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4622 results in Criminal Law

Page 90 of 232

  • Chapter 4 - Legislation in Germany

  • 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 91-128

  • Summary

    THE DEVELOPMENT OF THE MEASURE OF EXTENDED CONFISCATION IN GERMAN LAW

    Indem der Staat dem Täter deliktisch Erlangtes wegnimmt, führt er ihm, wie auch der Rechtsgemeinschaft, vor Augen, dass strafrechtswidrige Bereicherungen nicht geduldet werden und Straftaten sich nicht lohnen.

    The German provisions on confiscation and forfeiture of property and proceeds of crime are found in the Criminal Code (“Strafgesetzbuch”, hereafter“ StGB”) and the Criminal Procedural Code (“Strafproce ß ordnung”, hereafter “StPO”). As already mentioned in Section 1.3.3 above, the legislation differs in the use of two measures; “Verfall” (forfeiture) and “Einziehung ” (seizure). Generally speaking, “Verfall” is used regarding the recovery of something that the defendant has acquired through a criminal offence or for its commission. Such provisions are found in Section 73 et seq. StGB. “Einziehung”, on the other hand, refers to the recovery of any instruments or objects which were generated by a crime, or used in its commission or preparation. Such provisions – which for example relate to certain dangerous items − are found in Section 74 et seq. StGB

    In German law extended confiscation is provided for in the provision on “erweiterter Verfall” in Section 73d StGB. This measure was introduced as early as 1992 by the Act against Organised Crime, as a result of a reform of many different areas of criminal law and procedural law with the German legal system in order to create more effective means to prevent and deal with organised criminality. Many rather far-reaching proposals had been made by the legislator during the legislative process, for example regarding new investigative measures like bugging etc. The importance of a profit-oriented law enforcement approach was also strongly emphasised in the legislative works:

    Die Organisierte Kriminalität ist zu einer Herausforderung für Staat und Gesellschaft geworden … Triebfeder für die Organisierte Kriminalität ist das Gewinnstreben.

  • Chapter 6 - Brief Overview of the Legislation in Norway, Denmark and Finland

  • 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 179-188

  • Summary

    NORWAY

    THE PROVISION ON EXTENDED CONFISCATION

    Norway has a rather broad range of legal powers regarding asset recovery, and the regime on extended confiscation was adopted in 1999. The legal provisions on confiscation are found in the Norwegian Penal Code. This new Penal Code took force on 1 October 2015 (Act of 19 June 2015 No. 65), even though this piece of legislation had already been enacted in 2005. It replaced the Act of 22 May 1902 No. 10 (“Almindelig borgerlig Straffelov”). In substance, the former provision on extended confiscation in this Act (Chapter 2 Section 34a) was thereby kept unchanged.

    The Norwegian Penal Code (Chapter 13 Section 68) provides for extended confiscation (“utvidet inndragning”) if the offender is found guilty of a criminal act of such a nature that the proceeds thereof can be considerable, and he has committed:

  • (a) one or more criminal acts that may collectively be punishable by imprisonment for a term of six years or more, or an attempt at such an act, or

  • (b) at least one criminal act punishable by imprisonment for a term of two years or more, or an attempt at such an act, and the offender during the five years immediately preceding the commission of the said act has been punished for an act of such a nature that the proceeds thereof can be considerable.

    • Accordingly, several requirements are set up. It is first required that an offender is found guilty of a criminal act. The triggering offences are identified by a link to certain penalty scales. Decisive here are the penalty scales in question and not the actual penalty imposed in the individual case. An interesting provision in this respect is Chapter 14 Section 79 of the Norwegian Penal Code, which provides that under certain conditions it is allowed to increase the maximum penalty laid down in the penal provision (i.e. double its prescribed limit), if a criminal offence has been committed as part of the activity of an organised criminal group. (The limits hereto and the definition of the term “organised criminal group” is given in the provision.) This means that in such cases the scope for extended confiscation may be somewhat increased.

  • Chapter 2 - Legislative Action by the EU

  • 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 25-42

  • Summary

    FD 2005/212/JHA

    INTRODUCTION

    As described in Section 1.2 above, the EU has adopted several instruments in the area of confiscation and asset recovery. In the context of this study, FD 2005/212/ JHA is especially important as it introduced a system of extended confiscation into the EU regime. The last date for the national implementation of this framework decision was 15 March 2007. At present, all Member States except for Greece, Italy, Luxembourg and the United Kingdom have implemented it. In some of the States which have not implemented the instrument the measure of extended confiscation is provided for anyway (one example is the UK), and in other States the implementation process is ongoing. In the following, the most central provisions of FD 2005/212/JHA are presented. Thereafter the reviews of the European confiscation powers in the years 2005 – 2014 are described (Section 2.2). The chapter closes with a presentation of the new directive adopted within the EU in 2014 (Section 2.3).

