Extended confiscation in criminal law : national, European and international perspectives / Malin Thunberg Schunke.
2017
KJC8251.F67 T48 2017 (Map It)
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Title
Extended confiscation in criminal law : national, European and international perspectives / Malin Thunberg Schunke.
Published
Cambridge [England] ; Antwerp [Belgium] ; Portland [Oregon] : Intersentia, [2017]
Distributed
Portland, OR, USA : Distribution for the USA and Canada, International Specialized Book Services
Copyright
©2017
Call Number
KJC8251.F67 T48 2017
ISBN
9781780684789 (paperback)
1780684789 (paperback)
1780684789 (paperback)
Language Note
English text, with extracts from German and Swedish legislation.
Description
xxii, 353 pages ; 25 cm.
System Control No.
(OCoLC)989967968
Summary
This book provides a comprehensive analysis of the measure of extended confiscation as an instrument of criminal policy. National and international regimes on confiscation are viewed from a multi-faceted perspective, and the main focus is the framework of the European Union. 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. A key point of the analysis focuses on Directive 2014/42/EU on the Freezing and Confiscation of Instrumentalities and Proceeds of Crime in the European Union, which aims at harmonising the national powers of confiscation. This book explores whether such measures really lead to more efficiency, or if other reforms may be more effective. An overriding issue is whether increased powers of extended confiscation strike the right balance between the interest of law enforcement and the protection of human rights. The second part of the book deals with the international perspective. The notion of extended confiscation is set in the broader context of transnational cooperation regarding the confiscation of assets.
Note
This book provides a comprehensive analysis of the measure of extended confiscation as an instrument of criminal policy. National and international regimes on confiscation are viewed from a multi-faceted perspective, and the main focus is the framework of the European Union. 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. A key point of the analysis focuses on Directive 2014/42/EU on the Freezing and Confiscation of Instrumentalities and Proceeds of Crime in the European Union, which aims at harmonising the national powers of confiscation. This book explores whether such measures really lead to more efficiency, or if other reforms may be more effective. An overriding issue is whether increased powers of extended confiscation strike the right balance between the interest of law enforcement and the protection of human rights. The second part of the book deals with the international perspective. The notion of extended confiscation is set in the broader context of transnational cooperation regarding the confiscation of assets.
Bibliography, etc. Note
Includes bibliographical references (pages 329-350) and index.
Record Appears in
Table of Contents
Preface
v
Table of Cases
xiii
List of Abbreviations
xix
Part I. Introduction
ch. 1
Background and Scope of the Study
3
1.1.
Go for the Money!: The Development and Expansion of a New Law Enforcement Strategy
3
1.2.
International and National Legislative Action
6
1.3.
On the Subject Matter
9
1.3.1.
Overriding Purpose of the Study
9
1.3.2.
Different Stages of Confiscation
10
1.3.3.
Note on Terminology
12
1.4.
Perspectives of the Study and Delimitations
15
1.4.1.
National and International Perspectives
15
1.4.2.
Delimitations
16
1.5.
Outline of the Different Parts and Chapters
17
Part II. Substantive Provisions On Extended Confiscation
ch. 2
Legislative Action by the EU
25
2.1.
FD 2005/212/JHA
25
2.1.1.
Introduction
25
2.1.2.
Extended Confiscation
26
2.1.3.
Third Party Confiscation and Rules on Procedural Rights
28
2.2.
Reviews of the European Confiscation Powers
29
2.3.
Directive 2014/42/EU
33
2.3.1.
General Framework of the Directive
33
2.3.2.
Provision on Ordinary Confiscation
35
2.3.3.
Provision on Extended Confiscation
37
2.3.4.
Third Party Confiscation
39
2.3.5.
Procedural Safeguards
39
ch. 3
Legislation in England and Wales
43
3.1.
Development of the Legislation on Extended Confiscation in England and Wales
43
3.2.
Overview of POCA 2002
45
3.3.
Confiscation Orders Pursuant to Part 2 of POCA 2002
49
3.3.1.
Introduction
49
3.3.2.
Twin Track Confiscation System
51
3.4.
Criminal Lifestyle Confiscation
53
3.4.1.
Basic Requirements
53
3.4.2.
Determination of Benefit in Criminal Lifestyle Cases
54
3.4.2.1.
Statutory Assumptions
54
3.4.2.2.
Burden and Standard of Proof
57
3.4.2.3.
Benefit and the Available Amount
58
3.5.
Some Special Features of the English Confiscation Procedure
65
3.6.
Commentary on the English Confiscation Regime on Lifestyle Confiscation
67
3.6.1.
Draconian but Efficient Confiscation Regime?
67
3.6.2.
Classification of Defendants as Lifestyle Offenders
70
3.6.3.
Assessment of Benefit on the Basis of the 'Criminal Lifestyle' Assumptions
71
3.6.4.
Lack of Judicial Discretion
74
3.6.5.
Burden of Proof on a Defendant
76
3.6.6.
Confiscation Orders and the ECHR
78
3.6.6.1.
Case-law from the ECtHR
78
3.6.6.2.
Confiscation Orders and the Human Rights Act 1998
85
3.6.6.3.
Remarks on the Compatibility of the Regime with the ECHR
86
3.6.7.
Difficulties Regarding the Enforcement of Confiscation Orders
87
ch. 4
Legislation in Germany
91
4.1.
Development of the Measure of Extended Confiscation in German Law
91
4.2.
Generally on the Confiscation Regime
97
4.3.
Extended Confiscation in German Law
99
4.3.1.
Basic Substantive Rules and the Procedural Framework
99
4.3.2.
Triggering Offences and the Scope for Extended Confiscation
102
4.3.3.
Evidentiary Standard for Extended Confiscation
104
4.3.3.1.
Legal Provision and the Legislative Works
104
4.3.3.2.
Decision by the Bundesgerichtshof in 1994
106
4.3.3.3.
Decision by the Bundesverfassungsgericht in 2004
108
4.3.3.4.
Application of the Evidentiary Standard in Case-law
110
4.4.
Commentary on the German Regime of Extended Confiscation
113
4.4.1.
Complex and Partly Controversial Asset Recovery Regime
113
4.4.2.
Interpretation and Application of the Evidentiary Standard
114
4.4.3.
Present Scope of the Legislation
117
4.4.4.
Proposal for a New German Provision on Extended Confiscation
118
4.4.5.
Proposal for a New Form of Non-Conviction-Based Confiscation
122
4.4.6.
Practice of Administrative "Praventive Gewinnabschopfung"
126
ch. 5
Legislation in Sweden
129
5.1.
Development of the Measure of Extended Confiscation in Swedish Law
129
5.2.
Generally on the Regime for Confiscation in Sweden
131
5.3.
Provision on Extended Confiscation in Swedish Law
134
5.3.1.
Basic Substantive Rules and the Procedural Framework
134
5.3.2.
Triggering Offences and the Scope for Extended Confiscation
137
5.3.3.
Special Criteria for Extended Confiscation
138
5.3.4.
Burden and Standard of Proof
140
5.3.5.
Third Party Confiscation
144
5.4.
Swedish Case-Law on Extended Confiscation
145
5.4.1.
Introduction
145
5.4.2.
Assets Found under "Suspicious" Circumstances
147
5.4.3.
Financial Situation of the Defendant
150
5.4.4.
NIA 2010 p. 374
154
5.5.
Analysis of the Swedish Confiscation Regime
157
5.5.1.
Issue of Confiscation of Relatively Low Amounts of Cash
157
5.5.2.
Scope of Confiscation and the Triggering Offences
162
5.5.3.
Swedish Hardship Rule
170
5.5.4.
Lowered Standard or a Reversed Burden of Proof?
171
5.5.5.
Procedural Framework for a Motion on Extended Confiscation
173
5.5.6.
Efficiency of the Regulation
175
ch. 6
Brief Overview of the Legislation in Norway, Denmark and Finland
179
6.1.
Norway
179
6.1.1.
Provision on Extended Confiscation
179
6.1.2.
Burden of Proof
181
6.1.3.
Procedural Framework
182
6.2.
Denmark
183
6.2.1.
Provision on Extended Confiscation
183
6.2.2.
Burden of Proof
184
6.2.3.
Danish Legislation and Directive 2014/42/EU
184
6.3.
Finland
185
6.3.1.
