16.3.2023
EN
Official Journal of the European Union
C 100/109
3.6.
The proposed Directive extends the list of situations for non-conviction-based confiscation measures grounded in criminal proceedings to other cases in which a criminal conviction is not possible due to objective circumstances with immunity, amnesty and lapse of a statute of limitations.
The EESC recognises the efforts made by the Commission in imposing limits on these cases as they might be abused or used for the purposes of harassment or persecution.
3.7.
The proposed Directive includes a new confiscation mechanism ensuring the confiscation of assets not directly linked to a crime listed in the Directive but based on a suspicion of unlawful property/resulting from criminal activities.
Despite the mandatory judicial procedure preceding the confiscation order and the burden of proof for the prosecution to link the asset in question to criminal activity, more guarantees are required to exclude any possible abuses during the procedure.
National jurisdictions follow different routes varying from confiscation under civil law to criminal law.
The proposed Directive should include standards for defendants’ procedural rights and safeguards, and make sure that appropriate training is available for judges and prosecutors.
3.8.
The limited impact of the social reuse provision in the Confiscation Directive would require more encouragement for the Member States to include adequate measures to ensure the provision’s effectiveness.
The EESC asks the European Commission to be more ambitious in its efforts to make the social reuse of confiscated assets effective and set a minimum percentage for social reuse for Member States.
It is of paramount importance for social cohesion that affected communities get restorative damages directly and benefit from the returns from these damages.
Moreover, communities need better assistance to help enhance their resilience to organised crime and civil society has to be involved in managing and disposing of confiscated assets.
3.9.
As also stated in the Confiscation Directive, victims’ right to compensation will not be affected by the confiscation measures.
However, the proposed Directive still does not safeguard the prioritisation of victims’ compensation in the ranking of creditors.
At the same time, citizens of third countries are insufficiently protected by the proposed Directive and other EU legislation as their focus is on EU citizens.
3.10.
The impact assessment report points out the following shortcomings: a lack of details on the roles of the Asset Recovery Offices, and insufficient human, financial and technical resources allocated to asset tracing.
The proposed Directive responds to these findings and requires at least one recovery office to be established in each Member State.
The explicit obligation to provide adequate resources to ensure that Asset Recovery Offices are efficient and effective is welcome.
However, this obligation should be accompanied by regular reporting from the national level to the Commission regarding the resources allotted so that the Commission can evaluate whether there is any fragmentation or lack of balance between the various Asset Recovery Offices.
3.11.
The costs associated with the management of frozen and/or confiscated assets may be significant or even exceed the value of the relevant asset.
The proposed Directive includes an obligation for the competent authorities to assess the costs before issuing a freezing order.
The EESC welcomes this measure as an efficient and useful instrument meant to reduce the necessary costs and maximise the subsequent value of the asset.
3.12.
The interlocutory sales mechanism may be applied in limited cases, which are now listed in the proposed Directive, and is likely to contribute to more effective management of the frozen assets.
Despite the fact that the mechanism is available in most Member States, it is used on a small scale and with great variation.
The proposed Directive is likely to enhance the use of this mechanism by introducing a single definition and the conditions under which it should be used.
3.13.
The absence of comprehensive and comparable statistics was found to be a major shortcoming in making the asset recovery system more effective.
In this respect, the proposed Directive requires each Member State to establish an asset recovery registry that will collect encoded information from competent authorities throughout the asset recovery process.
3.14.
The EESC believes that unifying all relevant legal provisions for asset recovery in a single Directive is in line with the Commission’s Regulatory Fitness and Performance Programme (REFIT) and will help the relevant authorities and stakeholders understand the rules better and help improve the implementation and effectiveness of measures meant to increase the illicit asset recovery rate in national jurisdictions.