The new EU directive on Confiscation : a good (even if still prudent) starting point for the post-Lisbon EU strategy on tracking and confiscating illicit money

(Original version : italian)

by Gabriella Arcifa

Foreword

According to UN estimates the total amount of criminal proceeds generated in 2009 is around $2.1 trillion; however less than 1% of it are frozen and confiscated, proving that dirty money remains in the criminals’ pockets. In a globalized financial world, money laundering is an essential element of facilitate corruption, organized crime, and terrorism, and affect competition with law abiding economy. Tracking and recovering illicit money has then become since the ’90 a political priority at international level. Since then the international acquis is growing steadily. Suffice to remember :

a) the 1990 Council of Europe Convention on laundering, search, seizure and confiscation of the proceeds from crime, of 1990,

b) the 2000 UN Convention against Transnational Organised Crime ;

c) the 2003 United Nations Convention against Corruption (Articles 52-59, which to date has been ratified by the European Union and 23 Member States),

d) the 2008 Council of Europe Convention on laundering, search, seizure and confiscation of the proceeds of crime and on the financing of terrorism (CETS 198), (to date signed by 19 EU Member States and the European Union, and ratified by 11 Member States)

d) the 2010 OECD Financial Action Task Force (FATF) recommendations on Confiscation and Asset recovery (Recommendations 3, 4 and 38)

At European Union level, after the adoption in 1999 of the Tampere European Council Conclusions, a first legislative text on confiscation has been adopted on July 2001: the Framework Decision 2001/500/JHA However it soon appeared soon ineffective because of the MS too wide marge of discretion. It was then soon replaced by the Framework Decision 2005/212/JHAof 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property and by the Framework Decision 2006/783/JHA on mutual recognition of the confiscation orders. Again, even these texts didn’t reach their objective because of the persisting substantial differences among the MS’ legislation so that there was an high number of decisions opposing the confiscation orders issued by another EU MS[i]. To overcome these problems in 2008 the Commission proposed a more ambitious strategy with its Communication “Proceeds of organised crime – Ensuring that ‘crime does no pay’ (COM(2008) 766 final).

However it is only after the entry into force of the Lisbon Treaty and the adoption of the Stockholm Program by the European Council on December 10 2009 that it has been possible to adopt at qualified majority this kind of measures by paving the way to more ambitious common standards.

The new strategy has been endorsed by the 2010 Council Conclusions on Confiscation and Asset Recovery which made reference also to not-conviction-based confiscation procedures[ii] and in the Commission 2010 Communication The EU Internal Security Strategy in Action[iii]” as well as in the 2011 “anti-corruption package” submitted to the European Parliament and the Council in 2011.

Since then tracking the illicit money has become the common objective of several EU legislative measures recently examined by the European Parliament and dealing with

– the protection of EU financial interests

-,the revision of the anti-money laundering directive and the exchange of information linked with the transfer of funds

– the freezing and confiscation of criminal assets.

The new Directive on Confiscation

On March 14 the EU Council of Ministers has adopted the new directive on the freezing and confiscation of the proceeds of crime in the EU (only Poland voted against and UK and DK did’nt take part to the vote. The text was agreed with the European Parliament which adopted its position on February 25 (only EFD group voted against – see here).The agreement has been welcomed by many but concerns have also been raised (for instance by the European Criminal Bar Association – ECBA) which has considered that the new legislation could have an impact on protection of fundamental rights and against the proportionality principle.

The legal basis of the new Directive are art. 82.2 and 83 p. 1 of the TFUE so that it defines the minimum rules to be applied in the EU MS when “..freezing property with a view of possible later confiscation and confiscation of property, recommending general principles for the management and disposal of the confiscation objects[iv].

The new directive has at least the merit to establish a clearer legal framework which can strengthen the judicial cooperation between the EU MS. That having been said it is worth noting that the initial scope of the draft Directive as submitted by the Commission has been significantly reduced during the negotiations between the European Parliament and the Council.

To better understand the dynamics of the interinstitutional negotiation in the following paragraphs the initial negotiation mandate adopted by the Parliamentary Committee (draft report A7-0178/2013 ) is juxtaposed with the final text as adopted by the Plenary (and by the Council). The following aspects require a particular attention :

– the scope

– the definition of proceeds and instrumentalities related to the criminal offence;

– the regime of confiscation;

– the eligibility and the meaning of the “extended confiscation powers”

– the conditions to admit a confiscation from a third party;

– the safeguards.

