Activities of Emil RADEV related to 2022/0167(COD)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council on asset recovery and confiscation
Amendments (26)
Amendment 52 #
Proposal for a directive
Recital 10
Recital 10
(10) Other crimes committed within the framework of a criminal organisation play a pivotal role in generating revenues and in enabling further crimes, including serious crimes with a cross-border nature. Such crimes should be included in the scope of the Directive to the extent to which they are committed within the framework of a criminal organisation. The counterfeiting and piracy of products is linked to money laundering and the forgery of documents, and threatens the functioning of the single market and fair competition. The illicit trafficking in cultural goods, including antiques and works of art, is often intertwined with money laundering and constitutes an important source of financing for organised criminal groups. The same applies to the illegal trade and trafficking of endangered animal and plant species, including their body parts or products derived from them. Forgery of administrative documents and trafficking therein, including bank documents or identification documents, is a key enabling tool for money laundering, trafficking in human beings, or migrant smuggling, and should as such be covered in the scope of this Directive. Other crimes which are often carried out within the framework of an organised crime group include murder or grievous bodily harm, as well as the illicit trade in human organs and tissue, which are a source of revenue for organised crime groups in the context of contract killings, intimidation and trafficking in human beings. Similarly kidnapping, illegal restraint or hostage taking, as well as racketeering and extortion, are utilized either as source of revenue through the collection of ransom money or as intimidation tactics against adversaries. The crime of organised or armed robbery is one of the most common forms to generate profits for organised criminal groups, and it is often committed in conjunction with other crimes, in particular the trafficking in firearms. Similarly, the trafficking in stolen vehicles cannot only generate profits but also represents an enabling crime to provide for the necessary instrumentalities to carry out further offences. In addition, it is key to include tax crimes to the extent it is committed as part of a criminal organisation in the scope of the Directive, as this specific crime is an enabling source of profits, especially when operating in a cross-border context. Typical techniques employed to commit tax fraud or evasion consist of making use of cross-border corporate structures or similar arrangements to fraudulently obtain tax benefits and refunds, hide assets or profits, merge legal with illicit profits and assets or to transfer them to other entities abroad to disguise their origins or (beneficial) ownership.
Amendment 53 #
Proposal for a directive
Recital 12
Recital 12
(12) In order to capture property which might be transformed and transferred in order to conceal its origin, and in order to ensure harmonisation and clarity of definitions across the Union, property that can be subject to freezing and confiscation should be defined broadly. It should cover legal documents or instruments, in any form, including electronic or digital, evidencing title or interest in property subject to freezing and confiscation including, for example, financial instruments, or documents that may give rise to creditor claims and are normally found in the possession of the person affected by the relevant procedures, as well as trusts. This Directive is without prejudice to the existing national procedures for keeping legal documents or instruments evidencing title or interest in property, as they are applied by the competent national authorities or public bodies in accordance with national law. The definition should cover all forms of property, including crypto assets.
Amendment 61 #
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. The right of the defendant to be made aware of the proceeding and to be represented by a lawyer should not be affected.
Amendment 66 #
Proposal for a directive
Recital 29
Recital 29
(29) To ensure that property that is or may become subject to a freezing or confiscation order maintains its economic value Member States should put in place effective management measures. Such, unless the urgency of a case would require foregoing such measures. Those measures should include a systematic assessment of how to best preserve and optimise the value of property before the adoption of freezing measures, also known as pre-seizure planning. Any decision by the competent authorities to forego such assessment of the costs shall be duly justified.
Amendment 68 #
Proposal for a directive
Article 2 – paragraph 1 – point m
Article 2 – paragraph 1 – point m
(m) environmental crime, including illicit trade and trafficking in endangered animal species and in endangered plant species and varietiesand plant species, including their body parts or products derived from them, as defined in in Directive 2008/99/EC of the European Parliament and of the Council50 , as well as offences related to ship pollution as defined in Directive 2005/35/EC as amended by Directive 2009/123/EC51 ; _________________ 50 Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law (OJ L 328, 6.12.2008, p. 28). 51 Directive 2009/123/EC of the European Parliament and of the Council of 21 October 2009 amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements (OJ L 280, 27.10.2009, p. 52).
