Activities of Caterina CHINNICI 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 (39)
Amendment 47 #
Proposal for a directive
Recital 3 a (new)
Recital 3 a (new)
(3 a) States should adopt, according to the circumstances and with the priority of full respect for the right to compensation to victims, measures allowing the use of confiscated property for purposes of public or social interest. Several Member States have adopted, more than twenty years ago, specific legislation providing for the direct or indirect reuse of confiscatedy property for purposes of public or social interest, benefitting from multiple positive aspects deriving from the reuse, both for public finances and for its symbolic value, as a visible counter- message for the affirmation of the principle of legality and the relaunching of the territories marked by the presence of organized crime
Amendment 56 #
Proposal for a directive
Recital 24
Recital 24
(24) The practice by a suspected or accused person of transferring property or proceeds to a knowing third party with a view to avoiding confiscation is common and widespread. Acquisition by a third party refers to situations where, for example, property has been acquired, directly or indirectly, for example through an intermediary, by the third party from a suspected or accused person, including when the criminal offence has been committed on their behalf or for their benefit, and when an accused person does not have property that can be confiscated. Such confiscation should be possible in cases where it has been established that 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 was carried out free of charge or in exchange for an amount significantly lower than the market value. The rules on third party confiscation should extend to both natural and legal persons, without prejudice to the right of third parties to be heard, including the right to claim ownership of the property concerned. In any event, the rights of bona fide third parties should not be affected. Taking into account that organized crime has over time developed considerable entrepreneurial ability, in order to launder the profits of criminal activities in the real economy, by establishing fictitious companies and corporations, through the use of a front man, it follows that, in any event, the rights of bona fide third parties should not be affected. However, those third parties, considering the prevailing/overriding public interest in combating the criminal phenomenon compared to the need to protect legal situations of persons unrelated to the recovery and confiscation procedure, bear the burden of proving that the purchasing of the confiscated property has taken place in bona fide and with due diligence.
Amendment 63 #
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 and international 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 71 #
Proposal for a directive
Article 4 – paragraph 2 a (new)
Article 4 – paragraph 2 a (new)
2 a. 3. Asset tracing investigations pursuant to paragraph 1 shall be carried out for the purpose of restitution and compensation to victims.
Amendment 78 #
Proposal for a directive
Recital 2
Recital 2
(2) The main motive for cross-border organised crime, including high-risk criminal networks, is financial gain. In fact, organised crime has become an economic worldwide operator, with an entrepreneurial vocation and specialised in supply of goods and services, not only illegal but also legal. Therefore, to tackle the serious threat posed by organised crime, competent authorities should be given the means to effectively trace and identify, freeze, confiscate and manage the instrumentalities and proceeds of crime and property that stems from criminal activities.
Amendment 92 #
Proposal for a directive
Article 13 – paragraph 2
Article 13 – paragraph 2
2. Paragraph 1 shall not affect the rights of bona fide third parties who bear, however, the burden of proving that the purchasing of the confiscated property has taken place in bona fide and with due diligence.
Amendment 92 #
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. 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. In addition, criminal organisations often resort to violence, threat or intimidation in order to acquire control or management of economic activities, concessions, authorisations, procurement and public services, or to achieve unfair profits or advantages, thereby adversely affecting freedom of competition, or to prevent or hinder the free exercise of voting or to procure votes in elections, thus affecting democratic life. Such crimes should therefore also be included in the scope of the Directive.
Amendment 98 #
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 and international law;
Amendment 109 #
Proposal for a directive
Recital 24
Recital 24
(24) The practice by a suspected or accused person of transferring property or proceeds to a knowing third party with a view to avoiding confiscation is common and widespread. Acquisition by a third party refers to situations where, for example, property has been acquired, directly or indirectly, for example through an intermediary, by the third party from a suspected or accused person, including when the criminal offence has been committed on their behalf or for their benefit, and when an accused person does not have property that can be confiscated. Such confiscation should be possible in cases where it has been established that 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 was carried out free of charge or in exchange for an amount significantly lower than the market value. The rules on third party confiscation should extend to both natural and legal persons, without prejudice to the right of third parties to be heard, including the right to claim ownership of the property concerned. In any event, the rights of bona fide third parties should not be affected. However, taking into account that organised crime has over time developed considerable entrepreneurial ability, in order to launder the profits of criminal activities in the legal economy, by establishing fictitious companies and corporations, through the use of a front man, and considering the prevailing public interest in combating the criminal phenomenon compared to the need to protect legal situations of persons unrelated to the confiscation and recovery procedure, those third parties should bear the burden of proving that the transfer or acquisition has taken place in bona fide and with due diligence.
