14 August 2019 (updated 4 days, 12 hours ago)
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The Financial Execution Inquiry: A Bridge too Far?
A critical analysis of a new Belgian initiative
I. The Financial Execution Inquiry As already stated, the FEI is conducted by the Belgian Prosecution Service after a confiscation order has become peremptory. We will examine the purpose of and the reason for establishment of the investigation, and we will examine the role of the actors who take part in the investigation. 1. Purpose and Reason for Establishment a) Purpose The aim of the FEI is to inquire into the assets of convicted criminals who have been sentenced to the confiscation of, in principle, a sum of money that cannot be recovered by means of civil law. Besides confiscated... Read more
In the United States, federal prosecutors routinely employ asset recovery as a tool of law enforcement. The approach takes two forms. In criminal cases, the prosecutor may seek to recover or “forfeit” property as part of the defendant’s sentence, if the defendant is convicted. Alternatively, the prosecutor may commence a civil proceeding, naming the property as the defendant and seeking to forfeit the property independent of any criminal proceeding. This article discusses the American experience with civil, or non-conviction-based, asset recovery. It discusses the prosecutor’s motivations for seeking to forfeit assets, the types of property that may be forfeited, the procedures that govern civil asset forfeiture, the advantages of civil or non-conviction-based asset forfeiture over criminal forfeiture, and the ways in which the United States, through judicial decisions and legislation, has reconciled the non-conviction-based approach with the requirements of basic human rights and civil liberties.Read more
The Directive on the Right to Information
Genesis and Short Description
On 22 May 2012, the European Parliament and the Council adopted Directive 2012/13/EU on the right to information in criminal proceedings. The directive is the second measure ("measure B") in application of the Roadmap on procedural rights, which was adopted by the Council in 2009.
The directive is evidence that Member States are in favour of measures enhancing the procedural rights of suspects and accused persons in criminal proceedings, contrary to what is sometimes said. Indeed, the directive provides a good example of legislation where the Council, together with the European Parliament, has taken a very much "pro-rights" approach, by establishing even more extensive and protective rights than those proposed by the European Commission.
This article describes the genesis of the directive and provides a short description of its contents.
The Payment of Fiscal and Social Debts with Seized Money, that Has to Be Reimbursed, in Belgium
Where Treasury, Social Security, and Justice Meet
By law of 27 March 2003, the Central Office for Seizure and Confiscation (COSC) was created in Belgium. The new institution, established within the Office of Public Prosecutors, assists the judicial authorities in criminal matters in the areas of seizure of assets, the implementation of criminal procedure with a view to the confiscation of assets, and the enforcement of final and conclusive sentences and orders involving confiscation of assets.1 One of the forms of assistance consists of the management of all cash, seized in criminal matters all over the country. By law of 20 July 2005, a new provision was... Read more
Gegenseitige Anerkennung von Geldstrafen und Geldbußen in Deutschland – zur Umsetzung des Rahmenbeschlusses 2005/214/JI in das deutsche Recht
Council Framework Decision 2005/214/JHA on the application of the principle of mutual recognition to financial penalties was implemented into German law in October 2010. With this instrument, it is for the first time possible to enforce financial penalties in all Member States of the European Union using a uniform procedure, provided that the Member States have adopted the necessary implementation laws. FD 2005/214/JHA is governed by the principle of mutual recognition, which became a cornerstone of cooperation both in civil and in criminal matters at the Council meeting in Tampere in 1999. In particular, the concept of list offences under Art 5 of the FD, where double criminality is not verified by the executing State, is based upon this principle.
In Germany, the Federal Office of Justice (Bundesamt für Justiz) in Bonn has been designated as the competent authority for incoming and outgoing requests under FD 2005/214/JHA. The following article gives ... Read more
The Directive on Interpretation and Translation in Criminal Proceedings
Genesis and Description
I. Introduction On 20 October 2010, the European Parliament and the Council adopted Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings.1 The Directive is the first legislative instrument in the field of criminal law that has been adopted under the rules of the Lisbon Treaty, and it is the first measure of the Council’s “Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings.”2 The adoption of the Directive provides interesting insight into the concrete application of the Lisbon Treaty, and it marks a significant step in the process of strengthening the procedural... Read more