Amendment 69 #
Proposal for a directive
Article 3 – paragraph 1 – point 2
Article 3 – paragraph 1 – point 2
(2) ‘property’ means property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments, in any form, including electronic or digital, evidencing title or interest in such property;
Amendment 77 #
Proposal for a directive
Article 9 – paragraph 6 – point b a (new)
Article 9 – paragraph 6 – point b a (new)
(b a) or otherwise would not be in accordance with fundamental principles of national law.
Amendment 93 #
Proposal for a directive
Recital 10
Recital 10
(10) Other crimes committed within the framework of a criminal organisation play a pivotal role in generating revenues and in enabling further crimes, including serious crimes with a cross-border nature. Such crimes should be included in the scope of the Directive to the extent to which they are committed within the framework of a criminal organisation. The counterfeiting and piracy of products is linked to money laundering and the forgery of documents, and threatens the functioning of the single market and fair competition. The illicit trafficking in cultural goods, including antiques and works of art, is often intertwined with money laundering and constitutes an important source of financing for organised criminal groups. The same applies to the illegal trade and trafficking of endangered animal and plant species, including their body parts or products derived from them. Forgery of administrative documents and trafficking therein, including bank documents or identification documents, is a key enabling tool for money laundering, trafficking in human beings, or migrant smuggling, and should as such be covered in the scope of this Directive. Other crimes which are often carried out within the framework of an organised crime group include murder or grievous bodily harm, as well as the illicit trade in human organs and tissue, which are a source of revenue for organised crime groups in the context of contract killings, intimidation and trafficking in human beings. Similarly kidnapping, illegal restraint or hostage taking, as well as racketeering and extortion, are utilized either as source of revenue through the collection of ransom money or as intimidation tactics against adversaries. The crime of organised or armed robbery is one of the most common forms to generate profits for organised criminal groups, and it is often committed in conjunction with other crimes, in particular the trafficking in firearms. Similarly, the trafficking in stolen vehicles cannot only generate profits but also represents an enabling crime to provide for the necessary instrumentalities to carry out further offences. In addition, it is key to include tax crimes to the extent it is committed as part of a criminal organisation in the scope of the Directive, as this specific crime is an enabling source of profits, especially when operating in a cross-border context. Typical techniques employed to commit tax fraud or evasion consist of making use of cross-border corporate structures or similar arrangements to fraudulently obtain tax benefits and refunds, hide assets or profits, merge legal with illicit profits and assets or to transfer them to other entities abroad to disguise their origins or (beneficial) ownership.
Amendment 97 #
Proposal for a directive
Recital 12
Recital 12
(12) In order to capture property which might be transformed and transferred in order to conceal its origin, and in order to ensure harmonisation and clarity of definitions across the Union, property that can be subject to freezing and confiscation should be defined broadly. It should cover legal documents or instruments, in any form, including electronic or digital, evidencing title or interest in property subject to freezing and confiscation including, for example, financial instruments, or documents that may give rise to creditor claims and are normally found in the possession of the person affected by the relevant procedures, as well as trusts. This Directive is without prejudice to the existing national procedures for keeping legal documents or instruments evidencing title or interest in property, as they are applied by the competent national authorities or public bodies in accordance with national law. The definition should cover all forms of property, including crypto assets.
Amendment 100 #
Proposal for a directive
Article 15 – paragraph 1 – point d
Article 15 – paragraph 1 – point d
(d) immunity from prosecution of the suspected or accused person, as provided for under national or international law;
Amendment 102 #
Proposal for a directive
Article 15 – paragraph 1 – point f
Article 15 – paragraph 1 – point f
Amendment 113 #
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. The right of the defendant to be made aware of the proceeding and to be represented by a lawyer should not be affected.
Amendment 116 #
Proposal for a directive
Article 17 – paragraph 2
Article 17 – paragraph 2
2. Member States shall consider taking measures allowing confiscated property to be used for public interest or social purposes, without prejudice to Article 18 of this Directive. Such property may be kept as state property for justice, law enforcement, public service or economic purposes or be transferred to the local or regional authorities where the property is located, for institutional, social or economic purposes including for assignement to organsations carrying out work of social interest.
Amendment 119 #
Proposal for a directive
Article 17 – paragraph 2 a (new)
Article 17 – paragraph 2 a (new)
2 a. Where the confiscated asets originated in a third country, Member States shall return them to the third country based on a publicly available return agreement.
