Chasing Criminal Money: Challenges and Perspectives On Asset Recovery in the EU (Hart Studies in European Criminal Law)

The fight against dirty money is not a new topic, nor a recent problem. It has existed within international and national agendas since the 1980s. Nonetheless, the evolving complexity of criminal skills and networks; the increasingly global dimension of crime; the financial crisis; and the alleged unsatisfactory results of the efforts hitherto undertaken cause us to re-pose and re-discuss some questions. This book addresses several issues concerning the reasons, objectives and scope of national and supranational strategies targeting criminal money, as well as the concrete modalities to overcome its obstacles. The main objective is to explore where the EU stands and where it ought to go, providing useful input for policy-makers and further research. Nevertheless, the problems are not limited to the EU area, and assets—particularly money—cross EU borders much more easily than people do. The reflections developed in the chapters, therefore, aim at going beyond these EU borders. The book is divided into two parts. The first one focuses on the core of asset recovery policies, namely confiscation or forfeiture laws, and explores in particular some issues concerning the respect of fundamental rights. The second part addresses other problematic aspects related to the asset recovery process, such as the return of assets to victim countries, the cross-border investigations on dirty money, and the social use of confiscated assets. Volume 3 in the series Hart Studies in European Criminal Law Foreword Contents List of Contributors Asset Recovery in the EU: Towards a Comprehensive Enforcement Model beyond Confiscation? An Introduction Background I. The EU Concept of Asset Recovery: A Terminological Clarification II. The EU Legal Framework on Asset Recovery, between Co-operation and Harmonisation III. Objective and Structure of the Book Part I: Forfeiture and Fundamental Rights: Open Questions in the Twenty-First Century 1 Confiscation and the Concept of Punishment: Can There be a Confiscation without a Conviction? Introduction I. A Look Backwards II. Different Forms of Confiscation III. Confiscation: Is a Unitary Vision Possible? IV. Is Confiscation a Penalty? V. Identifying Criminal Punishment VI. Confiscation and its Objects VII. Confiscation without Conviction VIII. The Legitimate Scope of Confiscation of Conviction IX. Countering Objections X. A Minor Evil? XI. Limits Conclusions 2 The History of Confiscation Laws: From the Book of Exodus to the War on White-Collar Crime Introduction I. Ancient Confiscation Laws: From Confiscation of Estate to Confiscation of the Instrumentalities of Crime II. Modern Confiscation Laws: The Birth and Exponential Development of Confiscation of the Proceeds of Crime Conclusion 3 Civil Forfeiture in Ireland: Two Decades of the Proceeds of Crime Act and the Criminal Assets Bureau Introduction I. Background II. Legislative Framework III. A Critique of the Irish Model Conclusion Postscript 4 The Problematic Nature of Asset Recovery Measures: Recent Developments of the Italian Preventive Confiscation Introduction I. "Preventive Confiscation" in Italy II. The Recent Decisions of the Italian Supreme Court III. A Firm Answer to the Nature of Preventive Confiscation? The Shortcomings of the Recent Italian Case Law IV. Does the "Compensatory" Purpose Fall within the Scope of Criminal Sanctions? V. Assuming that Preventive Confiscation is not Punitive, What Other Principles Should be Respected? Conclusion 5 Extended Confiscation: Criminal Assets or Criminal Owners? Introduction I. What is Extended Confiscation? II. Potentially Problematic Aspects of Extended Confiscation Conclusion 6 Modern Forms of Confiscation and Protection of Third Parties Introduction I. Two Ways to Recover Assets from Third Parties II. Confiscation from a Third Party in the Directive III. Rights of Third Party in Confiscation Process Conclusion Part II: INot Only About Confiscation: Towards Comprehensive Policies on Asset Recovery 7 Tax, Money Laundering and Offshore: The HSBC Suisse Affair Introduction. The Leaks I. Addressing Evasion II. The Line Between Avoidance and Evasion III. New Crimes of Offshore Evasion IV. The Expansion of Laundering V. Tax Evasion Offences and AML VI. Changing the Position of Institutions and Advisers VII. How Does the Extension of Tax Evasion Law Affect Money Laundering Law? VIII. Why Are We Doing AML? Conclusion-Responses 8 Asset Recovery in Four Dimensions: Returning Wealth to Victim Countries as a Challenge for Global Governance Introduction I. The International Legal Framework for Asset Recovery II. Asset Recovery: The Anecdotal Report Card III. The First Dimension: Barriers to Recovery IV. The Second Dimension: Human Rights V. The Third Dimension: Effectiveness VI. The Fourth Dimension: (IR)rationality Conclusions 9 Restitution of Dirty Assets: A Swiss Template for the International Community Introduction I. Options II. Asset Disposal Conclusion: Shortcomings and Innovation Potential 10 The Relevance of Asset Recovery Policies in Transitional Societies: The Croatian Perspective Introduction I. Facing the Problem of Transitional Economic Crimes in Croatia II. How to Confiscate Despite the Statute of Limitations? Conclusions 11 The American Perspective on Recovering Criminal Proceeds in Criminal and Non-Conviction Based Proceedings Introduction I. Training and Resources II. Traceable Assets versus Substitute Assets III. Non-conviction Based Forfeiture IV. Fugitive Disentitlement Doctrine V. Section 981(k) VI. Enforcement of Foreign Judgments Conclusion 12 The "Pre-investigative" Role of Financial Intelligence Units in Recovering Assets Introduction I. What is a Financial Intelligence Unit? II. What are the FIU"s Sources of Information? III. What is an FIU Investigation (Analysis)? IV. FIUs and Asset Recovery Conclusion 13 Digital Currencies and the Anti-money Laundering/Counter-terrorism Financing Regulations in the EU: Imaginary Risk or