Confiscation and fundamental rights across criminal and non-criminal domains

Simonato, Michele

doi:10.1007/s12027-017-0485-0

Cited by 19 publications

(11 citation statements)

References 8 publications

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“…As Rainford and Reif stated, "[p]rocedure effects determine its [the legal institution's] moral status, not the name given by the legislative" (Rainbolt & Reif, 1997, 50; see in that context also : Simonato, 2017). To answer the question of the civil or criminal character of forfeiture, the basis for forfeiting the proceeds of crime must be taken into account.…”

Section: Justification Of Forfeiturementioning

confidence: 99%

Should gains from criminal knowledge be forfeited?

Mamak

Barczak-Oplustil

Kwiatkowski

et al. 2021

Crime Law Soc Change

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Nobody should profit from crime; this fundamental moral principle is uncontroversial. At the level of public declaration, few people are likely to disagree with this statement; however, controversies arise when the implementation of this principle is under discussion. Numerous provisions exist that aim to strip criminals of the proceeds from their crimes, but not all aspects of this issue are immediately apparent. For example, a significant question is how to treat profits that a criminal makes from activities including recounting stories about their criminal activities, publishing books describing their actions, or creating YouTube videos presenting details about their crimes. Such profits are either treated as legitimate or are targeted by complicated legal methods of deprivation. The view presented in this paper could facilitate the ability to strip criminals from these forms of profit. This article argues that revenue accruing from knowledge gained from association with crime should be treated as indirect proceeds of crime and, as such, should be forfeited.

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Section: Justification Of Forfeiturementioning

confidence: 99%

Should gains from criminal knowledge be forfeited?

Mamak

Barczak-Oplustil

Kwiatkowski

et al. 2021

Crime Law Soc Change

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“…This regime is designed in such a way that it can be applied to persons who are not convicted. 48 Moreover, the Italian model of confiscation does not have the effect of transferring ownership of assets to the public authorities.49 The ECtHR makes clear that confiscation is an effective and necessary measure in combating the Italian Mafia.50 Therefore, 'the preventive purpose of confiscation justifies its immediate application notwithstanding any appeal. '51 For these reasons, the ECtHR has never considered confiscation as punitive.52…”

Section: Preventive Aspect Of Sanctionsmentioning

confidence: 99%

Guilty Until Proven Innocent? The EU Global Human Rights Sanctions Regime’s Potential Reversal of the Burden of Proof

et al. 2021

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This article explores the extent to which the European Global Human Rights Sanctions Regime (eughrsr) should be deemed to contain punitive elements, and if such elements do exist, how the principle of presumption of innocence should be applied to the targeted entity. Taking into account the Engel-criteria, literature research and existing national human rights sanctions regimes, we claim that under specific circumstances the Regime could be considered punitive, and argue that in such situations, certain safeguards with regard to the burden of proof require additional attention.

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“…Macedonian legislator, has defined "property" more broadly, where unlike to the Directive's definition, Macedonian solution is as follows: "The term "property" shall mean money or other instruments for payment, securities, deposits, other property of any kind, tangible or non-tangible, movable or immovable, other rights to items, claims, as well as public documents and legal documents for ownership and operational assets in written or electronic form, or instruments which prove the right to ownership or interest in such property". 18 Since Macedonian definition is broader, we do not think that there is necessity for additional amendments to the Criminal Code regarding the acceptance of the legal definition from the Directive.…”

Section: Legal Definitionsmentioning

confidence: 99%

The Impact of the Eu Directive 2014/42/ Eu on Freezing and Confiscation of Instrumentalities and Proceeds of Crime to the Macedonian Criminal Justice System

Misoski

2018

Eu and Comparative Law Issues and Challenges Series

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Republic of Macedonia is the candidate-member state of the EU and has started its High Level Accession Dialogue (HLAD), therefore it is of essential interest to harmonize its national criminal legal system to the EU law. In this article the author elaborates the impact of the EU's Directive 2014/42/EU considering the European framework for freezing and confiscation of instrumentalities and proceeds of crime in the European Union to the Macedonian criminal justice system. The level of transposition and harmonization of this EU Directive into Macedonian legal system is evaluated through the steps from the ongoing reform of the Macedonian criminal justice system. Hence, the author will examine the current Macedonian legal framework together with the Macedonian courts' practice regarding the implementation of the existing legal provisions for freezing, confiscation and recovery of the assets, together with the elaboration of the possible limitations and reasons for infrequent use of these measures by the Macedonian courts. In this fashion the author will detect the most common problems particularly with the question of the impact of the time limitation of the freezing of the assets during the criminal procedure, and will provide possible solutions for improvement of the national legal framework.

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Confiscation and fundamental rights across criminal and non-criminal domains

Cited by 19 publications

References 8 publications

Should gains from criminal knowledge be forfeited?

Should gains from criminal knowledge be forfeited?

Guilty Until Proven Innocent? The EU Global Human Rights Sanctions Regime’s Potential Reversal of the Burden of Proof

The Impact of the Eu Directive 2014/42/ Eu on Freezing and Confiscation of Instrumentalities and Proceeds of Crime to the Macedonian Criminal Justice System

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