Amendment 121 #
Proposal for a directive
Recital 29
Recital 29
(29) To ensure that property that is or may become subject to a freezing or confiscation order maintains its economic value Member States should put in place effective management measures. Such, unless the urgency of a case would require foregoing such measures. Those measures should include a systematic assessment of how to best preserve and optimise the value of property before the adoption of freezing measures, also known as pre-seizure planning. Any decision by the competent authorities to forego such assessment of the costs shall be duly justified.
Amendment 127 #
Proposal for a directive
Article 19 – paragraph 2
Article 19 – paragraph 2
2. Member States shall ensure that, before issuing a freezing order within the meaning of Article 11 paragraph 1, competent authorities responsible for the management of frozen and confiscated property carry out an assessment of the costs which may be incurred in the management of the property which may be frozen, for the purposes of preserving and optimizing the value of such property until its disposal, unless the urgency of a case would require foregoing such measure. Any decision by the competent authorities to forego such assessment of the costs shall be duly justified.
Amendment 137 #
Proposal for a directive
Article 23 – paragraph 4 – subparagraph 2
Article 23 – paragraph 4 – subparagraph 2
In the case of confiscation orders pursuant to Article 13, such circumstance shall include facts and circumstances on which the finding was based that the third party knew or ought to have known that the purpose of the transfer or acquisition was to avoid confiscation. Such facts and circumstances may be that the transfer or acquisition was carried out free of charge or in exchange for an amount significantly lower than the market value.
Amendment 138 #
Proposal for a directive
Article 2 – paragraph 1 – point m
Article 2 – paragraph 1 – point m
(m) environmental crime, including illicit trade and trafficking in endangered animal species and in endangered plant species and varietiesand plant species, including their body parts or products derived from them, as defined in in Directive 2008/99/EC of the European Parliament and of the Council50, as well as offences related to ship pollution as defined in Directive 2005/35/EC as amended by Directive 2009/123/EC51; _________________ 50 Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law (OJ L 328, 6.12.2008, p. 28). 51 Directive 2009/123/EC of the European Parliament and of the Council of 21 October 2009 amending Directive 2005/35/EC on ship-source pollution and on the introduction of penalties for infringements (OJ L 280, 27.10.2009, p. 52).
Amendment 161 #
Proposal for a directive
Article 3 – paragraph 1 – point 2
Article 3 – paragraph 1 – point 2
(2) ‘property’ means property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments, in any form, including electronic or digital, evidencing title or interest in such property;
Amendment 222 #
Proposal for a directive
Article 9 – paragraph 6 – point b a (new)
Article 9 – paragraph 6 – point b a (new)
(ba) or otherwise would not be in accordance with fundamental principles of national law.
Amendment 255 #
Proposal for a directive
Article 15 – paragraph 1 – point d
Article 15 – paragraph 1 – point d
(d) immunity from prosecution of the suspected or accused person, as provided for under national or international law;
Amendment 258 #
Proposal for a directive
Article 15 – paragraph 1 – point f
Article 15 – paragraph 1 – point f
Amendment 274 #
Proposal for a directive
Article 17 – paragraph 2
Article 17 – paragraph 2
2. Member States shall consider taking measures allowing confiscated property to be used for public interest or social purposes, without prejudice to Article 18 of this Directive. Such property may be kept as state property for justice, law enforcement, public service or economic purposes or be transferred to the local or regional authorities where the property is located, for institutional, social or economic purposes including for assignment to organisations carrying out work of social interest.
Amendment 278 #
Proposal for a directive
Article 17 – paragraph 2 a (new)
Article 17 – paragraph 2 a (new)
2a. Where the confiscated assets originated in a third country, Member States shall return them to the third country based on a publicly available return agreement.
Amendment 288 #
Proposal for a directive
Article 19 – paragraph 2
Article 19 – paragraph 2
2. Member States shall ensure that, before issuing a freezing order within the meaning of Article 11 paragraph 1, competent authorities responsible for the management of frozen and confiscated property carry out an assessment of the costs which may be incurred in the management of the property which may be frozen, for the purposes of preserving and optimizing the value of such property until its disposal, unless the urgency of a case would require foregoing such measure. Any decision by the competent authorities to forego such assessment of the costs shall be duly justified.
Amendment 305 #
In the case of confiscation orders pursuant to Article 13, such circumstance shall include facts and circumstances on which the finding was based that the third party knew or ought to have known that the purpose of the transfer or acquisition was to avoid confiscation. Such facts and circumstances may be that the transfer or acquisition was carried out free of charge or in exchange for an amount significantly lower than the market value.