1) The scope…

It is worth noting that for the first time in an EU legislative act [v]reference is made to mafia-type criminal organisation (see first “whereas” n. 1) although the new Directive does not provide any EU definition of this kind of organised crime.[vi]

The new directive cover all the offences listed in the article 83 TFEU and art. 14 makes clear that it replaces Joint Action 98/699/JHA, point (a) of Article 1 and Articles 3 and 4 of Framework Decision 2001/500/JHA, and the first four indents of Article 1 and Article 3 of Framework Decision 2005/212/JHA. As a consequence art. 2, 4 and 5 of the Framework decision 2005/2012 – will remain into force for criminal activities which fall outside the scope of the Directive (the FD refers to all the criminal offences punishable by deprivation of liberty for more than one year)[vii].

This technique which let “survive” partially a former third pillar act (for criminal offences punishable by deprivation of liberty for more than one year) is questionable because it threatens the principle of legal clarity notably in a domain (judicial cooperation in criminal matters) which may affect fundamental rights. It would had been much better notably after the entry into force of the Lisbon Treaty and of the EU Charter to adopt a new full fledged legislation as required by art. 9 of Protocol 36 of the Lisbon Treaty [viii] which refers to legal acts and not to “rules” (“…the legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon shall be preserved until those acts are repealed, annulled or amended”. )[ix]

2) Confiscation of proceeds and instrumentalities…

The article 3 of the directive concerns the confiscation of instrumentalities, proceeds or property of correspondent value where a final conviction for a criminal offence is disposed by a judicial authority. It represents the traditional type of confiscation widely used among MS.

The article 2 of the directive (definitions) extends the meaning “proceeds” respect to the past FD and gives a definition of “instrumentalities” and “property”. According to the most common definition of “proceeds”, these are intended simply as any economic advantage deriving from a criminal offence, and this generic definition triggered divergent interpretations in the MS case-law.

Now, according the article 2 p. 1 (and in accordance, with the case law of the majority of member states) “proceed” is any advantage which “…derives directly or indirectly from a criminal offence, including any form of property and any subsequent reinvestment or transformation of direct proceeds and any valuable benefits”.

The concept of “property” finds also a new detailed definition: it is intended as “property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title or interest in such property” (art. 2b).

It is worth noting that the LIBE draft report was making reference also to goods held jointly with the spouse. This provision was intended to avoid the frequent and crafty use to transfer the goods fictitiously to the spouse just in view to subtract property from any Court orders. However the LIBE proposal has not be endorsed by the Council.

3) The dual regime of confiscation adopted and the crucial issue regarding the non-conviction based confiscation..

The final text agreed by the EP and the Council does not endorse the initial proposal to establish a full regime also for “non-conviction based confiscation”. According to this regime even in the absence of a criminal conviction, money or any assets could be confiscated where a (civil) court is satisfied or convinced that the money or assets derive from activities of a criminal nature. The State sues the property itself, proving that it was obtained through activities of a criminal nature even if a prison sentence is not sought by the State whose real priority is to stop the dirty money flows. This step is necessary to hamper the cross-border money laundering that can occur also during a criminal investigation, and makes a connection between the criminal activity and the property.

This kind of procedure could had been legally possible as already the United Nations Convention against Corruption just in 2003 invited the States Parties to take “…the necessary measures to allow confiscation of such property without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases” (art. 54 lett. c).

Moreover non-conviction based confiscation is recognised by common law States (e.g. in U.K.and IRL where it is better known as “civil asset forfeiture”)[x].

However the EU legislator did’nt dare to establish this regime and has maintained as a general rule a conviction based confiscation which require a final criminal conviction, (even if with two derogations). The system proposed by the European directive is then different from the “civil asset forfeiture” as confiscation is considered to be taken against a person (so it is not an actio in rem) who could have led, if the person had been able to stand in a trial, to a criminal conviction.

The article 4 of the new Directive obliges MS to take the necessary measures to enable confiscation – of instrumentalities, proceeds or the corresponding value – “subject to a final conviction for a criminal offence“, by making also clear that the power of confiscation exists even in the case of proceedings in absentia. Onlyin case of illness or absconding and where criminal proceedings have been initiated regarding a criminal offence Member States shall take enable the confiscation of instrumentalities and proceeds without a final conviction.

The exact wording is : “…where confiscation on the basis of paragraph 1 is not possible, at least where such impossibility is the result of illness or absconding of the suspected or accused person, Member States shall take the necessary measures to enable the confiscation of instrumentalities and proceedswhere criminal proceedings have been initiated regarding a criminal offence which is liable to give rise, directly or indirectly, to economic benefit, and such proceedings could have led to a criminal conviction if the suspected or accused person had been able to stand trial”.

