Assets

  • from Part III - The Legal Framework for International Cooperation
  • Malin Thunberg Schunke
  • Book:
    Extended Confiscation in Criminal Law
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    21 August 2017, pp 263-280

  • Summary

    THE LEGAL FRAMEWORK

    REQUESTS FOR MLA

    When assets have been identified and located, provisional coercive measures may be necessary in order to avoid that a suspect disposes of the assets before the court has made a final decision on confiscation. An efficient regime of cross-border seizure or freezing of any assets identified as criminal proceeds is crucial. The seizure/freezing of property may be necessary in order both to secure evidence needed to support a motion for confiscation and/or to secure property in order to be able to execute a final confiscation order.

    International provisions allowing for requests regarding coercive measures are found in a number of instruments on cooperation in criminal matters, for example Articles 1 and 5 of the European Convention on Mutual Assistance in Criminal Matters (1959) (hereafter the “1959 Convention”), Article 13(2) United Nations Convention against Transnational Organized Crime (2000), Article 11 European Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990) and Article 21 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (2005). There is often a rather broad range of refusal grounds regarding such requests, and a common requirement in international conventions on MLA is that a demand for double criminality is set up for coercive measures like seizure. According to Article 5 of the 1959 Convention, the States are allowed to set up the following requirements for the execution of a request for search or seizure of property:

  • – a requirement of double criminality,

  • – a requirement that the criminal offence is an extraditable offence in the requested State, and/or

  • – that the execution of the request is compatible with the law of the requested State.

    • Within the EU, the Schengen Convention has modified the right to reservations regarding Article 5 of the 1959 Convention, and has limited the scope for refusing requests for international requests for MLA in this respect.

  • Chapter 1 - Background and Scope of the Study

  • from Part I - Introduction
  • Malin Thunberg Schunke
  • Book:
    Extended Confiscation in Criminal Law
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    21 August 2017, pp 3-22

  • Summary

    GO FOR THE MONEY! : THE DEVELOPMENT AND EXPANSION OF A NEW LAW ENFORCEMENT STRATEGY

    In the 1980s, law enforcement authorities, especially in the USA, started to focus more intensively on a strategy “to go for the money” and to pay increased attention to the financial sides of criminality. This was not a new method; already in the 1930s the prosecution of Al Capone for tax evasion was the result of such focus. However, in the 1980s a criminal justice policy with the purpose of taking away the financial incentive to commit crime was promoted more intensively as an effective strategy against serious crime. The rationale for this development was that the more traditional law enforcement methods, whereby criminal offences are investigated and the offender is punished by a criminal sanction, were not regarded as sufficient to deal with new and more advanced forms of criminality. It was argued that the strategy to take away illicit proceeds would lead to a general deterrence from crime, as the defendants would be prevented from benefitting financially from crime, and from reinvesting illegal assets into new criminality. In addition, society would be compensated as the State would be reimbursed the costs of combating crime. More far-reaching powers within a profit-based law enforcement strategy were furthermore motivated by the necessity to preserve public confidence in the white economy by sending out a signal that crimes should not pay. The following quotation from the English legislative process illustrates the “moral” arguments which were used in many States at this time:

    Acquisitive crime affects everyone in society. Victims whose homes are burgled, whose cars are stolen, who lose their savings to fraudsters or are robbed in the street all have their lives inextricably altered. The rest of the law-abiding community, to a greater or lesser extent, lives in the fear of being victimised and suffers the indirect impact through rising prices, higher taxes and increased insurance premiums.

  • Chapter 12 - The Proposal for a Regulation on Mutual Recognition

  • from Part III - The Legal Framework for International Cooperation
  • Malin Thunberg Schunke
  • Book:
    Extended Confiscation in Criminal Law
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    21 August 2017, pp 303-322

  • Summary

    THE BACKGROUND TO THE PROPOSAL

    On 21 December 2016, the European Commission issued a package of legislative measures aimed at strengthening the EU ‘ s capacity to fight the financing of terrorism and organised crime. The focus of this action was three pieces of legislation in the area of money laundering, illicit cash movement and the freezing and confiscation of assets.

    In this context, the Proposal for a Regulation on Mutual Recognition was presented. The purpose of this proposal is to provide for one single legal instrument on the recognition and execution of freezing orders and confiscation orders within the EU. The Proposal for a Regulation on Mutual Recognition is therefore intended to establish a comprehensive framework for international cooperation covering both the freezing and confiscation of proceeds of crime. It lays down the rules under which a Member State must recognise and execute foreign freezing and confiscation orders issued within the framework of criminal proceedings (Article 1). Accordingly, the regulation would replace the FD on Freezing Orders and the FD on Confiscation Orders for the Member States that are bound by these instruments. The framework decisions would, though, continue to apply in relation to those Member States that are not bound by this Regulation. Denmark has announced that it will not take part in the Regulation, and the UK and Ireland may choose whether to opt in.

    THE MOTIVES FOR EU ACTION

    At the adoption of Directive 2014/42/EU, the Council and the European Parliament both called for further legislative action in order to improve the cross-border enforcement of freezing and confiscation orders. The Proposal for a Regulation on Mutual Recognition is thus a direct answer to these calls. There are many other reasons given by the European Commission for a new instrument. It is inter alia highlighted that:

    However, and although existing statistics are limited, the amount of money currently being recovered from proceeds of crime within the EU is only a small proportion: 98.9% of estimated criminal profits are not confiscated and remain at the disposal of criminals. A functioning asset recovery regime is a precondition if more criminal assets are to be seized. This includes an efficient mutual recognition framework for freezing and confiscation orders.

Page 89 of 232