La proposta di direttiva UE in materia di congelamento e confisca dei proventi del reato: prime riflessioni.

In 2012 the European Parliament and the Council have presented a proposal of directive on freezing and confiscation of proceeds of crime in the European Union. The Commission implementation report showed that the provisions on extended confiscation of the Framework Decision 2005/212/JHA could be unclear and led to piecemeal transposition and the alternative options have restricted the scope for mutual recognition of confiscation orders, because the authorities in one Member State will execute confiscation orders issued by another Member State only if these are based on the same alternative options applied in that Member State. Art. 4 of the proposal introduces extended confiscation for the crimes listed in Article 83(1) TFEU as set out in existing Union legislation. The draft provides only a type of extended confiscation of property belonging to a person convicted of a criminal offence covered by this Directive “where, based on specific facts, a court finds it substantially more probable that the property in question has been derived by the convicted person from similar criminal activities than from other activities”. Art. 5 of the proposal of directive introduces a non-conviction based confiscation in limited circumstances, with a view to addressing cases where criminal prosecution cannot be exercised because the suspect has died, is permanently ill or when his flight or illness prevents effective prosecution within a reasonable time and poses the risk that it could be barred by statutory limitations. It isn’t clear if it is possible to apply without conviction only the confiscation of the property provided by art. 2 of the proposal or also the extended confiscation by art. 4, like it has been already established in several legal systems ( ). This provision concerns confiscation in relation to a criminal offence, but it allows Member States to choose whether confiscation should be imposed by criminal and/or civil/administrative courts.Third party confiscation is allowed only under specific conditions, i.e. where the acquiring third party paid an amount lower than market value and should have suspected that the assets are proceeds of crime, and after an assesment showing that confiscation of assets directly from the person who transferred them is unlikely to succeed.