BACKGROUND AND JUSTIFICATION
The majority of criminal offences is aimed at acquiring economic benefits. The importance of targeting proceeds from crime in efforts against corruption, organised crime, money laundering and other forms of economic crime is therefore widely recognised:
Targeting profits serves as a powerful deterrent as economic profit is the rational of most criminal offences
Leaving criminals with their profits will allow them to infiltrate and corrupt the legal economy
Taking away of the profits removes the instrument to commit future crimes
Targeting money helps target the top management of criminal organisations
Need to hold up the rule of law and the moral principle that nobody should benefit from crime.
This is reflected in international instruments such as the “Vienna Convention”1, the “Strasbourg Convention”2, the Criminal Law Convention on Corruption3 as well as in the Forty Recommendations of the Financial Action Task Force (FATF). It is also a priority area identified in the above mentioned London Statement. Furthermore, the EU acquis and standards in this field also include important benchmarks.
Countries of South-eastern Europe have made considerable progress in acceding to relevant instruments, and in principle their legislation provides for the confiscation of the instruments and proceeds of crime.
All countries have relevant provisions in their criminal codes and in some these are complemented by provisions in the administrative and civil law or special laws on drug trafficking or money laundering. In most countries confiscation is a mandatory measure.
According to information available, in all countries in principle:
confiscation measures can be applied to all crimes, or at least to all serious crimes
the property which is the proceeds from crime is to be confiscated, and if this property is no longer available, the corresponding value can be confiscated
· a conviction is required prior to final confiscation. The proceeds to be confiscated must be linked to the crime for which there is a conviction
· property held by third persons can also be confiscated
· provisional measures are foreseen to seize assets which may become subject to confiscation at a later stage
· international cooperation is possible in terms of providing investigative assistance and executing requests for seizure and - under certain conditions - for confiscation.
However, this legislation is not applied effectively in practice. Although statistical data on seizures and confiscation is not available, it would appear that there are:
· very few cases of seizures in some and none in other countries
· no or very few final confiscations in any of the countries
· no or very limited experience with international cooperation.
Reasons include shortcomings in the legislation (unclear terminology, discretionary elements in the systems, conditions for provisional measures etc.) and limited institutional capacities (limited knowledge of the issues involved, lack of training opportunities and thus a lack of specialists trained in financial investigations, few specialised units, problems of interagency cooperation etc.).
However, the main reason seems to be that there is a limited understanding of the importance of the issue and the opportunities offered by already existing legislation among key decision makers. Financial investigations are not considered a priority. In consequence,
· strategic and systematic approaches to integrate financial investigations for the confiscation of proceeds into criminal investigations have not been developed
· resources to enhance the specialisation of law enforcement officers and the judiciary have not been made available
· investigators and prosecutors are reluctant to take the risk of complex and long-term financial investigations or provisional measures to seize property.
Therefore,
· Decision makers and senior managers need to be convinced of the importance of the issue of financial investigations and confiscation
· Task forces or project groups would need to be established in each country to develop a “project financial investigations for confiscation” to promote the approach, define the roles of different institutions and ensure their cooperation
· The project group should review the opportunities and gaps within the existing legislation and work on their improvement
· Training programmes to enhance the specialisation of law enforcement officers, prosecutors and judges would need to be designed and implemented.
Furthermore, considering the important role of financial intelligence units and in view of the joint conclusions of the Justice and Home Affairs Ministerial Meeting (Brussels 28 November 2003), cooperation among the FIUs from the region would need to be strengthened.
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