Amendment 115 #
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 and international 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 117 #
Proposal for a directive
Article 17 – paragraph 2
Article 17 – paragraph 2
2. Member States shall consider takingtake, with the priority of full respect for the right to compensation to victims, measures allowing confiscated property to be used for public interest or social purposes.
Amendment 119 #
Proposal for a directive
Recital 28 a (new)
Recital 28 a (new)
(28a) Economic and financial crime, especially organised crime, often act through legal persons, and the criminal offences included in the scope of this Directive may be committed in the interest or for the benefit of such legal persons. Therefore, freezing and confiscation orders should be issued also against legal persons.
Amendment 120 #
Proposal for a directive
Article 18 – title
Article 18 – title
Victims compensation and restitution of property to victims
Amendment 122 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
Where, as a result of a criminal offence, victims have claims against the person who is subject to a confiscation measure provided for under this Directive, Member States shall, as a matter of priority, take the necessary measures to ensure that the confiscation measure does not affect victims’ rights to obtain compensation for their claims as stipulated in Directive 2004/80/EC on compensation to victims of crimes. Member States shall ensure that, where money was obtained as a result of the execution of a confiscation order, the corresponding sum, shall be transferred to the victim for the purpose of compensation, in so far as it does not exceed the recognized amount of compensation awarded.
Amendment 122 #
Proposal for a directive
Recital 29 a (new)
Recital 29 a (new)
(29a) Organised crime affects not only the victims of the crimes committed by criminal organisations, but also the society as a whole. Therefore, without prejudice to victims' rights to compensation or restitution, and according to all the circumstances, Member States should adopt measures allowing the use of confiscated property for public interest or social purposes. Several Member States have adopted, more than twenty years ago, specific legislation providing for the direct or indirect reuse of confiscated property for purposes of public or social interest, benefitting from multiple positive aspects deriving from the reuse, both for public finances and for its symbolic value, as a visible counter-message for the affirmation of the values of justice and legality and the relaunching of the territories marked by the presence of organised crime.
Amendment 153 #
Proposal for a directive
Article 2 – paragraph 2 – point j a (new)
Article 2 – paragraph 2 – point j a (new)
(ja) violence, threat or intimidation, committed to acquire directly or indirectly the management or control of economic activities, of concessions, of authorisations, procurement and public services, or to achieve unfair profits or advantages, or to prevent or impede the free exercise of voting or to procure votes in the context of electoral consultations.
Amendment 162 #
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, including crypto assets, and legal documents or instruments evidencing title or interest in such property;
Amendment 166 #
Proposal for a directive
Article 3 – paragraph 1 – point 9 a (new)
Article 3 – paragraph 1 – point 9 a (new)
(9a) ‘legal person’ means any legal entity having such status under the applicable national law, except for States or public bodies exercising State authority and for public international organisations;
Amendment 172 #
Proposal for a directive
Article 4 – paragraph 2 a (new)
Article 4 – paragraph 2 a (new)
2a. Asset tracing investigations pursuant to paragraph 1 shall be carried out also for the purposes of restitution and compensation to victims.
Amendment 188 #
Proposal for a directive
Article 6 – paragraph 1 – point b a (new)
Article 6 – paragraph 1 – point b a (new)
(ba) beneficial owners registers
Amendment 189 #
Proposal for a directive
Article 6 – paragraph 1 – point b b (new)
Article 6 – paragraph 1 – point b b (new)
(bb) relevant high value goods or assets registers
Amendment 191 #
Proposal for a directive
Article 6 – paragraph 1 – point g
Article 6 – paragraph 1 – point g
Amendment 194 #
Proposal for a directive
Article 6 – paragraph 1 a (new)
Article 6 – paragraph 1 a (new)
Amendment 221 #
Proposal for a directive
Article 9 – paragraph 6 – point b a (new)
Article 9 – paragraph 6 – point b a (new)
(ba) violate the requested Member States’ obligations under Article 6 of the Treaty on European Union.
Amendment 226 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
1. Member States shall take the necessary measures to enable the freezing of property necessary to ensure a possible confiscation of that property under Article 12, or to secure victims' rights to compensation or restitution pursuant to Article 18.
Amendment 234 #
Proposal for a directive
Article 11 – paragraph 5 a (new)
Article 11 – paragraph 5 a (new)
5a. Member States shall take the necessary measures to ensure that the freezing orders pursuant to paragraphs 1, 2, 3 and 4 are issued also against legal persons, when they can be held liable for the criminal offences referred to in Article 2, or where they are third parties in possession of the property.
Amendment 239 #
Proposal for a directive
Article 12 – paragraph 2 a (new)
Article 12 – paragraph 2 a (new)
2a. Member States shall take the necessary measures to enable confiscation pursuant to paragraphs 1 and 2 also against legal persons, where they can be held responsible for the criminal offences referred to in Article 2.
Amendment 241 #
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 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, including legal persons, or which were acquired by third parties from a suspected or accused person.
Amendment 244 #
Proposal for a directive
Article 13 – paragraph 2
Article 13 – paragraph 2
2. Paragraph 1 shall not affect the rights of bona fide third parties who bear, however, the burden of proving that the transfer or acquisition took place in bona fide and with due diligence.
Amendment 248 #
Proposal for a directive
Article 15 – paragraph 1 – introductory part
Article 15 – paragraph 1 – introductory part
1. Member States shall take the necessary measures to enable, under the conditions set out in paragraph 2, the confiscation of instrumentalities and proceeds, or property as referred to in Article 12, or which was transferred to third parties as referred to in Article 13, at least in cases where criminal proceedings have been initiated but the proceedings could not be continued because of the following circumstances:
Amendment 254 #
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 and international law;
Amendment 263 #
Proposal for a directive
Article 15 – paragraph 4 a (new)
Article 15 – paragraph 4 a (new)
4a. Member States shall take the necessary measures to enable confiscation pursuant to this Article also against legal persons, where they can be held responsible for the criminal offences referred to in paragraph 4.
Amendment 269 #
Proposal for a directive
Article 16 – paragraph 3 a (new)
Article 16 – paragraph 3 a (new)
3a. Member States shall take the necessary measures to enable confiscation pursuant to this Article also against legal persons, where they can be held responsible for the criminal offences referred to in paragraph 3.
Amendment 273 #
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 purposeWhere the confiscated property is derived from criminal offences committed in the framework of a criminal organisation, without prejudice to the victims' rights to compensation or restitution, Member States shall take measures allowing confiscated property to be used for public interest or social purposes. Such measures may include the granting of property, free of charge and in accordance with the principles of transparency, appropriate publicity and equal treatment, to non-profit-seeking entities and organisations.
Amendment 280 #
Proposal for a directive
Article 18 – title
Article 18 – title
Victims compensation and restitution of property to victims
Amendment 282 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
Where, as a result of a criminal offence, victims have claims against the person who is subject to a confiscation measure provided for under this Directive, Member States shall, as a matter of priority, take the necessary measures to ensure that the confiscation measure does not affect victims’ rights to obtain compensation for their claims. as stipulated in Council Directive 2004/80/EC1a. _________________ 1a Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims, (OJ L 261, 6.8.2004, p. 15)
Amendment 285 #
Proposal for a directive
Article 18 – paragraph 1 a (new)
Article 18 – paragraph 1 a (new)
Where money was obtained as a result of the execution of a confiscation order, Member States shall take the necessary measures to ensure that the corresponding sum is transferred to the victim for the purposes of compensation, in so far as it does not exceed the amount of compensation awarded.
Amendment 286 #
Proposal for a directive
Article 18 – paragraph 1 b (new)
Article 18 – paragraph 1 b (new)
Where, as a result of a criminal offence, a victim is entitled to restitution of property subject to confiscation, Member States shall, as a matter of priority, take the necessary measures to restitute the property concerned to the victim. Where such restitution of the property is not possible, but money has been obtained as a result of the execution of a confiscation order in relation to that property, the corresponding sum shall be transferred to the victim for the purposes of restitution.
Amendment 330 #
Proposal for a directive
Article 26 – paragraph 5 a (new)
Article 26 – paragraph 5 a (new)
5a. Member States shall designate the competent authority or authorities that will be responsible for the management of the centralised registries put in place pursuant to paragraph 1 and thus will take the role of data controller in accordance with Article 3(8) of Directive (EU) 2016/680 of the European Parliament and of the Council 1a. _________________ 1a Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA, (OJ L 119, 4.5.2016, p. 89)