Mutual Recognition and Confiscation of Assets: An EU Perspective

In the last few years, the confiscation of assets derived from criminal activities has come to represent an essential tool of the European strategy in the fight against organised crime and profit-generating crime in general; in particular, the European legislator is trying to improve the judicial cooperation in this sector through the mutual recognition of the confiscationThe Conclusions of the 1999 Tampere European Council have established that the principle of mutual recognition should become one of the cornerstones of the space of freedom, security and justice: “Criminals must find no ways of exploiting differences in the judicial systems of Member States” and “no hiding place for … the proceeds of crime within the Union”.This principle has to be the cornerstone of judicial co-operation in both civil and criminal matters within the Union: it should apply both to judgements and to other decisions of judicial authorities. “The principle of mutual recognition should also apply to pre-trial orders, in particular to those which would enable competent authorities … to seize assets which are easily movable” (36 §). To improve the mutual recognition of confiscation orders the Council has adopted Framework Decision 2006/783/JHA of 6 October 2006, in particular to implement extended confiscations under Article 3 of the Framework Decision 2005/212/JHA, replaced by the Directive n. 42/2014. The mutual recognition has to be built on the harmonisation of the confiscation and, first of all, on the mutual trust, which demands the respect of the safeguards of the rule of law . This article is focused on analysing these two connected aspects, in particular in relation to the two types of confiscation which are considered more efficient in order to facilitate the demonstration of the illegal origin of the assets to forfeit: the extended confiscation and the non-conviction based confiscation.