Provision on Extended Confiscation
185
6.3.2.
Burden of Proof
187
ch. 7
Directive 2014/42/EU: A Reform with Significant Legal Changes?
189
7.1.
Necessity of a New EU Instrument on Confiscation
189
7.2.
Challenges to a More Harmonised EU Regime
193
7.3.
Triggering Offences and the Scope of Directive 2014/42/EU
197
7.4.
Establishment of Illegal Origin
202
7.4.1.
Some Special Supportive Legislative Criteria
202
7.4.2.
Evidentiary Standard and Burden of Proof
204
7.5.
Exceptions to Extended Confiscation
210
7.6.
Absence of a Hardship Clause
212
7.7.
Procedural Safeguards for the Individual
214
7.8.
Relationship Between Confiscation and Compensation for Victims
216
7.9.
Third Party Confiscation
217
7.10.
Concluding Remarks: What Has Been Achieved and What Still Needs to be Done?
218
Part III. The Legal Framework For International Cooperation
ch. 8
International Cooperation in the Area of Confiscation
225
8.1.
Introduction
225
8.2.
International Instruments on MLA
226
8.3.
EU Instruments on Mutual Recognition
228
8.4.
Directive on EIO
230
8.5.
Outline of the Following Chapters
233
ch. 9
Cross-Border Asset Tracing and Exchange of Information
237
9.1.
Legal Framework
237
9.1.1.
Requests within the Framework of International Police Cooperation
237
9.1.2.
Requests within the Framework of International Cooperation between Judicial Authorities
241
9.1.3.
FD on Asset Recovery Offices
248
9.2.
Commentaries to the Regime of International Cooperation Regarding the Tracing of Assets
250
9.2.1.
Scope and Practical Application of the Legal Framework
250
9.2.2.
Setting up of Efficient AROs
256
9.2.3.
German Asset Recovery Offices
260
ch. 10
International Cooperation in Order to Seize or Freeze Assets
263
10.1.
Legal Framework
263
10.1.1.
Requests for MLA
263
10.1.2.
Orders for Seizure or Freezing Based on Mutual Recognition
265
10.1.2.1.
FD on Freezing Orders
265
10.1.2.2.
Directive on EIO
268
10.2.
Commentary to the EU Regime on Cross-Border Seizure of Assets
269
10.2.1.
FD on Freezing Orders: A Lack of Application in Legal Practice
269
10.2.2.
Abolition of Double Criminality: The Example of Sweden
274
10.2.3.
Need for Urgent Measures: Is the Present Legal Framework Sufficient?
276
ch. 11
International Cooperation in Order to Execute Final Confiscation Orders
281
11.1.
Legal Framework
281
11.1.1.
Requests for MLA
281
11.1.2.
FD on Confiscation Orders
282
11.1.2.1.
General Provisions
282
11.1.2.2.
Mutual Recognition of Orders on Extended Confiscation
286
11.2.
Commentary on the EU Regime on Cross-Border Execution of Final Confiscation Orders
287
11.2.1.
Generally on the Legal Construction of the FD on Confiscation Orders
287
11.2.2.
Execution of Final Orders Based on the Powers of Extended Confiscation
288
11.2.2.1.
Mutual Recognition and the FD on Confiscation Orders
288
11.2.2.2.
Example of Sweden: Execution of Foreign Orders Regarding Extended Confiscation
292
11.2.3.
Special Difficulties for the UK: Recognition and Execution of NCB Confiscation Orders
296
ch. 12
Proposal for a Regulation on Mutual Recognition
303
12.1.
Background to the Proposal
303
12.2.
Motives for EU Action
304
12.3.
Legal Basis, Choice of Instrument and General Structure
305
12.4.
Scope of Application
307
12.5.
Grounds for Non-Recognition and Non-Execution
311
12.6.
Time Limits for Recognition and Execution of Orders
312
12.7.
General Provisions on Procedure
313
12.8.
Some Special Provisions Regarding Freezing Orders
314
12.9.
Priority of the Rights of Victims
316
12.10.
Mutual Recognition and the Respect for Fundamental Rights
317
ch. 13
Final Remarks: "To Go for the Money" - But How?
323
Bibliography
329
Index
351
About the Author
353