Barbara VettoriAssistant professor in criminology at the Catholic University of Milan

Expert for the University of Palermo on Project RECAST

Dirty Assets Workshop, The University of Manchester

3 October 2014

The disposal of confiscated

assets in the EU Member

States: law in the books, law

in action

WUniversità Cattolica del Sacro Cuore, Milano

1. RECAST in brief

2. EU developments on asset disposal

3. Comparing laws and practices

4. Focusing on social reuse

OUTLINE

- RECAST = REuse of Confiscated Assets for social purposes: towards common EU Standards

- Funded by the European Commission (2010 ISEC Programme)

- Duration 36 months (from 11/2011)

- Coverage: 27 MSs

1. RECAST IN BRIEF

Coordinator:

Partners:

1. RECAST IN BRIEF (THE CONSORTIUM)

Università di PALERMO – Dipartimento di Studi Europei e dell'integrazione internazionale

Centre for the Study of Democracy (BG)

FLARE Network

Agenzia nazionale per l’amministrazione e la destinazione dei beni sequestrati e confiscati alla criminalità organizzata

UN Interregional Crime and Justice Research Institute

To contribute to the development of common European standards on the re-use of confiscated assets for social purposes.

Obj. 1 To carry out a comparative analysis of national legislation on the disposal of confiscated assets in the EU

Obj. 2 To carry out a comparative analysis of national practices on the disposal of confiscated assets in the EU

Obj. 3 To carry out an in-depth analysis of current experiences on the re-use of confiscated assets for social purposes in the EU and of their potential for adoption by other MSs

Obj. 4 To provide inputs to possible common European standards on the re-use of confiscated assets for social purposes

1. RECAST IN BRIEF (AIM AND OBJECTIVES)

- disposal of confiscated assets has been so far a neglected topic at the European level, despite its importance for the effectiveness of the overall confiscation system

- lack of EU binding provisions on the disposal of assets

- increasing attention towards the topic at the EU level over the past five years

2. EU DEVELOPMENTS ON ASSET DISPOSAL

o Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of proceeds of crime in the European Union

o Commission Communication on the proceeds of organised crime (2008)

o Stockholm Programme (2009)

o Justice and Home Affairs Council Conclusions on confiscation and asset recovery (2010)

o 2010 Commission Communication on a EU Internal Security Strategy (COM(2010) 673 final)

o European Parliament Report on organised crime in the European Union (2010/2309(INI))

2. EU DEVELOPMENTS ON ASSET DISPOSAL (2)

- in most MSs there are legal provisions on the management of seized assets (even though implementation problems)

- sale is the main disposal option

- …still, some MS have forms of social reuse of the assets

- in terms of institutional building arrangements, there is not a specialised approach to the disposal of confiscated assets: confiscation is executed as any other penalty

- in most MSs there are not legal provisions disciplining the timing of the disposal phase

3. COMPARING LAWS AND PRACTICES: KEY FINDINGS

REGARDING THE MANAGEMENT OF SEIZED ASSETS:

- existing provisions are limited to certain asset typologies/have a limited scope of application

- administrators are not always competent/too expensive

- courts sometimes promote passive administration

- assets are in bad conditions

- registration of seized assets not always up to date/complete

- scant awareness of prosecutors and judges about the importance of the issue

- insufficient means to properly take care of the assets

- interim measures adopted with delay

3. COMPARING LAWS AND PRACTICES: CHALLENGES (1)

REGARDING REUSE IN GENERAL:

- poor/unclear/outdated legal framework

- confiscation orders do not always include complete info on the assets

- not enough property has been seized to cover the confiscation order (hard to find further assets later)

- unsolved third party claims

- lack of ad hoc sale procedure for confiscated assets

- transcription issues (for real estate)

3. COMPARING LAWS AND PRACTICES: CHALLENGES (2)

- real estate with occupants, mortgages, permit / environmental problems

- property under joint ownership

- parallel (and often uncoordinated) proceedings

- minimal/absent revenue from the disposal of certain assets (especially when under mortgage)

- problems in terms of interagency cooperation

- difficulty to find buyers

3. COMPARING LAWS AND PRACTICES: CHALLENGES (3)

3. SOME EXAMPLES

Before confiscation

…and after

3. SOME EXAMPLES

Before confiscation

…and after

3. SOME EXAMPLES

A coffin to discourage execution of the final confiscation order…

REGARDING SOCIAL REUSE IN PARTICULAR:

- poor quality of information regarding assets available for social reuse

- problems in determining the beneficiaries of the assets, due to the lack of a database

- uncertainties at the Court level on how to ascribe crime proceeds to dedicated funds

- lack of legal provisions requiring a disposal monitoring

3. COMPARING LAWS AND PRACTICES: CHALLENGES (4)

TIMING:

- in most MSs there are not legal provisions disciplining the timing of the phase; even when there are some, excessive length

RESOURCES & TRAINING:

- in 1/3 of the MSs no dedicated/insufficient resources

- in most countries, lack of ad hoc training on disposal

DATA COLLECTION & MANAGEMENT:

- in most countries data collection regarding disposal is on paper and not much statistical information is available

3. COMPARING LAWS AND PRACTICES: CHALLENGES (5)

- best practice on the management of seized assets (FR: “seizure without dispossession”)

- best practice regarding properties with mortgages (EL; SE)

- best practice in terms of institutional building arrangements (IT, FR, CY)

- best practice in terms of interagency cooperation (SE: National Function for Proceeds of Crime)

- best practice in terms of sale of confiscated assets at auction (BE: Finshop Brussels)

3. COMPARING LAWS AND PRACTICES: BEST PRACTICES (1)

- best practice in terms of centralised management & sale of confiscated real estate (BE: FINDOMMO)

- best practice to coordinate criminal and non criminal proceedings involving third parties (UK)

- best practice to involve citizens in the social fight against organised crime (social reuse)

- best practice to promote the identification of asset beneficiaries (for social reuse) (EE: list of confiscated counterfeited goods easily accessible on the Internet)

- best practice in terms of disposal monitoring to avoid that criminals buy their assets back (IT)

3. COMPARING LAWS AND PRACTICES: BEST PRACTICES (2)

- some MS have introduced forms of reuse involving public institutions (via specialised funds for crime prevention projects; indirect social reuse) or society/NGOs (direct social reuse)

- different forms of social reuse:

for some/all asset typologies

national vs. local scope for application

drug trafficking offences vs. all (serious) crimes

- key experiences are in Belgium, France, Hungary, Italy, Luxembourg, Scotland and Spain

4. FOCUSING ON SOCIAL REUSE

- Belgium: social reuse for real estate is envisaged in the Dutch/Flemish Region only

- France: MILDT, Mission interministérielle de lutte contre la drogue et la toxicomanie

- Italy: social reuse of companies and of real and mobile (registered) assets confiscated from mafia

- Luxembourg: Fonds de lutte contre certaines formes de criminalité

- Scotland: 'CashBack for Communities’ programme- Spain: Fondo de bienes decomisados por tráfico de

drogas y otros delitos relacionados

4. FOCUSING ON SOCIAL REUSE

Barbara VettoriAssistant professor in criminology at the Catholic University of Milan

Expert for the University of Palermo on Project RECAST

Dirty Assets Workshop, The University of Manchester

3 October 2014

The disposal of confiscated

assets in the EU Member

States: law in the books, law

in action

WUniversità Cattolica del Sacro Cuore, Milano