Indeed, both the original proposal and the text tabled A7-0178/2013contained two different article (3 and 5), distinguishing explicitly between conviction based confiscation and the non-conviction one[xi]. Even in these second case, the not conviction based confiscation would have been applied only within a criminal proceeding for a criminal offence. The EP has tried to introduce a wider provision – not present in the original proposal of the Commission – but it did’nt succeed to convince some influential member states in the Council. In the draft LIBE report the paragraph 1 of the amendment 33 stated that each Member State would have taken the necessary measures to permit to the Courts to be able to confiscate proceeds and instrumentalities without a criminal conviction, if they were convinced, on the base of specific circumstances and all available evidence, that those assets derived from activities of criminal nature[xii].

Thus, it seems that the non-conviction based confiscation wasn’t a secondary hypothesis: the article 5 paragraph 2 took in account also (circumstances added to the general one described above) the situation of suspected or accused person who, if they were been able to stand in a trial, have led to a criminal conviction where:

1) death, illness, permanent or not, results in the person being unfit to stand trial;

2) the illness or flight from prosecution or sentencing prevents effective prosecution in reasonable time with the serious risk that it could be barred by statutory limitations.

Indeed, the Council position has prevailed: the not conviction based confiscation remain only a residual hypothesis. Moreover, as comes up from the text, the LIBE proposal to allow confiscations also in case of death has not been retained. Again this is consistent with the notion of confiscation as a criminal sanction against a person it could not be transferred to heirs. [xiii]

In conclusion, the LIBE attempts to widen the notion of non-conviction-based confiscation has been highly controversial, not only because it is an almost unknown system in many EU Member State of civil law, but also because it is deemed to be a possible source of violation of human rights.[xiv] However, even the European Court of Human Rights, in its decision of 10 july 2007, application n. 696/05, has already stated that the non-conviction based confiscation doesn’t violate the Convention of Human Rights.

4) …the extended powers of confiscation…

An important novelty introduced by the directive is the admissibility of the extended powers of confiscation, “…not only of property associated with a specific crime, but also of additional property which the court determines constitutes the proceeds of other crimes”(referral n.19).

Before describing the solution adopted by the directive, it’s worth recalling that the previous FD provided for three different sets of minimum requirements among which the MS could choose in order to apply this measure. In practice, the wide range of discretion given to the MS have caused a serious hindrance to the mutual recognition, because MS followed different ways to apply the FD, in accordance with their own different concepts of extended confiscation.

More in details, the FD, according to article 3 par. 2, allows MS to choose among one of this options alternatively to apply an extended confiscation if:

a) a national court based on specific facts was fully convinced that the property in question hasd been derived from criminal activities of the convicted person during a period prior to conviction for the offence which is deemed reasonable by the court in the circumstances of the particular case, or, alternately

b) a national court based on specific facts was fully convinced that the property in question had been derived from similar criminal activities of which is deemed reasonable by the court in the circumstances of the particular case, or, alternately

c) where it is established that the value of the property is disproportionate to the lawful income of the convicted person and a national court based on specific facts is fully convinced that the property in question has been derived from the criminal activity of that convicted person.

Indeed, the risk of MS contradictory legislation was already foreseen and according to art. 8 par. 3 a competent authority of the executing State my reject the recognition of confiscation ordered under the extended powers of confiscation. To overcome it the art. 5 of the new Directive define only one and binding way to apply the extended powers of confiscation.

As clearly explained by referral 21 “Extended confiscation should be possible where a court is satisfied that the property in question is derived from criminal conduct. This does not mean that it must be established that the property in question is derived from criminal conduct. Member States may provide that it could, for example, be sufficient for the court to consider on the balance of probabilities, or to reasonably presume that it is substantially more probable, that the property in question has been obtained from criminal conduct than from other activities. In this context, the court has to consider the specific circumstances of the case, including the facts and available evidence based on which a decision on extended confiscation could be issued. The fact that the property of the person is disproportionate to his lawful income could be among those facts giving rise to a conclusion of the court that the property derives from criminal conduct. Member States could also determine a requirement for a certain period of time during which the property could be deemed to have originated from criminal conduct”.

The text doesn’t require a full proof, breaking also with the FD which required in the all options a fully convincing proof, because it constitutes a sort of “probatio diabolica” for the judge, preferring a persuasion based on a level of specific circumstances and a balance of probabilities (recital n.21).

