Project number 2019/33/B/HS5/01617 funded by the National Science Centre, Poland, carried out from 31 January 2020 to 30 January 2025
General information
Increasing the effectiveness of deprivation of the proceeds of crime. Ensuring an adequate level of protection of the rights of suspects, victims and third parties in confiscation or forfeiture proceedings. Creating systems for fair redistribution of recovered assets within the EU. All these are problems that cannot be solved without of high standards at the level of EU law. Suitably designed EU standards should support the principle of the unprofitability of crime.
The standards set in EU law for criminal confiscation of the proceeds of crime have so far never been comprehensively examined in terms of their gaps, risk areas of insufficient protection of the rights of individuals or achieving the goals of criminal proceedings, and unsuitable impact on internal legal systems. These issues have so far only been partly taken up in foreign literature concerning criminal confiscation. This project aims to complement the extant research in this area.
Project objectives
The project aims to determine and assess the standards for criminal confiscation of the proceeds of crime under EU law, with reference to the necessary extents to the law of the Council of Europe, the UN, the OECD and the FATF recommendations. The research involves comparing the criminal law of selected countries: Poland, Germany, France and the United Kingdom (limited to the law applicable to England and Wales) in terms of EU standards on the confiscation of the proceeds of crime (with differences between UK and EU relations). Analysis of EU standards in terms of gaps and risk areas associated with insufficient protection of the rights of individuals or achieving the goals of criminal proceedings should make it possible to formulate proposals for improving EU standards, with a fair balance between the interests of individuals and the interests of criminal justice where they may conflict.
Research scope
The analysis covers the EU legal norms on confiscation, and to the extent necessary, the norms of the Council of Europe, the UN, the OECD and the FATF recommendations (the soft law). The comparative method is used to analyse Polish, German, French and English criminal law in terms of the EU standards on the confiscation of the proceeds of crime. The analysis also covers the case law of the European Court of Human Rights on confiscation of the proceeds of crime affecting EU law, and the case law of the Court of Justice of the European Union. Furthermore, the study includes EU policy on shaping the standards for confiscation, with the auxiliary use of the theory of the rational creation of law proposed by Professor Jerzy Wróblewski.
Importance of the study for law making and law enforcement
The research results can serve as a reference point in setting the EU strategy for solving problems related to criminal confiscation, designing EU law on criminal confiscation, as well as for harmonising and assessing different national legal solutions in terms of the obligations arising from EU law regarding criminal confiscation.
The results of the research have so far been presented at international and national scientific conferences and seminars:
- A.H. Ochnio: The legal presumption of the illicit origin of property as a tool designed to fight organized crime. What are the pros and cons of the EU’s strategy?, at an international scientific conference The 24-hour Conference on Global Organized Crime, 10-11 November 2020, New York, Amsterdam, Sydney;
- moderating the conference panel: Money Laundering and Property;
- conference organisers: Centre for Information and Research on Organised Crime, Global Initiative against Transnational Organized Crime, European Consortium of Political Research, Standing Group on Organised Crime, International Association for the Study of Organized Crime;
- A.H. Ochnio, Redistribution of Assets Recovered from Organized Crime. An Example of Poland, at an international scientific conference The 24-hour Conference on Global Organized Crime, 1-2 December 2021, New York, Amsterdam, Sydney;
- moderating the conference panel: Governance and redistribution of assets;
- conference organisers: Centre for Information and Research on Organised Crime, Global Initiative against Transnational Organized Crime, European Consortium of Political Research, Standing Group on Organised Crime, International Association for the Study of Organized Crime;
- A.H. Ochnio, Nowy mechanizm wzajemnego uznawania nakazów zabezpieczenia i nakazów konfiskaty – wyzwania i szanse dla prawa polskiego [A new mechanism for mutual recognition of freezing orders and confiscation orders – challenges and opportunities for Polish law], at a national scientific conference Aktualne problemy prawa karnego Unii Europejskiej [Current issues of EU criminal law], 22 September 2021, Institute of Law Studies of the Polish Academy of Sciences (ILS PAS)
- moderating the conference panel: Pozbawianie sprawców korzyści z przestępstwa: perspektywy rozwoju prawa karnego UE [Depriving perpetrators of the benefits of crime: perspectives for the development of EU criminal law];
- conference organisers: Department of Criminal Law ILS PAS, Towarzystwo Naukowe Prawa Karnego [Scientific Society of Criminal Law];
- A.H. Ochnio, The rights of crime victims to recovered property in the Polish legal order – the present state and challenges for the future, at an international scientific conference Kleptocracy and Asset Recovery: The Role of Destination Countries, 19-20 January 2022, Civil Forum for Asset Recovery (CIFAR), International State Crime Initiative (ISCI), Ulster University, Queen Mary University of London.
