28 Amendments of Daniel BUDA related to 2022/0167(COD)
Amendment 50 #
Proposal for a directive
Recital 21
Recital 21
(21) Given the limitation on the right to property imposed by freezing orders, such provisional measures should ensure full respect for the principle of proportionality and should not be maintained longer than necessary to preserve the availability of the property with a view to possible subsequent confiscation. This may require a review by the national courtConfiscation orders should be subject to review by the competent national authorities in order to ensure that the purpose of preventing the destruction or dissipation of property remains valid.
Amendment 55 #
Proposal for a directive
Recital 20
Recital 20
(20) Confiscation leads to theloss of private property with the immediate consequence of final deprivation of such property. However, preservation of property can be a prerequisite to confiscation and is often essential for the effective tracing of property or proceeds directly or indirectly derived from criminal activities, and for the effective enforcement of a confiscation order. Property is duly preserved by means of freezing. In order to prevent the dissipation or deterioration of property before a freezing order can be issued, the competent authorities in the Member States, including asset recovery offices, should be empowered to take immediate action in order to secure such property. With a view to taking those measures in a proportionate and appropriate manner and without undue delay, the competent authorities concerned should have sufficient and qualified staff and the capacity for cooperation both at national level, between the relevant authorities, and at a cross-border level.
Amendment 57 #
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 proven 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.
Amendment 58 #
Proposal for a directive
Recital 26
Recital 26
(26) Confiscation should also be possible where a court is satisfied, based on all the evidence in the case, that the instrumentalities, proceeds, or property in question is unquestionably 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, while at the same time a reasonable and proportional time limit should apply. Confiscation in such cases should only be allowed where the national court is satisfied, on the basis of all the evidence in the case, that all the elements of the offence are present and that the instrumentalities, proceeds or property in question are unquestionably derived from criminal activities. For reasons of proportionality, confiscating property without a prior conviction should only occur in exceptional cases and should be limited to cases of serious crimes. TIn no circumstances should the right of the defendant to be made aware of the proceeding and to be represented by a lawyer should not be affected.
Amendment 65 #
Proposal for a directive
Recital 28
Recital 28
(28) Due to the intrinsically opaque nature of organised crime, it is not always possible to link property derived from criminal activities to a specific criminal offence and confiscate such property. In such exceptional situations, confiscation should be possible under certain clearly delimited and proportional conditions, including in particular: the property is frozen based on suspicion of crimes committed within the framework of a criminal organisation, these criminal offences are liable to give rise to substantial economic benefits and the court is satisfied, based on all the administrative evidence in the case, that the frozen property is unquestionably derived from criminal activities carried out within the framework of a criminal organisation. These conditions should ensure that confiscation of property not linked to a specific offence for which the owner has been convicted is limited to criminal activities of criminal organisations that are serious in nature and liable to generate substantial financial benefits. When determining whether the offences are liable to give rise to significantubstantial financial benefits, Member States should take into account all relevant circumstances of the offence, including whether the criminal activities were committed with the intention to generate regular substantial profinancial benefits. While it should not be a precondition for the national court to be satisfied that a criminal offence has been committed, the court must be satisfied that the property in question is unquestionably derived from criminal offences. When determining whether or not the property in question derived from criminal activities, the national courts should take into account all the pertinent and conclusive evidence and relevant circumstances of the case, including the fact that the property is substantially disproportionate to the lawful income of the owner. Member States should then require and award an effective possibility for the owner of, if close ties are proven between the crime committed and theat property to prove that the property in question derives from lawful activities. In either case, the presumption of innocence shall apply.
Amendment 70 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
1. To facilitate cross-border cooperation, Member States shall take measures to enable the swift tracing and identification of instrumentalities and proceeds, or property which may become or is the object of a freezing or confiscation order in the course of criminal proceedings.
Amendment 80 #
Proposal for a directive
Article 11 – paragraph 2
Article 11 – paragraph 2
2. Freezing measures shall include immediate, proportional and effective action to be taken when necessary in order to preserve the property.
Amendment 81 #
Proposal for a directive
Article 11 – paragraph 3
Article 11 – paragraph 3
3. Member States shall enable asset recovery offices to take immediate action, where necessary, pursuant to paragraph 2 until a freezing order pursuant to paragraph 1 is issued. The validity of such temporary urgent freezing measures shall not exceed the time period laid down in national law and, in the absence of such a period, shall not exceed seven days.
Amendment 82 #
Proposal for a directive
Article 11 – paragraph 4
Article 11 – paragraph 4
4. Property in the possession of a third party can be subject to freezing measures pursuant to paragraphs 1, 2 and 3, where this is proven to be necessary to ensure a possible confiscation under article 13.