Furthermore the new directive make reference to criminal conduct and to a list of criminal offence[xv], while the LIBE text A7-0178/2013 was referring to a more generic notion of “activities of a criminal nature”.

Another point is worth noting: as such general exceptions, the original proposal of the Commission provided that the extended confiscation shall not be applied when the similar criminal activities:

a) could not be subject of criminal proceedings due to prescription under national criminal law, or

b) have already been subject to criminal proceeding which resulted the final acquittal of the person or in case of “ne bis in idem” principle applies.

In the LIBE report the letter a), referred to the prescription,[xvi] has been removed, thus the only exceptions is acquittal and “ne bis in idem”.

An anomalous case is represented by Italy where the discipline of the so called “maximum ceiling” according to which the criminal offence extinguishes because of the prescription, regardless of whether or not the process is started[xvii]. Indeed, in this national system, it would be appropriate to deduct a reasonable time of duration of the criminal proceedings from the computation of the deadline for the prescription[xviii] to permit the confiscation also where the continuation of the process results in a conviction. Finally even even the ne bis idem exception has been removed from the final text as adopted.

5) The conditions to admit a confiscation from a third party;According to art. 6 of the Directive each MS shall adopt the necessary measure to ensure that both proceeds and instrumentalities can be confiscated if transferred directly or indirectly or acquired by third-parties.

The directive provides the confiscation of value, when other property has been transferred in order to avoid confiscation of property the value of which corresponds to the proceeds. The provision takes in account all the situations in which the proceeds or property were transferred for free or in exchange of a significant lower price compared to the market value.

It’s clear that who receives a property under this two condition have a reasonable suspicion concerning the illicit origin of the same property.

As final clause, the paragraph 2 states that the confiscation should not prejudice the rights of bona fide third parties. It is worth reminding that the Parliament had tempt – with the amendment 43 – to oblige Member States to take legislative, measures in order to prosecute persons who fictiously attribute ownership and availability of property to third parties; just with the aim, of avoiding seizure or confiscation measure. The amendment has been rejected.

6)…and the safeguards under the article 8
The article 8 of the directive defines the measures to ensure that the persons affected by the measures provided for under the Directive have the right to an effective remedy and a fair trial in order to uphold their rights notably when confiscation is not based on a conviction.

It lists several guarantees which shall to be ensured to the passive subject of freezing and confiscation measures, irrespective of the ownership at the time of confiscation. A fair and effective procedure of freezing and confiscation has to be balanced by the provision of specific procedural rights in accordance with the Charter of Fundamental Rights of the European Union and the European Convention for the Protection of Human Rights and Fundamental Freedoms. The safeguards have been gradually implemented from the original ones covered by the proposal and now the text lists the following:

1) the right to an effective remedy and a fair trial; indeed, before the negotiation it was precise that this right has to be assured even prior to the final decision, detail not mantained in the text adopted;

2) the right to a communication of the freezing order, indicating at least briefly, the reason or reasons: derogation is admissible only the postponing of communication has the aim to avoid jeopardising a criminal investigation; the right of a reasoned communication is guaranteed even in case of confiscation order;

3) the freezing decision remains in force only for as long as it is necessary to preserve property with a view of a subsequent confiscation, otherwise frozen property shall be returned immediately, according to the rules determined by national law;

4) the right to challenge the freezing and confiscation order before a court for the person whose property is affected;

5) the right of access to a lawyer (and to be informed about this right) throughout the confiscation proceedings relating to the determination of the proceeds and instrumentalities in order to uphold their rights.

6) under the case covered by extended power of confiscation, the affected person shall have an effective possibility to challenge the circumstances of the case, including specific facts and available evidence on the basis of which the property concerned is considered to be property that is derived from criminal conduct .

7) third parties shall be entitled to claim title of ownership or other property rights

8) if 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 prevent those victims from seeking compensation for their claims. This in accordance with the european victims ‘ right law.

All the safeguards provided are in accordance with the EU Council, Resolution on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, 30 November 2009, and the latest directive 2012/13 on the right to information in criminal proceedings and 2013/48 on the right of access to a lawyer .

Conclusions
Many EU MS are still lagging behind in implementing the EU legislation on confiscation[xix]. It has to be seen if the situation will be improved after the adoption of the new Directive and the ambiguous situation arising from the partial “survival” of the previous Framework Decision.