    The aim of FD 2005/212/JHA has been to harmonise national confiscation laws, and to ensure that all Member States have effective rules. At its adoption, the EU legislator argued that the existing instruments in the area of confiscation had neither to a sufficient extent achieved powerful confiscation measures nor more effective routines for cross-border cooperation. This was considered to be due to certain differences between the domestic legislation, and also as resulting from the poor implementation rates regarding the existing instruments. Article 2 FD 2005/212/JHA deals with the powers of ordinary confiscation. This form of confiscation requires that a link is proved between a specific criminal offence and the assets to be confiscated. The Member States are obligated by this provision to enable their authorities to confiscate, either wholly or in part, instrumentalities and proceeds from criminal offences punishable by deprivation of liberty for more than one year, or property the value of which corresponds to such proceeds. An exception is made for tax offences, where the Member States are permitted to use procedures other than criminal procedures to deprive the perpetrator of the proceeds of such an offence.

  • Chapter 5 - Legislation in Sweden

  • 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 129-178

  • Summary

    THE DEVELOPMENT OF THE MEASURE OF EXTENDED CONFISCATION IN SWEDISH LAW

    The regime on confiscation has been continually amended and extended in Swedish law. Space does not allow an exhaustive description of this general development, but in what follows a short outline of the reasons for the introduction of the measure of extended confiscation will be given. Of significant importance for the development of the Swedish system of confiscation as a whole was the Ministry of Justice Report on more efficient legislation on confiscation, which was published in 1999. The motive for setting up this inquiry was to elaborate proposals for improved rules in order to counteract large-scale organised and financial crime. The report concluded in general that the measure of confiscation had had limited use in Swedish practice, and that the legal provisions were unclear and ineffective. The significant evidentiary difficulties in showing a link between the crime in question and the property to be confiscated were especially highlighted. Several proposals were made in order to strengthen the measure of confiscation and overcome the investigatory shortcomings. Among these was also a proposal for a form of extended confiscation, which had largely been inspired by the Norwegian legislation. The report resulted in several changes in national legislation regarding ordinary confiscation, but the measure of extended confiscation was not finalised at this legislative stage.

    Instead, the development towards the introduction of such a measure was triggered by a number of international undertakings. Of most importance became the adoption in 2005 of FD 2005/212/JHA. The main part of this instrument was implemented in Swedish law through legal provisions that came into force in 2005. However, the adoption of provisions on extended confiscation, in accordance with Article 3 of the instrument, was left pending on this occasion because the matter was deemed to require more thorough investigation.

  • Chapter 11 - International Cooperation in Order to Execute Final Confiscation Orders

  • 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 281-302

  • Summary

    THE LEGAL FRAMEWORK

    REQUESTS FOR MLA

    An international basis to request judicial assistance from other States in order to recognise and enforce the execution of a final confiscation order can be found in several treaties, for example Article 13 of the European Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (1990), Article 13 of the United Nations Convention against Transnational Organized Crime (2000), Article 5 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988) and Article 23 of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism (2005). In general, the provisions on cooperation on the basis of MLA obligate a requested State either to enforce a confiscation order made by a court of a requesting State or to submit the request to its own competent authorities for the purpose of obtaining a domestic order of confiscation and, if such order is granted, enforce it. The traditional procedure for MLA applies, and common grounds for refusal of such assistance are, for example, a lack of double criminality, violations of ordre public or concern for the principle of ne bis in idem.

    THE FD ON CONFISCATION ORDERS

    General Provisions

    Within the EU more advanced cooperation based on mutual recognition has been introduced within the area of final confiscation orders by the FD on Confiscation Orders. The purpose of this instrument is to establish the rules under which a Member State must recognise and execute in its territory a confiscation order issued by a court competent in criminal matters of another Member State. In this way, the FD on Freezing Orders has been complemented with an instrument which regulates also the handling of transnational final confiscation orders in accordance with the criteria of mutual recognition. The instrument should have been implemented by 24 November 2008. In 2010, the European Commission concluded in a mutual evaluation report that the degree of implementation was not satisfactory, as only 13 Member States had implemented the instrument. Since then the situation has improved, although the instrument has not yet been implemented by Greece, Slovakia, Ireland and Luxembourg (as of February 2017).

