14 Amendments of Baroness Sarah LUDFORD related to 2012/0036(COD)
Amendment 37 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7a) This Directive concerns only criminal law confiscation measures. It does not prescribe minimum rules in respect of any civil law measures which a Member State may have in respect of the confiscation of assets considered to be the proceeds of crime.
Amendment 38 #
Proposal for a directive
Recital 7 b (new)
Recital 7 b (new)
(7b) Member States are free to take confiscation procedures which are linked to a criminal case in front of any court whether criminal, civil or administrative.
Amendment 81 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
(6a) 'affected person' means any person directly affected by the freezing or confiscation of an accused or convicted person's assets.
Amendment 94 #
Proposal for a directive
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2a. Each Member State shall take the necessary measures to enable judicial authorities, in the absence of a criminal conviction, to confiscate instrumentalities and proceeds obtained through conduct which is unlawful under the criminal law where a court finds on the balance of probabilities that any matters alleged to constitute unlawful conduct have occurred. This provision does not apply to Member States who already have civil forfeiture powers which enable confiscation in the absence of a criminal conviction.
Amendment 106 #
Proposal for a directive
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
Each Member State shall take the necessary measures to enable it to confiscate proceeds and instrumentalities without a criminal conviction, following proceedings which could, if the suspected or accused person had been able to stand trial, have led to a criminal conviction or in any other proceedings, where:
Amendment 110 #
Proposal for a directive
Article 5 – paragraph 1 – point a
Article 5 – paragraph 1 – point a
(a) the deathillness or permanent illness of the suspected or accused person prevents any further prosecution; or, which results in the person being unfit to stand trial, prevents effective prosecution or where the statutory limitation period has expired due to the illness,
Amendment 112 #
Proposal for a directive
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) the illness or flight from prosecution or sentencing of the suspected or accused person combined with an inability to have the accused person returned by FD 2002/584/JHA or other means, prevents effective prosecution within a reasonable time, and poses the serious risk that it could be barred by statutory limitations.
Amendment 114 #
Proposal for a directive
Article 5 – paragraph 1 – point b a (new)
Article 5 – paragraph 1 – point b a (new)
(ba) the suspected or accused person has died
Amendment 115 #
Proposal for a directive
Article 5 – paragraph 1 – subparagraph 1 (new)
Article 5 – paragraph 1 – subparagraph 1 (new)
This provision does not apply to Member States which already have civil confiscation powers which enable confiscation in these categories of case.
Amendment 141 #
Proposal for a directive
Article 8 – paragraph 1 a (new)
Article 8 – paragraph 1 a (new)
1a. Each Member State shall take the necessary measures to ensure that affected persons have the right to an effective remedy prior to the final decision on confiscation being taken, including the opportunity to make legal representations, in order to preserve their rights.
Amendment 146 #
Proposal for a directive
Article 8 – paragraph 3
Article 8 – paragraph 3
3. Each Member State shall take the necessary measures to ensure that the accused or convicted person has the opportunity to challenge the application for confiscation before an independent judicial authority. They shall be given access to material evidence in accordance with the Directive on the right to information in criminal proceedings; have at least the right to be heard, the right to ask questions and the right to provide evidence before a final decision on confiscation is taken. Each Member State shall take the further necessary measure to ensure that reasons are given for any decision to confiscate and that the decision is communicated to the person affectedccused or convicted person. Each Member State shall provide for the effective possibility to appeal against the decision to confiscate before a court by the persons whose property is affected.
Amendment 148 #
Proposal for a directive
Article 8 – paragraph 4
Article 8 – paragraph 4
4. In proceedings referred to in Article 4, the suspected or accusconvicted person shall have an effective possibility to contest the probability on the basis of which the property concerned is considered to be proceeds.
Amendment 150 #
Proposal for a directive
Article 8 – paragraph 5
Article 8 – paragraph 5
5. In the cases referred to in Article 5, the The person whose property is affected by the decision to confiscate shall have the right to be represented by a lawyer throughout the proceedings in order to pursue the rights of the defence of the person relating to the establishment of the criminal offence and to the determination of the proceeds and instrumentalities.
Amendment 156 #
Proposal for a directive
Article 8 – paragraph 6 a (new)
Article 8 – paragraph 6 a (new)
6a. If the court comes to the conclusion that confiscation would lead to the destruction of livelihood of the concerned person, the confiscation ought to be omitted in part or completely in consideration of the principle of proportionality.