Amendment 84 #
Proposal for a directive
Article 11 – paragraph 7
Article 11 – paragraph 7
7. Where the property to be frozen consists of entities that should be preserved as a going concern, such as undertakings, the freezing order shall include measures to exclude access to this property by the persons owning or controlling them while allowing for continued operations under normal conditions.
Amendment 88 #
Proposal for a directive
Article 13 – paragraph 1 – subparagraph 1
Article 13 – paragraph 1 – subparagraph 1
Amendment 90 #
Proposal for a directive
Article 13 – paragraph 1 – subparagraph 2
Article 13 – paragraph 1 – subparagraph 2
The confiscation of these proceeds or other property shallmay 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 proven 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 93 #
Proposal for a directive
Article 15 – paragraph 1 – introductory part
Article 15 – paragraph 1 – introductory part
Amendment 94 #
Proposal for a directive
Article 15 – paragraph 1 – point b
Article 15 – paragraph 1 – point b
(b) absconding of the suspected or accused person, if this results in the expiry of the time limits laid down in national law for criminal liability;
Amendment 103 #
Proposal for a directive
Article 15 – paragraph 1 – point f
Article 15 – paragraph 1 – point f
(f) the time limits prescribed by national law have expired, where such limits are not sufficiently long to allow for the effective investigation and prosecution of the relevant criminal offences, while keeping to a reasonable and proportional limitation period.
Amendment 106 #
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. , on the basis of all the evidence adduced in the case, that all the elements of the offence are present and that the substantial economic benefits accruing are the result of instruments, proceeds or property unequivocally derived from the criminal activities in question.
Amendment 108 #
Proposal for a directive
Article 15 – paragraph 3
Article 15 – paragraph 3
3. Before a confiscation order within the meaning of paragraphs 1 and 2 is issued by the court, Member States shall ensure that the affected person’s right to presumption of innocence and rights of defence are respected including by awarding access to the file and the right to be heard on issues of law and fact.
Amendment 110 #
Proposal for a directive
Article 16 – paragraph 1 – introductory part
Article 16 – paragraph 1 – introductory part
1. Member States shall take the necessary measures to enable the confiscation of property, where confiscation is not possible pursuant to Articles 12 to 15 and at least the following conditions are cumulatively fulfilled:
Amendment 111 #
Proposal for a directive
Article 16 – paragraph 1 – point b a (new)
Article 16 – paragraph 1 – point b a (new)
Amendment 112 #
Proposal for a directive
Article 16 – paragraph 1 – point c
Article 16 – paragraph 1 – point c
(c) the national court is satisfied on the basis of all evidence adduced that the frozen property is unequivocally derived from criminal offences committed in the framework of a criminal organisation.
Amendment 124 #
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 take the necessary measures to ensure that the confiscation measure does not affect victims’ rights to obtain compensation for their claims, with the rights of victims to compensation and their hierarchical order of priority being established under the national law of each Member State.
Amendment 128 #
Proposal for a directive
Article 20 – paragraph 1 – introductory part
Article 20 – paragraph 1 – introductory part
1. Member States shall ensure that property frozen pursuant to Article 11 paragraph 1 cannot be transferred or sold before the issuing of a confiscation order, except in one or more of the following circumstances:
Amendment 129 #
Proposal for a directive
Article 20 – paragraph 1 – point a
Article 20 – paragraph 1 – point a
(a) the property subject to freezing is perishable or rapidly depreciating at a speed that exceeds the timeframe for the proceedings;
Amendment 130 #
Proposal for a directive
Article 20 – paragraph 1 – point b
Article 20 – paragraph 1 – point b
(b) the storage or maintenance costs of the property are disproportionate to its market value;
Amendment 132 #
Proposal for a directive
Article 20 – paragraph 1 – point c
Article 20 – paragraph 1 – point c
(c) the property is too difficult to administer, or its management requires special conditions and non-readily available expertise.
Amendment 133 #
Proposal for a directive
Article 20 – paragraph 2
Article 20 – paragraph 2
Amendment 135 #
Proposal for a directive
Article 20 – paragraph 3
Article 20 – paragraph 3
3. Earnings from interlocutory sales shouldall be secured until a final judicial decision on confiscation is reached. Member States shall take appropriate measures to protect third party buyers of property sold from retaliatory measures, to ensure that the property sold is not returned to persons convicted of the criminal offences referred to in Article 2.
Amendment 138 #
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 the fact that the instruments, proceeds or property in question are considered to be derived from criminal activity.