“The Principles of Patrimony Due Process of Law: The Punitive Confiscation and the Protection of Third Parties Misrelated to the Crime”

Dr.Sc. Mario Antinucci

Abstract


main motive for cross-border organised crime, including mafia-type criminal organisations, is financial gain. As a consequence, competent authorities should be given the means to trace, freeze, manage and confiscate the proceeds of such crime. However, the effective prevention of and fight against organised crime should be achieved by neutralising the proceeds of crime and should be extended, in certain cases, to any property derived from activities of a criminal nature. Organised criminal groups operate without borders and increasingly acquire assets in Member States other than those in which they are based. There is an increasing need for effective international cooperation on asset recovery and mutual legal assistance. Among the most effective means of combating organised crime is providing for severe legal consequences for committing such crime, as well as the effective detection and the confiscation of the instrumentalities and proceeds of crime. Although existing statistics are limited, the amounts recovered from proceeds of crime in the Unionseem insufficient compared to the estimated proceeds. Studies have shown that, although regulated by Unionand national law, confiscation procedures remain underused. The adoption of minimum rules will approximate the Member States' freezing and confiscation regimes, thus facilitating mutual trust and effective cross-border cooperation. The Stockholm Programme and the Justice and Home Affairs Council Conclusions on confiscation and asset recovery, adopted in June 2010, emphasise the importance of a more effective identification, confiscation and re-use of criminal assets. In this article, we will focus on the recent Directive of the EU Parliament and of the Council on freezing and confiscation of proceeds of crime in the EU (3 April 2014).


Keywords


Confiscation; The protection of third parties unrelated to the crime; the principles of patrimony due process of law

References


Associazione tra gli Studiosi del Processo Penale “G.D. Pisapia [Online] Available from: http://www.studiosiprocessopenale.it/convegno-nazionale-aspp-giustizia-penale-preventiva-cagliari-29-31-ottobre-2015-82a.html [Accessed on 21 November, 2015]

Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence (OJ L 196, 2.8.2003, p. 45).

Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union (OJ, 29.04.2014, L 127/39.

European Parliament legislative resolution of 25 February 2014 on the proposal for a regulation of the European Parliament and of the Council on the freezing and confiscation of proceeds of crime in the European Union.

Joint Action 98/699/JHA of 3 December 1998 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime adopted by the Council on the basis of Article K.3 of the Treaty on European Union (OJ L 333, 9.12.1998, p. 1).

Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders (OJ L 328, 24.11.2006, p. 59.

Framework Decision 2005/212/JHA of 24 February 2005 on the confiscation of goods, instruments and proceeds of crime (OJ L 68, 15.3.2005, p. 49).

Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime (OJ L 182, 5.7. 2001, p. 1).


Full Text: PDF

DOI: 10.21113/iir.v5i2.84

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Copyright (c) 2016 Dr.Sc. Mario Antinucci

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