16 Amendments of Jan Philipp ALBRECHT related to 2012/0036(COD)
Amendment 45 #
Proposal for a directive
Recital 12
Recital 12
(12) The issuance of confiscation orders generally requires a criminal conviction. In some cases, even where a criminal conviction cannot be achieved, it should still be possible to confiscate assets in order to disrupt criminal activities and ensure that profits resulting from criminal activities are not reinvested into the licit economy or criminal activities. Some Member States allow confiscation where there is insufficient evidence for a criminal prosecution, if a court considers on the balance of probabilitiesis convinced, after making full use of all the available evidence, that the property is of illicit origin, and also in situations where a suspect or accused person becomes a fugitive to avoid prosecution, is unable to stand trial for other reasons or died before the end of criminal proceedings. This is referred to as non-conviction based confiscation. Provision should be made to enable non-conviction based confiscation in at least the latter, limited, circumstances in all Member States. This is in line with Article 54.1.c) of the United Nations Convention against Corruption, which provides that each State Party is to consider taking the necessary measures to allow confiscation of illicitly acquired property without a criminal conviction, including in cases in which the offender cannot be prosecuted by reason of death, flight or absence.
Amendment 47 #
Proposal for a directive
Recital 12 a (new)
Recital 12 a (new)
(12a) In individual cases it should be possible to dispense, wholly or in part, with a confiscation order. Thus this would be possible in cases where the measure would disproportionately burden the person affected or lead to the loss of his livelihood, or if the cost of the confiscation disproportionately exceeds the amount being confiscated.
Amendment 48 #
Proposal for a directive
Recital 12 b (new)
Recital 12 b (new)
(12b) Confiscation should not hinder or prevent justified claims by victims of criminal offences committed by the person affected. It should be possible to dispense with confiscation where the victim has a claim against the perpetrator as a result of a criminal offence and confiscation would prevent this claim from being fulfilled.
Amendment 76 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
(4) ‘confiscation’ means a penalty or a measure, ordered by a court following proceedings in relation to a criminal offencein a judgment or following criminal proceedings resulting in the final deprivation of property;
Amendment 85 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Each Member State shall take the necessary measures to enable ita judicial authority, or a judicial authority acting on a court order, to confiscate, either wholly or in part, instrumentalities and proceeds following a final conviction for a criminal offence.
Amendment 89 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
2. Each Member State shall take the necessary measures to enable it to a judicial authority or a judicial authority acting on a court order, according to their respective powers, to confiscate property the value of which corresponds to the proceeds following a final conviction for a criminal offence when the confiscation provided for in paragraph 1 is not possible.
Amendment 99 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Each Member State shall adopt the necessary measures to enable it to confiscate, either wholly or in part, property belonging to a person convicted of a criminal offence where, based on specific facts, a court finds it substantially more probablend after making full use of all the available evidence, a court is convinced that the property in question has been derived by the convicted person from similar criminal activities than from other activities.
Amendment 103 #
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 where, based on specific facts and after making full use of all the available evidence, the court is convinced that proceedings which could, if the suspected or accused person had been able to stand trial, have led to a criminal conviction, where:
Amendment 109 #
Proposal for a directive
Article 5 – paragraph 1 – point a
Article 5 – paragraph 1 – point a
(a) the death or permanent illness of the suspected or accused person prevents any further prosecution; or
Amendment 121 #
Proposal for a directive
Article 6 – paragraph 2 – introductory part
Article 6 – paragraph 2 – introductory part
2. The confiscation of proceeds or property referred to in paragraph 1 shall be possible where the property is subject to restitution or where
Amendment 134 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Each Member State shall take the necessary measures to enable it to freeze property inwithout delay where there is a danger of its being dissipated, hidden or transferred out of the jurisdiction with a view to possible later confiscation. Such measures shall be ordered by, or where there is reason to suppose that the conditions for confiscation are met. Such measures shall require an order by the competent national authority, which shall be obtained without delay following the freezing of the property, except where the property consists of movable items, in which case an order shall be required only where it applied for by the person affected. The person affected by the measures under this Article shall have a right to contest the order and appeal against it to a court.
Amendment 137 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
Amendment 153 #
Proposal for a directive
Article 8 – paragraph 6 – subparagraph 1 (new)
Article 8 – paragraph 6 – subparagraph 1 (new)
The confiscation of a set of assets shall have the effect of preventing further confiscation in respect of the same assets. The Member States shall take the necessary measures to ensure that multiple confiscations in respect of the same assets are avoided.
Amendment 154 #
Proposal for a directive
Article 8 – paragraph 6 – subparagraph 2 (new)
Article 8 – paragraph 6 – subparagraph 2 (new)
All Member States shall take the necessary measures to ensure that, where as a result of a criminal offence injured parties have claims against the accused, confiscation does not jeopardise the enforcement of such claims.
Amendment 161 #
Proposal for a directive
Article 9 – paragraph 1 a (new)
Article 9 – paragraph 1 a (new)
Amendment 175 #
Proposal for a directive
Article 11 – paragraph 1 – introductory part
Article 11 – paragraph 1 – introductory part
Member States shall regularly collect and maintain comprehensive statistics from the relevant authorities in order to review the effectiveness of their confiscation systems. The statistics collected shall be sent to the Commission each year and shall include for all criminal offences falling within the scope of this directive: