Enhancing Integrity and Effectiveness of Illegal Asset Confiscation - European Approaches
Three national chapters of TI, being also EU MSs (TI–Bulgaria, TI–Italy and TI-Romania) are conducting a 24-month research and independent civil monitoring over the legal, institutional, and operational modes of the asset recovery offices (AROs) and policies to outline their main strong/weak aspects in terms of competencies, capacity, performance and integrity. The aim of the project is to support the effectiveness, accountability and transparency of asset confiscation policies and practices in Europe, allowing for improved cooperation between authorities in MSs.
The legal research shall provide for objective understanding of main strong and weak areas in asset confiscation legal, institutional and policy practices in BG, RO and IT, and will become the basis for the independent civil monitoring and the exchange of know-how and good practice. The addressed shortcomings and recommendations will trigger improvement of the institutional and procedural capacities of AROs on local and EU level, esp. regarding transparency, accountability, integrity, modes of operation, human resource management, coherence with other relevant authorities, access to databases, use of expertise in asset assessments, cost effectiveness. The project findings (lessons learnt) will also be disseminated via the TI network on regional and EU level. Ultimately, this means strengthened capacities of AROs and better possibilities for cooperation between MSs and civil society representatives at regional and EU-level.
BULGARIA: The legal research FORFEITURE OF ILLEGAL ASSETS: CHALLENGES AND PERSPECTIVES OF THE BULGARIAN APPROACH is focused on the model of the non-conviction based confiscation introduced in Bulgaria in 2012 with the Forfeiture in Favour of the State of Illegally Acquired Assets Act.
The Law provides for a special Commission on Illegal Asset Forfeiture whose role is to perform examination of the assets, institute proceedings for imposition of precautionary measures, and submit a motion for an injunction securing a future action for forfeiture of unlawfully acquired assets to the district civil court.
The Legal research looks at the procedures for the set-up of the newly established Commission, the rules for transparency and integrity of its members and personnel as well as the object, subject and the stags of illegal assets forfeiture.
The inventory of crimes provided for in the Law includes crimes that typically generate assets such as organized crime, drug-related crimes, money laundering, trafficking or corruption etc. as well as other crimes that allow toexpand the scope of forfeiture to illegally acquired assets of a broader range of persons. The Law provides for two alternative grounds for the launch the examination: commission of a crime or of an administrative violation. It is important to note that the forfeiture of illegal assets is a complex procedure which involves: examination of the assets, made by the Commission for Illegal Asset Forfeiture, the freeze and forfeiture of assets – made by the civil court and the management of frozen/forfeited assets – made respectively by the Commission of Illegal Assets Forfeiture/ and a Special Council for Management of Forfeited Assets.
The actual forfeiture of illegally acquired assets does not achieve in full the objective of the law to protect the public interest and restore rule of law and justice. Forfeited assets need to be well managed and their economic functions well preserved so that they can be used effectively to public ends as well as for compensation for damage caused by the crime that generated the illegal assets. In this regard the main question once the assets have been forfeited concerns their administration and management. The management of assets is evaluated as the weakest and least developed part of the procedures in Bulgaria.
ITALY: The Legal Research of the Italian system “Illicit Assets Recovery in Italy” descripts their model of confiscation of assets: a more peculiar system for the confiscation of assets; it is impossible to identify it under the traditional bi-partition among conviction based (criminal) confiscation and non-conviction based confiscation. On one side there is a general regime which lies under the criminal conviction based model; on the other side a special discipline for criminal organisations is also provided and it works through a precautionary proceeding which is separate from the criminal one and it operates regardless of the criminal conviction of the person whose assets are seized/confiscated by the State.
The two-tiered regime splits confiscation procedures on two levels: Criminal proceedings. Seizure and confiscation proceedings are operated under the general criminal court proceedings. Confiscation can be finalised only after the decision of the third degree judge in Corte di Cassazione (Italian Supreme Court). Also in cases regarding individuals who belong to criminal organisations, final confiscation follows a conviction decision issued by a criminal court.
Precautionary (prevention) proceedings: it is possible to proceed confiscation of assets for some categories of persons, notwithstanding a pending criminal proceeding or a conviction by the court. The precautionary proceeding has a more flexible structure and it is carried out in criminal courts but under different rules. The categories of individuals against whom a confiscation can operate independently from a criminal liability are listed in Legislative Decree September 6th, 2011 n.159, the so-called Anti-Mafia Code.
ROMANIA: The legal research for Romania “Extended Confiscation Procedure in Romania” presents an analysis of current confiscation procedures (extended confiscation) in Romania, being based on the applicable legislation, questionnaires regarding institutional practice and statistics answered by representatives of institutions with competence in the field, magistrates, civil society organizations, representatives of the media and businessmen.
Some of the important conclusions in Romania refer to the lack of transparency in the management and recovery of confiscated property and the lack of efficient cooperation between confiscation authorities. In addition the statistics held by the relevant institutions do not allow to make a realistic and fair evaluation of the situation regarding concluded confiscation procedures.
In light of the above, the recommendations made in the report target the development and implementation of effective instruments and mechanisms at the level of the institutions with responsibilities in the field of confiscation, the transparent and timely publication of statistics on confiscation by relevant institutions and regular consultations with relevant stakeholders on general and specific issues related to confiscation.