  • Chapter 13 - Final Remarks: “To Go for the Money” – But How?

  • 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 323-328

  • Summary

    “Absent a clear and sound legal framework, asset recovery becomes, in a best-case scenario, arduous and, in a worst-case scenario, impossible”.

    In this book, I have taken a comprehensive approach to the instrument of extended confiscation. The underlying idea has been that in order to set up an efficient strategy, one needs to address the different stages of the confiscation procedure as a whole and not view them separately. The international and national legislators have in recent years sought to justify more far-reaching measures with regard to the “low efficiency” of the confiscation regimes and the (anticipated) low figures of confiscated assets. Within the EU, wider powers on extended confiscation have been adopted under the argument that the harmonisation of the substantive provisions achieve more efficient national regimes and facilitate international cooperation. In order to assess the justifications for such assertions, this study has placed Directive 2014/42/EU in the broader context of the national and international legal framework and confiscation practice. The starting-point has been that any conclusions as to which legislative paths may be most efficient must be drawn on the basis of an understanding of how the system works as a whole.

    So what is then the right path for the future? This study will be concluded with four general guidelines for the future development of extended confiscation. These are based on the findings of the comparative study and are intended to summarise this analysis.

    (1) To avoid a disproportionate expansion of the powers on extended confiscation

    There is reason to feel some concern about the expansion of the powers of extended confiscation. In fact, the instrument has expanded dramatically in the last few years. The trend both nationally and internationally has been towards more far-reaching legislation with a broadened range of triggering offences and a lowered standard of evidence. Even if extended confiscation was originally only applied in cases of organised crime and serious drug offences, there has been a successive shift towards the inclusion of all types of criminal offences.

    Even if Directive 2014/42/EU abolished the previous link to organised criminality for extended confiscation, this criminality is often used in order to justify more extensive powers.

  • Chapter 3 - Legislation in England and Wales

  • 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 43-90

  • Summary

    THE DEVELOPMENT OF THE LEGISLATION ON EXTENDED CONFISCATION IN ENGLAND AND WALES

    The need for powers to confiscate the proceeds of crime in the context of a criminal conviction came into focus in the UK in connection with a police operation named “Julie” during 1978. Over years, several defendants had manufactured and sold large quantities of LSD. The police had seized cash, cars and other property to a value of £750,000, and it was claimed by the prosecution in the criminal proceedings that this represented the proceeds of narcotics offences. However, in the judgments which followed (e.g. the Cuthbertson case) the courts came to different conclusions. The first trial judge made an order for confiscation, which was upheld by the Court of Appeal. In the House of Lords this decision was “with considerable regret” overturned with the argument that the legislation in force did not permit the confiscation of the profits or proceeds of crime, but only regarded things “related to the offence”. The seized assets were thus returned to the defendants under public outcry. The government established the so-called Hodgson Committee with the task of giving proposals for a new confiscation regime. The report, which was published in 1984, recommended a new power of confiscation.

    In 1986, provisions on the confiscation of the proceeds of crime were introduced by the Drug Trafficking Offences Act 1986. This measure was initially only applicable in drug-trafficking cases, but was then extended by the Criminal Justice Act 1988 to also embrace any indictable offence and certain other offences. The purpose for adopting such legislation was to ensure that offenders were deprived of the proceeds from criminal conduct, and thereby also to create a certain deterrent effect, especially regarding serious organised crime. During the following years, the confiscation regime was extended by several new pieces of legislation, for example the Criminal Justice (International Cooperation) Act 1990, the Drug Trafficking Act 1994 and the Proceeds of Crime Act 1995.

  • Preface

  • Malin Thunberg Schunke
  • Book:
    Extended Confiscation in Criminal Law
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    21 August 2017, pp v-vi

  • Summary

    This book would not have been possible without the generous funding from the Swedish Research Council (Vetenskapsrådet), which has financed the research. During the project, I have also received assistance from a number of people. First of all, many thanks to Professor Iain Cameron and Professor Magnus Ulv ä ng who gave valuable commentaries and other support to my application for funding. The research environment of Uppsala University is very inspiring, and special gratitude goes to the participants of the research seminar organised by Magnus Ulv ä ng at the Law Faculty, where I was able to present and discuss my subject. When in Uppsala, I am always spoilt by the generous support of Professor Nils Jareborg.