The situation remain uncertain with respect to the extended powers of confiscation and safeguards looks still incomplete.

That having been said it is worth to underline that according to art. 10 p. 3 “Member States shall consider taking measures allowing confiscated property to be used for public interest or social purposes.” This is a weaker version of the original Commission proposal according to which each Member States was “shall provide for the possibility of confiscated property being used for social purposes”.

Still on a positive side, the art. 11 and 13 of the new Directive contains an effective discipline on the monitoring of the volume and value of the freezing and confiscation orders requested and executed, with a view to transmitting data to the Commission. Needless to say the cooperationbetween Members States’ police, judicial and financial authorities will be essential.

NOTES

[i]The Action plan on the Stockholm Programme foresaw a report onImplementation reports on the Framework Decision 2006/783/JHA on mutual recognition of confiscation orders for 2013, not yet published. As overview of the past, in 2010 only 13 MS were implemented the FD and notified the Commission (at least informally), read more COM 2010(428) http://eur lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2010:0428:FIN:EN:PDF[ii] SEE: “…Noting that the current EU legal framework in relation to freezing, seizure and confiscation of assets only applies to criminal proceedings; that the issuance of confiscation orders generally requires a criminal conviction; that some Member States apply also non-conviction-based systems to deprive criminals of illicit profits, Noting the CARIN Steering Group’s contribution to the Stockholm Programme, which identified difficulties in the tracing of bank accounts and the mutual recognition of freezing and confiscation orders based on non-conviction-based procedures; noting that the CARIN Network proposed to promote the creation of centralised bank account registers and the mutual recognition of non- conviction-based orders as best practices; noting the fact that some Member States already benefit from centralised registers of this kind; (…)It also invites the Commission and the Member States to:Consider, based on further studies, ways to acknowledge non=conviction=based confiscation sys tems1 in those Member States which do not have such systems in place, and in particular to examine, within the framework of mutual recognition, ways to enforce non=conviction=based confiscation orders in those Member States,

Carry out a comprehensive study under what particular circumstances assistance can be provided to jurisdictions using non-conviction-based confiscation systems,

Consider collecting a comparable minimum set of appropriate statistical data on the activities of Asset Recovery Offices and, where possible, on judicial and asset disposal activities,

Consider the establishment of a basic statistical methodology concerning criminal assets, especially their freezing, seizure and confiscation, Look to increase the application of the current legislation and an where necessary consider possible legislative amendments in order to achieve more effective regimes for third=party confiscation and extended confiscation, including timely tracing and securing of the assets….”

[iii]European Commission, Communication to the European Parliament and the Council, “The EU Internal Security Strategy in Action: Five steps towards a more secure Europe”, COM(2010)673, Brussels, 22 november 2010, announcing the proposal legislation – in object in this article – to strengthen the EU legal framework on confiscation, as an effective tool to disrupt international crime networks.

[iv] On the notion of “minimum rules” see notably the interpretation of Klip about minimum standard as a maximum standard, in A. Klip and H. van der Wilt (eds.), Harmonisation and Harmonising Measures in Criminal Law (Royal Netherlands Academy of Arts and Sciences, Amsterdam 2012), p.1-21

[v] Reference to “mafia-like” organisations is rather frequent in strategic, institutional political, EU non-legislative documents.

[vi] A legal definition exist only in Italian Law (Decree Law N. 629/1982, turned into law, as amended, by Act N. 726/1982 concerning: “Urgent measures to  coordinate the fight against Mafias-related crime”).

[vii]See the explanatory memorandum of the proposal COM(2012) 85 final, 2.3 – legal basis p.9,http://www.europarl.europa.eu/registre/docs_autres_institutions/commission_europeenne/com/2012/0085/COM_COM(2012)0085_FR.pdf .

[viii]Art. 9 : The legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon shall be preserved until those acts are repealed, annulled or amended in implementation of the Treaties. The same shall apply to agreements concluded between Member States on the basis of the Treaty on European Union.

[ix]Article 3 – Scope This Directive shall apply to criminal offences covered by:(a)Convention drawn up on the basis of Article K.3 (2) (c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of the Member States of the European Union (‘Convention on the fight against corruption involving officials’);(b)Council Framework Decision 2000/383/JHA of 29 May 2000 on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro; (c)Council Framework Decision 2001/413/JHA of 28 May 2001 on combating fraud and counterfeiting on non-cash means of payment; (d)Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime; (e)Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism;(f)Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector;(g)Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking; (h)Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime; (i)Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA); (j)Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA; (k)Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/JHA(22), as well as other legal instruments if those instruments provide specifically that this Directive applies to the criminal offences harmonised therein.

