CONFISCATION OF ILLEGAL ASSETS: A PROFIT-DRIVEN METHOD TO FIGHT AGAINST CRIMINAL ORGANIZATIONS

CONFISCATION OF ILLEGAL ASSETS: A PROFIT-DRIVEN METHOD TO FIGHT AGAINST CRIMINAL ORGANIZATIONS.

Original Article: ‪#‎EP2014‬ http://t.co/juOZTR47PK

In Brussels on Tuesday 24th, the conference on the “Confiscation of criminal and illegal assets: European perspectives in combat against serious crime” took place. This conference has been held by the correspondents of Transparency International (TI) Bulgaria, Romania and Italy with the participation of a few representatives of the Commission and the European Parliament.

The idea is spreading in Brussels that the EU needs an effective supranational legislation on the fight against corruption and criminal organizations. Indeed, the vice-president of the Budget and Human Resources department of the European Commission, Kristalina Georgieva, has defined corruption as a “cancer” for a democratic state that allows criminals to accumulate “illegal money on a really massive scale”. Furthermore, in its last report Europol counted approximately 380 criminal organizations from all around the world being present all over Europe.

More and more experts agree that serious crimes, such as trafficking in human beings and sexual exploitation of women and children, illicit arms and drug trafficking, money laundering, corruption and organised crime, have to be fought through strong and rigid EU regulations that include high levels of cooperation and a detailed explanation of the implementation. In fact, in the last 20 years the effects of globalization have drastically shaped the world, and the national borders are losing their capability to limit transnational criminal actions. These represent a serious threat to the democratic principles and, as remarked by the Bulgarian MEP Andrey Kovatchev, a waste of resources that could be used in other sectors.

As the Restarting the Future agenda suggests, one of the most effective ways to fight organized crime is an efficient regulation on the freezing and confiscation of criminal and illegal assets. It is essentially a profit-driven method that would demonstrate that the state is stronger than the criminals and would increase the confidence in national institutions. Furthermore, the proper reuse of illegal assets would restore the “stolen” social justice and, most importantly, would remove the direct economic gains of criminal organizations and discourage them to continue illegal activities, at least, in specific sectors.

The EU legislation on freezing and confiscation of illegal assets has been in development since 2001. The last EU act on this topic is the directive adopted on the 3rd of April 2014 by the European Council (EC) and the European Parliament (EP). Besides the great expectations, this act still does not represent an efficient regulation. Indeed, Kristalina Georgieva recognizes that, despite the improvements that it had generated, the negotiation of the directive in the EP and EC lead to a reduction of the impact of the first more “advanced” draft of the act, in particular, concerning the mutual recognition and the conviction of illegal assets. To give an example, it is still complicated for a Member State to proceed with the confiscation when the assets or the guilty defendant are not in that Member State anymore. In other words, the actual EU legislation still has some gaps that can be used to avoid national regulations on illegal asset forfeiture.

While the European Commission took the commitment to search for a deeper understanding of the conviction and the improvement of the transnational cooperation on assets forfeiture and reuse, TI asks for the creation of EU common standards for all possible asset forfeiture models. In particular, it proposes an “ideal model on common standards for national procedures for confiscation or forfeiture of assets” based on the Bulgarian, Romanian and Italian models. Seen as a temple, the model finds legitimation on the protection of fundamental human rights (the basement) and it should be guaranteed by the principles of integrity, transparency, accountability and efficiency.

Finally, the core of this model is represented by a packet of inter-dependent measures (the pillars): mechanisms for control on the work of confiscation bodies; institutionally strengthened national confiscation authorities, legal guarantees for transparency, integrity, efficiency and accountability, confiscation based on a court decision, adequate mechanisms for management and reuse of confiscated properties, raising the visibility of the state’s dominance over law offenders and common high standards for inter-institutional and inter-state cooperation at the EU level. As TI underlined multiple times, this model will be efficient only if it will be built on all this aspects, otherwise it will give chance of loopholes and gaps that could contaminate the whole system.

By Vania Putatti, @VaniaPutatti.

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