    I would further like to thank the following experts for help in various ways, for example by answering my questions relating to the European Union and confiscation: Hans G. Nilsson, Guy Stessens, Steven Cras and Sebastiano Tiné. At a seminar at the Prosecution Development Centre in Stockholm, I was able to discuss financial investigations and confiscation practice. Many thanks go to the participants and to the Deputy Director of Public Prosecution Ewa Nyhult, who organised the seminar. Words of thanks are also due to Chief Prosecutor Eva Thunegard, who has assisted me with materials relating to the confiscation practice of the prosecuting offices.

    And finally, as always, I am proud and grateful to be a part of such a great and loving family: Maximilian, Emma, Nicholas, Alexander and the rest of the big Thunberg-Schunke clan.

    Hannover, February 2017

  • Chapter 8 - International Cooperation in the Area of Confiscation

  • 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 225-236

  • Summary

    INTRODUCTION

    Obviously, close international cooperation is a fundamental key to a successful policy of asset recovery, as strong national powers of confiscation are significantly weakened if they cannot be enforced abroad. Technological developments (for example instant electronic transactions and banking) and the increasing internationalisation of society in general, render it absolute necessary that law enforcement agencies may investigate and search for assets across borders in an efficient and speedy way. The EU area is in this respect particularly vulnerable against the background of the free movement and the abolishment of internal border controls. Consequently, it is relatively easy for criminals to transfer and hide illegal proceeds in other Member States.

    Various instruments on international cooperation in criminal matters have been adopted over the years. Some of them generally regulate the area of requests for legal assistance, whereas others are specifically drafted with respect to cooperation within asset recovery or regarding certain types of criminality. Traditionally, international cooperation in criminal matters is built upon the system of mutual legal assistance (“MLA”). Hereby a requesting State sends a formal request for legal assistance to a requested State, which will decide whether such a measure may be executed on the behalf of another State. It is based on reciprocity. Common grounds for refusal of such requests are, for example, a lack of double criminality, ordre public or exceptions for fiscal and political offences. Generally speaking, the regime of MLA is considered to be slow and cumbersome, as requests usually go through diplomatic channels or central authorities (often the Ministry of Justice). Even if there have been improvements in this area in recent years to facilitate the execution of requests and provide for faster procedures, many difficulties remain. Within the EU, some legal instruments have therefore been adopted in order to provide for improved and more advanced forms of MLA between the Member States. The international and EU instruments on MLA which may be applied for requests in the area of asset recovery will be described in Section 8.2.

  • Chapter 9 - Cross-Border Asset Tracing and Exchange of Information

  • 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 237-262

  • Summary

    THE LEGAL FRAMEWORK

    REQUESTS WITHIN THE FRAMEWORK OF INTERNATIONAL POLICE COOPERATION

    During the investigative stage any assets must be identified, searched for, located and documented. This is a multifaceted activity with overlapping objectives as criminal assets must not only be found, but it may also be necessary to acquire sufficient evidence to link the asset to an unlawful activity or to the criminal offence. A request for assistance at the investigative stage may be of varied character, but common requests concern for example:

  • – to obtain information on whether any assets are present in another State,

  • – to trace and search for specific assets abroad, and/or

  • – to gather evidence needed to support a confiscation order.

    • The tracing of criminal assets is not an easy task in itself, and there is a significant need for specialised and trained units:

    the multiple forms assets can take means that investigators must have an understanding of a wide range of spheres, including financial markets, corporate and commercial structures, banking practices, property and insolvency law, and online currencies in order to successfully trace the path of a converted asset.

    Financial investigations are conducted by different authorities, for example police forces, prosecutors or investigating magistrates. These authorities may need access to different types of information regarding property, for example land registers, company registers, records on vehicles and data from insurance companies or tax authorities. Transnational exchange of information or intelligence in confiscation cases may take place in many different ways, but a significant part of the initial investigation takes place within the framework of international cooperation between police forces. Often it is possible to directly share intelligence or data which is legally available to the agencies through domestic databases. There are currently numerous channels for informal and formal police-cooperation, which may be used in order to search for assets abroad. Examples are liaison officers, Europol, Interpol or the CARIN network. The specialised framework of the national asset recovery offices set up by the FD on Asset Recovery Offices is also an important cooperation channel.

Page 90 of 232