Activities of Monica MACOVEI related to 2012/0036(COD)
Plenary speeches (2)
Freezing and confiscation of proceeds of crime (debate)
Freezing and confiscation of proceeds of crime (debate)
Reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on the freezing and confiscation of proceeds of crime in the European Union PDF (282 KB) DOC (394 KB)
Amendments (34)
Amendment 31 #
Proposal for a directive
Recital 1
Recital 1
(1) The main motive for cross-border organised crime is financial gain. In order to be effective, law enforcement and judicial authorities should be given the means to trace, freeze, manage and confiscate the proceeds of crime. most crime, and particularly cross-border organised crime, including mafia-type criminal organization, is financial gain. In order to be effective, appropriate competent authorities should be given the means to trace, freeze, manage and confiscate the proceeds of crime. However, effective prevention of and fight against organized crime should not be limited to the neutralization of the proceeds of crime but should be extended, in some cases, even to property in any way related to such criminal associations. It is not enough, therefore, merely to ensure mutual recognition in the EU of seizure and confiscation of proceeds of crime. An effective fight against economic crime would also require the mutual recognition of measures taken in a different field from that of criminal law or otherwise adopted in the absence of a criminal conviction and that they have as their object, more broadly, any possible asset or income attributable to a criminal organization or to a person with a criminal conduct or suspected to belong to a criminal organization.
Amendment 40 #
Proposal for a directive
Recital 9
Recital 9
(9) Confiscation of instrumentalities and proceeds following a final decision of a court and of property of equivalent value to those proceeds should therefore refer to this broadened concept for the criminal offences covered by this Directive. Framework Decision 2001/500/JHA required Member States to enable the confiscation of instrumentalities and proceeds of crime following a final conviction and to enable the confiscation of property of equivalent value to the proceeds of crime. Such obligations should be maintained for the criminal offences not covered by this Directive and the concept of proceeds as defined in this Directive should be extended also for the criminal offences not covered by this Directive.
Amendment 41 #
Proposal for a directive
Recital 11
Recital 11
(11) In accordance with the principle of ne bis in idem it is appropriate to exclude from extended confiscation the proceeds of alleged criminal activities for which the affected person has been finally acquitted in a previous trial or in other cases where the ne bis in idem principle applies. Extended confiscation should also be excluded where the similar criminal activities could not be the subject of criminal proceedings due to prescription under national criminal law.
Amendment 46 #
Proposal for a directive
Recital 12
Recital 12
(12) The issuance of confiscation orders generally requires a criminal conviction. In some cases, even where a criminal conviction cannot be achieved, it should stillanyhow be possible to confiscate assets in order to disrupt criminal activities and ensure that profits resulting from criminal activities are not reinvested into the licit economy. Some Member States allow confiscation where there is insufficient evidence for a criminal prosecution or regardless a criminal prosecution, if a court considers, on the balance of probabilities, that the property is of illicit originof a person socially dangerous or having a criminal lifestyle is of illicit origin or disproportionate if compared to his declared income, and also in situations where a suspect or accused person becomes a fugitive to avoid prosecution, is unable to stand trial for other reasons or died before the end of criminal proceedings. This is referred to as non- conviction based confiscation. Provision should be made to enable non-conviction based confiscation in at least the latterabove mentioned, limited, circumstances in all Member States, including the mutual recognition to such non conviction-based orders. This is in line with Article 54.1.c) of the United Nations Convention against Corruption, which provides that each State Party is to consider taking the necessary measures to allow confiscation of illicitly acquired property without a criminal conviction, including in cases in which the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases.
Amendment 49 #
Proposal for a directive
Recital 13
Recital 13
(13) The practice by a suspected or accused person of transferring property to a knowing third party with a view to avoiding confiscation is common and increasingly widespread. The current Union legal framework does not contain binding rules on the confiscation of property transferred to third parties. Therefore it is becoming increasingly necessary to allow for confiscation of property transferred to third parties, which should normally take place when an accused person does not have property that can be confiscated. It is appropriate to provide for third party confiscation, under certain conditions, following an assessment, based on specific facts, that the confiscation of property of the convicted, suspected or accused person is unlikely to succeed, or in situations where unique objects must be restored to their rightful owner. Furthermore, tor acquired by third parties. To protect the interests of bona fide third parties, such confiscation should only be possible if the third party knew or should have been known that property was the instrumentalities or the proceeds of crime or was transferred in order to avoid confiscation andor if it was given for free or transferred in exchange for an amount significantly lower than its market value.
