11 Amendments of Jana TOOM related to 2022/0167(COD)
Amendment 60 #
Proposal for a directive
Recital 26
Recital 26
(26) Confiscation should also be possible where a court is satisfied that the instrumentalities, proceeds, or property in question is derived from criminal conduct but where a final conviction is not possible because of illness, absconding or death of the suspected or accused person, or because the suspected or accused person cannot be held liable because of immunity or amnesty as provided for under national law. The same should be possible where the time limits prescribed under national law have expired, where such time limits are not sufficiently long to allow for the effective investigation and prosecution of the relevant criminal offences. Confiscation in such cases should only be allowed where the national court is satisfied that all the elements of the offence are present. For reasons of proportionality, confiscating property without a prior conviction should be limited to cases of serious crimes and only where the instrumentalities, proceeds or property are linked to the criminal offence. In the determination of the link, account shall be taken of all the circumstances of the case. The burden of proof regarding the illegal origin shall be carried by the prosecution. The right of the defendant to be made aware of the proceeding and to be represented by a lawyer should not be affected.
Amendment 67 #
Proposal for a directive
Recital 35 a (new)
Recital 35 a (new)
(35 a) The Commission should facilitate coordination between Member States where instrumentalities, proceeds and property have been confiscated following the violation restrictive measures. Particularly, the Commission should issue guidelines on the use of the confiscated instrumentalities, proceeds and property for restitution and reparations towards states which are victim of war of agression.
Amendment 83 #
Proposal for a directive
Article 11 – paragraph 5
Article 11 – paragraph 5
5. Member States shall ensure that the freezing orders pursuant to paragraphs 1, 2, 3 and 4 are issued by a competent authority and are adequately motivated. Where orders have been issued by a competent authority other than a judicial authority, the order shall be evaluated by a judicial authority without undue delay.
Amendment 85 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
1. Member States shall take the necessary measures to enable the confiscation, either wholly or in part, of instrumentalities and, proceeds, or property stemming from a criminal offence following a final conviction, which may also result from proceedings in absentia.
Amendment 86 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. Member States shall take the necessary measures to enable the confiscation of property the value of which corresponds to instrumentalities or , proceeds, or property stemming from a criminal offence following a final conviction, which may also result from proceedings in absentia.
Amendment 87 #
Proposal for a directive
Article 13 – paragraph 1 – subparagraph 1
Article 13 – paragraph 1 – subparagraph 1
Member States shall take the necessary measures to enable the confiscation of instrumentalities, proceeds, or other property the value of which corresponds to proceeds, which, directly or indirectly, were transferred by a suspected or accused person to third parties, or which were acquired by third parties from a suspected or accused person.
Amendment 89 #
Proposal for a directive
Article 13 – paragraph 1 – subparagraph 2
Article 13 – paragraph 1 – subparagraph 2
The confiscation of these instrumentalities, proceeds or other property shall be enabled where it has been established that those third parties knew or ought to have known that the purpose of the transfer or acquisition was to avoid confiscation, on the basis of concrete facts and circumstances, including that the transfer or acquisition was carried out free of charge or in exchange for an amount significantly lower than the market value.
Amendment 105 #
Proposal for a directive
Article 15 – paragraph 2
Article 15 – paragraph 2
2. Confiscation without a prior conviction shall be limited to criminal offences liable to give rise, directly or indirectly, to substantial economic benefit and only insofar as the national court is satisfied that all the elements of the offence are present. The instrumentalities, proceeds, property to be confiscated must be linked to the criminal offence. In the determination of the link, account shall be taken of all the circumstances of the case. The burden of proof shall lie with the prosecution.
Amendment 113 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. When determining whether the frozen property is derived from criminal offences, account shall be taken of all the circumstances of the case, including the specific facts and available evidence, such as that the value of the property is substantially disproportionate to the lawful income of the owner of the property. The burden of proof shall lie with the prosecution.
Amendment 125 #
Proposal for a directive
Article 18 – paragraph 1 a (new)
Article 18 – paragraph 1 a (new)
The Commission shall facilitate coordination between Member States where instrumentalities, proceeds and property has been confiscated following the violation restrictive measures. The Commission shall issue guidelines on the use of the confiscated instrumentalities, proceeds and property for restitution and reparations towards states which are victim of war of agression.
Amendment 139 #
Proposal for a directive
Article 23 – paragraph 4 – subparagraph 4
Article 23 – paragraph 4 – subparagraph 4
In the case of confiscation orders pursuant to Article 15, such circumstances shall include facts and evidence on the basis of which the national court concluded that all the elements of the offence are present. and that the instrumentalities, proceeds, or property to be confiscated are linked to the criminal offence.