11 Amendments of Mariya GABRIEL related to 2012/0036(COD)
Amendment 34 #
Proposal for a directive
Recital 2
Recital 2
(2) Organised criminal groups operate without borders and increasingly acquire assets in other Member States and in third countries. There is an increasing need for effective international law enforcement cooperation on asset recovery and mutual legal assistance. The adoption of minimum rules will harmonise the Member State's freezing and confiscation regimes facilitating mutual trust and effective cross-border cooperation.
Amendment 39 #
Proposal for a directive
Recital 9
Recital 9
(9) Confiscation of instrumentalities and proceeds following a final decision of a court, both based on a conviction or in the absence of criminal conviction, and of property of equivalent value to those proceeds should therefore refer to this broadened concept for the criminal offences covered by this Directive. Framework Decision 2001/500/JHA required Member States to enable the confiscation of instrumentalities and proceeds of crime following a final conviction and to enable the confiscation of property of equivalent value to the proceeds of crime. Such obligations should be maintained for the criminal offences not covered by this Directive.
Amendment 42 #
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 non-conviction based confiscation 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. Some Member States allow confiscation where there is insufficient evidence for a criminal prosecution, if a court considers on the balance of probabilities 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 66 #
Proposal for a directive
Recital 19
Recital 19
(19) The measures provided for in this Directive affect substantially the rights of persons, not only of suspected or accused persons but also of third parties who are not being prosecuted. It is therefore necessary to provide for specificall necessary safeguards and judicial remedies in order to guarantee the preservation of their fundamental rights in the implementation of the provisions of this Directive.
Amendment 84 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Each Member State shall take the necessary measures to enable itonly judicial authorities to confiscate, either wholly or in part, instrumentalities and proceeds following a final conviction for a criminal offence.
Amendment 88 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
2. Each Member State shall take the necessary measures to enable itonly judicial authorities, when the confiscation provided in paragraph 1 is not possible, to confiscate property the value of which corresponds to the proceeds following a final conviction for a criminal offence.
Amendment 108 #
Proposal for a directive
Article 5 – paragraph 1 – point a
Article 5 – paragraph 1 – point a
Amendment 111 #
Proposal for a directive
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
Amendment 133 #
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 in danger of being dissipated, hidden or transferred out of the jurisdiction with a view to possible later confiscation. Such measures shall be ordered by a court. It includes the introduction of non- conviction based confiscation, with full respect of the rights of the defence and of bona fide third parties, and that they can be challenged before a court.
Amendment 140 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
1. Each Member State shall take the necessary measures to ensure that the persons affected by the measures provided for under this Directive have the full right to an effective remedy and that suspects have the right to a fair trial, in order to preserve their rights, including the full right to a fair trail and the possibility to appeal the decision.
Amendment 151 #
Proposal for a directive
Article 8 – paragraph 6
Article 8 – paragraph 6
6. Where the person whose property is affected is a third party, the person or the person's lawyer shall be informed of the proceedings that can lead to a decision to confiscate that property and shall be allowed to participate in those proceedings to the extent necessary to effectively preserve the person's rights. That person shall have at least the right to be heard, the right to ask questions and the right to provide evidencethe full right to a fair trail and the right to an effective remedy before a final decision on confiscation is taken.