Amendment 51 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13a) In order to grant a more efficient fight against criminal organizations and serious crime, complying with already existing experiences, Member States should introduce in their criminal system an offence to punish and prosecute those behaviours aimed at fictitiously attributing ownership and availability of property to third parties, with the aim to avoid seizure or confiscation measures. Also the support in committing this offence should be suitably punished.
Amendment 53 #
Proposal for a directive
Recital 15
Recital 15
(15) Suspected or accused persons often hide property throughout the entire duration of criminal proceedings. As a result confiscation orders cannot be executed, leaving those subject to confiscations orders to benefit from their property once they have served their sentence. It is accordingly necessary to enable the determination of the precise extent of the property to be confiscated even after a final conviction for a criminal offence, in order to permit the full execution of confiscation orders when no property or insufficient property was initially discovered and the confiscation order remains unexecuted. Given the limitation of the right to property by freezing orders, such provisional measures should not be maintained longer than necessary to preserve the availability of the property with a view of possible future confiscation. This may require a regular, where necessary, a review by the court in order to ensure that their purpose of preventing the dissipation of property remains valid.
Amendment 57 #
Proposal for a directive
Recital 16 a (new)
Recital 16 a (new)
(16a) In order that civil society can concretely perceive the effectiveness of the action of the Member states against organized crime, including mafia type, and that proceeds are actually detracted from the criminals, it is necessary to adopt common measures to avoid that the criminal organizations take possession another time of property illicitly obtained. Best practices in several Member States have shown to be effective tools: management and administration by Asset Management Offices (AMO) or similar mechanisms, as well as the use of the confiscated property for projects aimed to contrast and prevent crime, for other institutional or public purposes or social use.
Amendment 61 #
Proposal for a directive
Recital 17
Recital 17
(17) Reliable data sources on the freezing and confiscation of the proceeds of crime are scarce. In order to allow for the evaluation of this Directive, it is necessary to collect a comparable minimum set of appropriate statistical data on asset tracing, judicial and asset management and disposal activities.
Amendment 65 #
Proposal for a directive
Recital 18 a (new)
Recital 18 a (new)
(18a) Some Member States have already successfully adopted non conviction-based systems of confiscation. As a matter of facts, the European Court of Human Rights (ECHR) has never considered as a violation of fundamental rights, sanctioned in the Charter of Fundamental Rights of the European Union and in the European Convention on Human Rights, the fact that individuals can be subjected to such a measure of privation of their goods.
Amendment 67 #
Proposal for a directive
Recital 20
Recital 20
(20) Since the objective of this Directive, namely facilitating confiscation of property in criminal matters, cannot be sufficiently achieved by the Member States and can be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.
Amendment 68 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
This Directive establishes minimum rules on the seizure or freezing of property with a view to possible later confiscation and, on the confiscation of property in criminal matters and without a criminal conviction and on the management and disposal of confiscated property.
Amendment 69 #
Proposal for a directive
Article 1 – paragraph 1 a (new)
Article 1 – paragraph 1 a (new)
This Directive is without prejudice to the court procedures that Member States may use in order to deprive the perpetrator of the property in question.
Amendment 77 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
(4) ‘'confiscation’' means a penalty or a measure, ordered by a court following proceedings in relation to a criminal offence resulting in the final deprivation of property;
Amendment 78 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
(5) ‘'freezing’' or seizure means the temporary prohibition of the transfer, destruction, conversion, disposition or movement of property or temporarily assuming custody or control of property;
Amendment 79 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
(6a) as well as any other legal instruments if these instruments provide specifically that this Directive applies to criminal offences harmonised therein.
Amendment 83 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Each Member State shall take the necessary measures to enable itjudicial authorities to confiscate, either wholly or in part, instrumentalities and proceeds followingor property the value of which corresponds to such instrumentalities and proceeds, subject to a final conviction for a criminal offence.
Amendment 87 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
Amendment 96 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Each Member State shall adopt the necessary measures to enable itcompetent authorities to confiscate, either wholly or in part, property belonging to a person convicted of a criminal offence where, based on specific facts, a court finds it substantially more probable that the property in question has been derived by the convicted person from similar criminal activities than from other activities such as that the value of property is disproportionate to the lawful income of the convicted person, a court finds it on the balance of probabilities that the property in question has been acquired unlawfully.
