Standards for the confiscation of proceeds of crime set in European Union law and their impact on Polish, German, French and English criminal law

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Project number 2019/33/B/HS5/01617 funded by NCN, carried out from 31 January 2020 to 30 January 2023.


General information

Increasing the effectiveness of the confiscation of the proceeds of crime, ensuring an adequate level of protection of the rights of suspects, victims and third parties in proceedings involving criminal confiscation or forfeiture and establishing fair systems for the redistribution of recovered assets across the EU are challenges that cannot be met without high legal standards under EU law. Properly crafted standards should support the principle that crime is not profitable.

The standards set by EU law for the criminal confiscation of the proceeds of crime have not yet been subject to comprehensive scrutiny as regards their loopholes, risk areas of insufficient protection of individual rights, the objectives of criminal proceedings, or undue influence on domestic legal systems. These issues have so far only been partially addressed in international literature on criminal confiscation. This project aims to fill in the research gaps in this area.


Project objectives

The project intends to map and evaluate the standards of criminal law confiscation of criminal proceeds arising from EU law, with the necessary reference to the law of the Council of Europe, UN, OECD and the recommendations of the FATF. The study will compare the criminal law of selected countries: Poland, Germany, France and the UK (limited to the law applicable in England and Wales) in relation to the EU standards of confiscation of criminal proceeds (taking into account the UK’s separate relationship with the EU). The analysis of the EU standards in terms of their gaps and risks of not adequately protecting individual rights or meeting the objectives of the criminal justice process should provide suggestions for improving them in a way that balances individual interests and criminal justice interests that may be clashing.


Research

The findings of the study may serve as a reference for defining EU strategies to address the problems of criminal confiscation, for designing EU law on criminal confiscation, as well as for interpreting, assessing and standardising national legal solutions to the standards set by EU law on criminal confiscation.


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:

  1. 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;
  2. 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;
  3. 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];
  4. 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.

Partial results of the research have also been presented in an article in a foreign scientific journal:

  1. 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, (open access article)
    • 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.