Third party confiscation

Abstract

The scope of the present paper is to examine whether current criminal legislation enables or prohibits the application of the legal remedy of confiscation of criminal assets directly from third parties, or alternatively, whether the civil law regulatory framework deems it necessary and desirable for such items to be restored to the pool of assets belonging to the accused or the defendant. If so, this latter approach would be applied as a pre-emptive action ahead of considering the merits of the relevant underlying case under criminal law, and only after its application thereof would one seek to impose the remedy of confiscation so that the title of the transfer of ownership would pass from the accused or the defendant to the pool of public assets belonging to the State.

The paper begins through a preliminary analysis of the underlying causes of the issue at hand in light of best judicial practices, insofar as these apply to the confiscation of assets directly from third parties.  

These considerations are then succeeded by a chapter aimed at addressing the legality of any such confiscation of assets from third parties in light of the fact that Directive 2014/42/EU has not yet been implemented into national law, and as a result has lead to an array of arguments that internal legislation, in its current form, fully prohibits a court of law from ordering such measures against a third party, primarily because an essential condition for doing so would be that the relevant person against whom such an order is rendered needs to have committed an unjustified criminal offence under criminal law. 

The final chapter of this paper analyses the civil law regulatory framework and the measures and remedies which are available to criminal courts in order to show the fictional transfer of criminal assets to a third party from the pool of assets owned by the accused or the defendant, as applicable.