Real Challenge? Introduction I. Why Bitcoin Matters for the AML/CTF Regulations II. Current EU Policy towards Application of the AML Rules to Bitcoin-Related Businesses III. Future Regulatory Developments in the EU Conclusions 14 Asset Sharing as a Tool for a More Efficient Cross-Border Asset Recovery in the EU? The EU Asset Sharing Model and its Implementation in Belgium and the Netherlands Introduction I. Concept and Legal Basis of International Asset Sharing II. Aims and Ambiguities III. The EU Asset Sharing Model Conclusion 15 The Social Reuse of Confiscated Assets in EU Member States: From Current Experiences to an EU Policy for a "Powered-by-Citizens" Fight against Crime Introduction I. The Current State of the Art of Asset Disposal in the EU, with Special Attention to Social Reuse II. Mapping and Comparing Current Social Reuse Experiences in the EU III. Exploring the Potential for Adoption of Social Reuse of Confiscated Assets by other Member States Conclusion: What EU Standards on Social Reuse of Confiscated Assets? Bibliography Index Preface / John A.E. Vervaele -- Asset recovery in the EU : towards a comprehensive enforcement model beyond confiscation? - an introduction / Katalin Ligeti and Michele Simonato -- Confiscation and concept of punishment : can there be a confiscation without a conviction? / Michele Panzavolta -- The history of confiscation laws : from the book of exodus to the war on white-collar crime / Michaël Fernandez-Bertier -- Civil forfeiture in Ireland : two decades of the proceeds of crime act and the criminal assets bureau / Colin King -- The problematic nature of asset recovery measures : recent developments of the Italian preventive confiscation / Francesco Mazzacuva -- Extended confiscation : criminal assets or criminal owners? / Johan Boucht -- Modern forms of confiscation and protection of third parties / Isidoro Blanco Cordero -- Tax, money laundering and offshore : the HSBC Suisse affair / Peter Alldridge -- Asset recovery in four dimensions : returning wealth to victim countries as a challenge for global governance / Radha Ivory -- Restitution of dirty assets : a Swiss template for the international community / Frank Meyer -- The relevance of asset recovery policies in transitional societies : the croatian perspective / Elizabeta Ivičević Karas and Sunčana Roksandić Vidlička -- The American perspective on recovering criminal proceeds in criminal and non-conviction based proceedings / Stefan Cassella -- The "pre-investigative" role of financial intelligence units in recovering assets / Marc Penna -- Digital currencies and the anti-money laundering/counter-terrorism financing regulations in the EU : imaginary risk or real challenge? / Jacek Czarnecki -- Asset sharing as a solution for more efficient cross-border asset recovery in the EU? : the EU asset sharing model and its implementation in Belgium and the Netherlands / Dirk Van Daele and Laura Vande Reyde -- The social reuse of confiscated assets in the EU member states : from current experiences to an EU policy for a 'powered-by-citizens' fight against crime / Barbara Vettori and Andrea di Nicola Présentation de l'éditeur : "The fight against dirty money is not a new topic, nor a recent problem. It has existed within international and national agendas since the 1980s. Nonetheless, the evolving complexity of criminal skills and networks; the increasingly global dimension of crime; the financial crisis; and the alleged unsatisfactory results of the efforts hitherto undertaken cause us to re-pose and re-discuss some questions. This book addresses several issues concerning the reasons, objectives and scope of national and supranational strategies targeting criminal money, as well as the concrete modalities to overcome its obstacles. The main objective is to explore where the EU stands and where it ought to go, providing useful input for policy-makers and further research. Nevertheless, the problems are not limited to the EU area, and assets - particularly money - cross EU borders much more easily than people do. The reflections developed in the chapters, therefore, aim at going beyond these EU borders. The book is divided into two parts. The first one focuses on the core of asset recovery policies, namely confiscation or forfeiture laws, and explores in particular some issues concerning the respect of fundamental rights. The second part addresses other problematic aspects related to the asset recovery process, such as the return of assets to victim countries, the cross-border investigations on dirty money, and the social use of confiscated assets." "The fight against dirty money is not a new topic, nor a recent problem. It has existed within international and national agendas since the 1980s. Nonetheless, the evolving complexity of criminal skills and networks; the increasingly global dimension of crime; the financial crisis; and the alleged unsatisfactory results of the efforts hitherto undertaken cause us to re-pose and re-discuss some questions. This book addresses several issues concerning the reasons, objectives and scope of national and supranational strategies targeting criminal money, as well as the concrete modalities to overcome its obstacles. The main objective is to explore where the EU stands and where it ought to go, providing useful input for policy-makers and further research. Nevertheless, the problems are not limited to the EU area, and assets--particularly money--cross EU borders much more easily than people do. The reflections developed in the chapters, therefore, aim at going beyond these EU borders. The book is divided into two parts. The first one focuses on the core of asset recovery policies, namely confiscation or forfeiture laws, and explores in particular some issues concerning the respect of fundamental rights. The second part addresses other problematic aspects related to the asset recovery process, such as the return of assets to victim countries, the cross-border investigations on dirty money, and the social use of confiscated assets."--Bloomsbury Publishing.