Amendment 107 #
Proposal for a directive
Article 5 – paragraph 1 a (new)
Article 5 – paragraph 1 a (new)
Each Member State shall take the necessary measures to enable judicial authorities to confiscate any assets belonging to a person unable to justify their legitimate origin where a court find, on the basis of specific circumstances and respecting the right of the defence and bona fide third parties, that those assets derive from criminal activities that are allegedly related to that person.
Amendment 116 #
Proposal for a directive
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
(a) proceeds or instrumentalities which were transferred to third parties by a convicted person or on his behalf, or by suspected or accused persons under the circumstances of Article 5directly or indirectly to or acquired by third parties, or
Amendment 119 #
Proposal for a directive
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) other property of the convicted person, which was transferred to or acquired by third parties in order to avoid confiscation of property the value of which corresponds to the proceeds.
Amendment 122 #
Proposal for a directive
Article 6 – paragraph 2 – introductory part
Article 6 – paragraph 2 – introductory part
2. The confiscation of proceeds or property referred to in paragraph 1 shall be possible where the property is subject to restitution or where
Amendment 123 #
Proposal for a directive
Article 6 – paragraph 2 – point a
Article 6 – paragraph 2 – point a
Amendment 126 #
Proposal for a directive
Article 6 – paragraph 2 – point b – introductory part
Article 6 – paragraph 2 – point b – introductory part
(b) the proceeds or property were transferred for free or in exchange for an amount significantly lower than their market value when the third party:;
Amendment 127 #
Proposal for a directive
Article 6 – paragraph 2 – point b a (new)
Article 6 – paragraph 2 – point b a (new)
(ba) in the case of proceeds, the third party knew about their illicit origin, or, in the absence of such knowledge, a reasonable person in its position would have suspected that their origin was illicit, based on concrete facts and circumstances;
Amendment 128 #
Proposal for a directive
Article 6 – paragraph 2 – point b b (new)
Article 6 – paragraph 2 – point b b (new)
(bb) in the case of other property, the third party knew that it was transferred in order to avoid confiscation of property the value of which corresponds to the proceeds or, in the absence of such knowledge, a reasonable person in its position would have suspected that it was transferred to avoid such confiscation, based on concrete facts and circumstances.
Amendment 131 #
Proposal for a directive
Article 6 a (new)
Article 6 a (new)
Article 6a Fictitious assignment of property to third parties Each Member State takes legislative measures in order to introduce provisions aimed at prosecuting conducts of those who fictitiously attribute ownership and availability of property to third parties, with the aim to avoid seizure or confiscation measures.
Amendment 132 #
Proposal for a directive
Article 7 – title
Article 7 – title
Freezing or seizure
Amendment 135 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Each Member State shall take the necessary measures to enable it to freeze property in danger of being dissipated, hidden or transferred out of the jurisdiction with a view to possible later confiscation. Such measures shall be ordered bys competent authorities to immediately freeze or seize property with a view to possible later confiscation. The person affected by the measures provided for in this Article shall have a right of appeal to a court.
Amendment 149 #
Proposal for a directive
Article 8 – paragraph 5
Article 8 – paragraph 5
5. In the cases referred to in Article 5, the person whose property is affected by the decision to confiscate shall be represented by a lawyer throughout the proceedingsinformed that throughout the proceedings he/she has the right to be represented by a lawyer of choice or to be provided with an ex officio lawyer in accordance with the particular rules existent in the Member State in order to pursue this/her rights of the defence of the person relating to the establishment of the criminal offence and to the determination of the proceeds and instrumentalities.
Amendment 165 #
Proposal for a directive
Article 10 – title
Article 10 – title
Management of frozen, seized and confiscated property
Amendment 168 #
Proposal for a directive
Article 10 – paragraph 2
Article 10 – paragraph 2
2. Each Member State shall ensure that the measures referred to in paragraph 1 to frozen property optimise the economic value of such property, and shall include, only if necessary, the sale or transfer of property which is liable to decline in value. Each Member State shall take all the necessary measures to prevent any criminal infiltration in this phase.
Amendment 170 #
Proposal for a directive
Article 10 – paragraph 2 a (new)
Article 10 – paragraph 2 a (new)
2a. Each Member State shall take the necessary measures, based on existing best practices, to provide for the disposal and the destination of property confiscated. It shall be a priority to destine such property to law enforcement and crime prevention projects as well as to other projects of public interest and social utility. Any other destination of such property shall be considered only if the above mentioned are not possible and in any case each Member State shall take all the necessary measures to prevent any criminal or illegal infiltration in this phase.