Directive 2014/42/EU and Non-Conviction Based Confiscation: A Step Forward on Asset Recovery?

Abstract

Depriving criminals of the control over the proceeds of crime has for several reasons become a priority on the national and international agenda. In the last decade, the European Union has adopted several legal instruments on asset recovery. However, due to their scarce success, the EU policy makers recently endeavoured to improve the legal framework: their efforts led to the recent Directive 2014/42/EU on the freezing and confiscation of proceeds of crime in the EU of 3 April 2014.

One aspect is central in the debate on asset recovery: the possibility to introduce common rules on ‘non-conviction based confiscation’, i.e. confiscation orders independent from a prior conviction. This was much discussed during the legislative process for the adoption of the Directive, from which it eventually emerged containing a provision with a limited scope.

This article elucidates the approach of the EU to fostering non-conviction based confiscation in the Member States, aiming to assess the potential impact of the non-conviction based confiscation provision in the Directive on the asset recovery process, and its compliance with fundamental rights.