- A.H. Ochnio, Does the EU policy on countering serious crime have unintended spill-over effects on the criminal policies of the Member States?, at an international scientific conference Changing Penologies and European Crime Policy: Theory and Practice in the Global Context, 20-21 October 2022, European Centre for Penological Studies named after Prof. G. Rejman, Institute of Social Prevention and Resocialization, University of Warsaw.
- A.H. Ochnio, Non-Conviction Based Confiscation, co-presentation at a seminar Non-Conviction Based Forfeiture, 28 April 2023, Department of Criminal Law, Faculty of Law and Administration, Adam Mickiewicz University, Poznań
Partial results of the research have also been presented in an article in a foreign scientific journal:
- A.H. Ochnio, The Tangled Path From Identifying Financial Assets to Cross-Border Confiscation. Deficiencies in EU Asset Recovery Policy, „European Journal of Crime, Criminal Law and Criminal Justice” (ECCL) 2021, Vol. 29, Issue 3-4, pp. 218-240, Brill, Nijhoff, CC-BY, https://doi.org/10.1163/15718174-bja10024
- the journal is indexed in databases, among others: SCOPUS, ERIH Plus, Legal Journals Index, Emerging Sources Citation Index (Web of Science), ProQuest Central, ProQuest Criminal Justice, Public Affairs Index, SocINDEX.
- A.H. Ochnio, Addressing barriers to victims’ rights to recovered assets in the mechanism for mutual recognition of freezing and confiscation orders, in: Ariadna H. Ochnio, Hanna Kuczyńska (eds), Current Issues of EU Criminal Law, Publishing House of the Institute of Law Studies, Polish Academy of Sciences, Warsaw 2022, CC-BY, https://doi.org/10.5281/zenodo.6860700, https://e-bp.inp.pan.pl/items/98a8b8cb-1994-4d7f-8b16-023298675452
- A.H. Ochnio, Rethinking EU Law-making Policy on Confiscation of the Proceeds of Crime, Abingdon, Oxon and New York: Routledge 2025, ISBN 9781032737669, CC-BY-NC-ND, https://doi.org/10.4324/9781003465829 .
In addition, the results of the research were also disseminated in a presentation given at the Faculty of Law, University of Cambridge and at the XXVI Science Festival in Warsaw:
- A.H. Ochnio, Basic problems when examining the standards of criminal confiscation laid down in EU law, 17 May 2022, Faculty of Law, CCCJ, University of Cambridge
- A.H. Ochnio, Kilka słów o nieopłacalności popełniania przestępstw: nowoczesne rozwiązania prawne [A few words about the unprofitability of committing offences: modern legal solutions], XXVI Science Festival in Warsaw, 30 September 2022, Zespół Szkół nr 128, CLXII LO im. Szarych Szeregów.
In 2022, as part of the project, research was carried out in the following foreign scientific institutions: University of Cambridge, Faculty of Law, CCCJ; Institute of Advanced Legal Studies, University of London; Max Planck Institute for Comparative Public Law and International Law, Heidelberg