[x]For a comparative view of confiscation in the common law jurisdiction and that one proposed by EU see more J.P.Rui, “Non conviction based confiscation in the European Union-an assessment of At. 5 of 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, 8 August 2012, Era Forum, Treves.

[xi] Just the amendment n.1 of the text tabled stated that “an effective fight against economic crime, organised crime and terrorism would 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”.

[xii]The article precised also that confiscation was considered as such a “criminal sanction” irrespective of its definition in the national law, but considering the EctHR case law (Engel Case), having regard to some requirements as such the legal classification of the offence under national law, the nature of the offence and degree of severity of the penalty.

[xiii]However this is not the case for the Italian legislation which consider confiscation as “a measure in rem” and not “ad personam” to avoid that organised crime properties unlawfully acquired could be treated as ordinary ones.   See the Italian Corte di Cassazione jurisprudence in case of confiscation of goods of illicit origin in a case of death of the accused person. As an example of how the jurisprudence has solved the doubts of interpretation of an unclear national legislation see the italian case, “Confisca e Sequestro” in D. Rinoldi, Argomenti di Diritto Penale europeo, Ed. Torre, Catania, 2011.

[xiv] Notably Germany explicitly opposed to the non-conviction based confiscation in case of death (moreover, Germany is the only EU MS who has signed but not ratified the UN Convention against corruption of 2003).

[xv]For the purpose of paragraph 1of this Article, the notion of ‘criminal offence’ shall include at least the following: (a)active and passive corruption in the private sector, as provided for in Article 2 of Framework Decision 2003/568/JHA, as well as active and passive corruption involving officials of institutions of the Union or of the Member States, as provided for in Articles 2 and 3 respectively of the Convention on the fight against corruption involving officials; (b)offences relating to participation in a criminal organisation, as provided for in Article 2 of Framework Decision 2008/841/JHA, at least in cases where the offence has led to economic benefit; (c)causing or recruiting a child to participate in pornographic performances, or profiting from or otherwise exploiting a child for such purposes if the child is over the age of sexual consent, as provided for in Article 4(2) of Directive 2011/93/EU; distribution, dissemination or transmission of child pornography, as provided for in Article 5(4) of that Directive; offering, supplying or making available child pornography, as provided for in Article 5(5) of that Directive; production of child pornography, as provided for in Article 5(6) of that Directive; (d)   illegal system interference and illegal data interference, as provided for in Articles 4 and 5 respectively of Directive 2013/40/EU, where a significant number of information systems have been affected through the use of a tool, as provided for in Article 7 of that Directive, designed or adapted primarily for that purpose; the intentional production, sale, procurement for use, import, distribution or otherwise making available of tools used for committing offences, at least for cases which are not minor, as provided for in Article 7 of that Directive; (e)a criminal offence that is punishable, in accordance with the relevant instrument in Article 3 or, in the event that the instrument in question does not contain a penalty threshold, in accordance with the relevant national law, by a custodial sentence of a maximum of at least four years.

[xvi] That amendment leads to reflect on the issue emerged about the different regimes of prescription in force in the Member States. In the majority of EU MS the prescription applies only in case of a complete inertia of the judge or in case of a particular unjustified delay.

[xvii] For a deepening on Italy case and a comparative study see more: Commissione Pisapia – per la riforma del codice penale (27 luglio 2006) – Relazione“.

[xviii] The Second Chamber of EctHR, in Alikaj and others v. Italy, Judgement no. 47357/08 of 29 march 2011 (murder case with crime extinguished by prescription) stated that the Italian system of the prescription is contrary to the duties and obligations of speed that burdens on public authorities and the limitation in this case was a measure unacceptable according to the jurisprudence of the Court, because it has had the effect of preventing the conviction in a criminal court but also in administrative and disciplinary proceedings.

[xix] For an overview of the national legislation most developed see: Directorate-General for Internal Policies, Policy Department Citizen’s Right and Constitutional Affairs, “The need for new EU legislation allowing the assets confiscated from criminal organisations to be used for civil society and in particular for social purpose, p. 32 and following” in http://www.europarl.europa.eu/document/activities/cont/201206/20120627ATT47783/20120627ATT47783EN.pdf and furthermore Transparency International, Enhancing Integrity and Effectiveness of Illegal Asset Confiscation – European Approaches” in http://www.confiscation.eu/research/test.

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