Evidence in a non-conviction-based confiscation procedure

ENConfiscation, as a legal tool that allows the State to acquire assets that are linked to the perpetration of a crime, can be considered as a polymorphous legal concept depending on its object and function (Milone 2017, p. 151). Legal measures to seize illegal property may depend, inter alia, on the origins of the property. In this respect, the State may provide for such measures of controlling unlawful property as: those targeting property derived from criminal offenses – e. g., the criminalization of money laundering and the confiscation and extended confiscation of property; the civil confiscation of property, which is directed at property with an origin which is, in principle, unclear; the seizure of homeless property; and tax measures directed at property of unknown origin. These can be assets of “neutral” origin or, in fact, assets of criminal origin (Bikelis and Mikšys 2018, p. 17). Thus, there are various legal measures by which the proceeds of criminal offenses, property of an unlawful origin or even property of a neutral origin may be seized and confiscated. These measures are usually broken down into: those of a criminal nature (such as criminal liability for money laundering and criminal liability for illicit enrichment); those of a mixed nature (ordinary, extended, and civil confiscation); the civil institute of the seizure of homeless property; and tax measures – tax rates, default money, and tax penalties imposed on income the sources of which the taxpayer cannot justify (Bikelis and Mikšys 2018, p. 17). With regard to the confiscation of property only in the context of criminal proceedings, a distinction is made between the generations of confiscation regimes covering 1) regular; 2) extended criminal confiscation; 3) non-conviction-based confiscation; and 4) the unexplained wealth mechanism (Boucht 2019, pp. 529–534).The system of national legal instruments of controlling unlawful property is not well established, and their regulatory principles differ: the “plurality of models of confiscation, very different in terms of qualification, discipline, function, object and degree of cogency, has been further accentuated almost everywhere” (Bernardi 2019, p. IX). Partly as a result of the recent increase in EU regulation on asset confiscation, States are also reviewing or adjusting asset confiscation mechanisms in addition to traditional asset confiscation (i. e., conviction-based confiscation) and other options for confiscation (non-conviction-based confiscation, hereinafter NCB confiscation, and NCB forfeiture). Directive 2014/42/EU of the European Parliament and of the Council of April 3, 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union (hereinafter Directive 2014/42/EU) and Regulation (EU) 2018/1805 of the European Parliament and of the Council of November 14, 2018 on the mutual recognition of freezing orders and confiscation orders (hereinafter the Regulation) established legal bases for the freezing and confiscation of criminal assets in European Union (EU) law. Accordingly, the Court of Justice of the European Union (CJEU) has started to formulate case law on the extended confiscation of assets (CJEU C-845/19 and C-863/19).In 2018, 26 Member States of the EU had an extended asset confiscation model that allows for the confiscation, in the context of criminal proceedings, of assets not related to the criminal offense of which the person is accused (Analysis of non-conviction-based confiscation measures in the European Union, 2019). Despite this, Member States’ asset recovery systems are not well equipped to effectively address the complex modus operandi of criminal organizations. In May 2022, the European Commission presented a proposal for a new Confiscation Directive within the EU Strategy to tackle organized Crime 2021–2025, covering additional criminal offenses and including “a new generation of confiscation regimes”: the confiscation of unexplained wealth linked to criminal activities (Proposal for a Directive of the European Parliament and of the Council on asset recovery and confiscation, 2022). According to studies, beyond the borders of the EU, several pieces of legislation provide for NCB confiscation around the world: in the United States, the UK, South Africa, Albania, Colombia, Liechtenstein, Switzerland, Thailand, etc. (Greenberg et al. 2009, p. 17; Bullock 2014; Cassella 2019). Numerous international acts and conventions call for States to include alternative forms of confiscation, including NCB measures, in their legislation (Alagna 2015, p. 451). It is generally accepted that NCB asset recovery has become a crucial tool in the fight against organized crime over the years, especially against mafia-type issues. [p. 203-204].