Fighting organised crime by facilitating the confiscation of illegal assets
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 26 April 2018 (17th Sitting) (see Doc. 14516, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Mart van de Ven). Text
adopted by the Assembly on 26 April 2018 (17th Sitting).
1. The Parliamentary Assembly notes
with deep concern that, according to World Bank and European Union
estimates, organised crime organisations make hundreds of billions
of euros in illegal profits every year. The illegal assets accumulated
by these criminals over time enable them to bribe and put pressure
on politicians, law-enforcement officials and witnesses, and to
manipulate entire markets by distorting and even eliminating competition.
Such power threatens the stability of even the most solid democracies
and the social contract between the citizens and the State on which
all free societies are based.
2. Confiscation of illegal assets has multiple benefits: it makes
crime less financially rewarding, saps the power criminals derive
from their wealth, deprives them of “seed money” needed for future
crimes and generates resources to compensate victims and rebuild
communities damaged by criminal activities.
3. The Assembly notes that the confiscation of illegal assets
is often impeded by an unreasonably heavy burden of proof placed
on the competent national authorities and by ineffective co-operation
between the authorities in different countries in tracking, freezing
and confiscating illegal assets across borders.
4. It further notes that Ireland, Italy, the Netherlands and
the United Kingdom have passed specific legislation to facilitate
the confiscation of illegal assets, in particular by reducing the
authorities’ burden of proof regarding the criminal origin of unexplained
wealth, through the use of factual presumptions or even, under certain
conditions, a de facto reversal
of the burden of proof.
5. Such measures (also referred to as non-conviction-based confiscation,
civil forfeiture, confiscation in rem or
unexplained wealth orders) have successfully withstood scrutiny
by the highest courts of the countries concerned and also by the
European Court of Human Rights. They were found to be compatible
with human rights, including the presumption of innocence and the
right to peaceful enjoyment of one’s possessions.
6. Provided sufficient safeguards exist, in particular full judicial
review of any confiscatory measures by independent and impartial
courts, the Assembly strongly supports non-conviction-based confiscation
or similar measures as the most realistic way for States to tackle
the enormous, and inexorably growing, financial power of organised
crime, in order to defend democracy and the rule of law.
7. Effective international co-operation in tracking, freezing
and confiscating criminal assets depends on an appropriate legal
framework that ensures sufficient harmonisation of procedures while
allowing for different national approaches, without discrimination.
8. Relevant international instruments include the 1959 European
Convention on Mutual Assistance in Criminal Matters (ETS No. 30)
and its two additional protocols (ETS Nos. 99 and 182), the 1990
Convention on Laundering, Search, Seizure and Confiscation of the
Proceeds from Crime (ETS No. 141), the 2005 Council of Europe Convention
on Laundering, Search, Seizure and Confiscation of the Proceeds
from Crime and on the Financing of Terrorism (CETS No. 198) and
several United Nations instruments (including the 1988 Convention
against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,
the 2000 Convention against Transnational Organised Crime and the
2003 Convention against Corruption). These treaties, however, have not
been ratified by all Council of Europe member States and other States
holding a special status with the Council of Europe or its Parliamentary
Assembly. This state of affairs creates loopholes, through which organised
crime organisations continue to escape confiscation of their illegal
assets.
9. The Assembly therefore invites all member States of the Council
of Europe and other States holding a special status with the Council
of Europe to:
9.1 provide for non-conviction-based
confiscation in their national laws, as well as the possibility
of equivalent value confiscation and taxation of illegal gains,
while establishing appropriate safeguards, and adopt successfully
tested good practices, including:
9.1.1 allowing for full
judicial review, by an independent and impartial tribunal, within
a reasonable time, of any decision to freeze or confiscate illegal
assets;
9.1.2 granting compensation to persons whose assets have been
frozen or confiscated erroneously;
9.1.3 providing for legal aid for judicial review and compensation
proceedings for persons who cannot afford a legal representative;
9.1.4 creating a specialised body to deal with the freezing
and confiscation of illegal assets, with a professional, multidisciplinary
staff that have access to relevant information held by law- enforcement
bodies (in particular the police and customs) and the tax and social
welfare authorities;
9.1.5 ensuring that the specialised body administers frozen
assets in such a way as to preserve their value until they are definitively
confiscated, and to dispose of confiscated assets in such a way
as to maximise the benefit for society as a whole and to avoid inappropriate incentives;
9.1.6 allowing this specialised body to use special investigative
tools, such as access to financial information held by other public
bodies, undercover operations and real-time monitoring of bank accounts;
9.1.7 regularly informing the general public of both operations
successfully carried out and problems encountered;
9.2 promote international co-operation in this field by taking
expeditious action and co‑operating with each other to the widest
extent possible for the purposes of investigations and proceedings
aiming at the confiscation of instrumentalities and proceeds of
crime, in particular by:
9.2.1 signing and ratifying all
international legal instruments facilitating the tracking, freezing and
confiscation of illegal assets (paragraph 8);
9.2.2 applying these instruments in a co-operative, non-bureaucratic
way, placing a special emphasis on spontaneous exchanges of information,
without insisting on reciprocity and without excluding or otherwise
placing at a disadvantage those States that have already introduced
non-conviction-based confiscation regimes;
9.2.3 promoting international networks of competent professionals,
such as the Camden Asset Recovery Inter-Agency Network (CARIN) and
the Asset Recovery Offices (ARO) platform or other relevant forums;
9.2.4 setting up and using more frequently joint investigation
teams, such as those set up with the assistance of Eurojust and
Europol, and by promoting more frequent involvement of non-member
States of the European Union in such teams;
9.2.5 making special investigative techniques available in cross-border
investigations;
9.2.6 defining clear rules for the sharing of successfully confiscated
assets among the countries involved.
