The Court of Justice of the European Union has provided guidance on specific provisions of the Directive (2014/42) on the freezing and confiscation of instrumentalities and proceeds of crime, in a judgment delivered on Thursday 21 October (Joined Cases C-845&863/19).
The case concerns two Bulgarians convicted in February 2019 for possession of highly dangerous narcotics. The money in their possession was not confiscated, as the two Bulgarians stated that the money belonged to family members who had not participated in the criminal proceedings, as Bulgarian law does not permit them to do so.
Referred to by the Varna Regional Prosecutor’s Office, the Court is of the opinion that the possession of narcotics for the purposes of their distribution comes within the scope of the Directive, even though all the elements inherent in the commission of that offence are confined within a single Member State.
Secondly, the Court finds that EU law provides for the confiscation of property belonging to a person convicted of a criminal offence and derived from other criminal activities. However, such confiscations must be carried out if the person concerned can contest the circumstances of the case (Article 8(8) of the Directive) and if the criminal offence committed (active and passive corruption in the private sector, participation in a criminal organisation, child pornography, infringement of the integrity of a data system - Article 5(2)) provides an economic benefit.
In the case of extended confiscation of assets not directly related to the criminal offence committed, a Member State may take into account the modus operandi, the circumstances of the case and other concrete factual elements such as a disproportion between the value of the assets and the lawful income of the convicted person.
The confiscation from a third party presupposes that it has been established that a suspected or accused person has transferred proceeds to a third party or a third party has acquired such proceeds, and that that third party was aware of the fact that the purpose of that transfer or acquisition was to avoid confiscation.
Thirdly, the Court holds that Directive 2014/42, read in conjunction with Article 47 of the EU Charter of Fundamental Rights, precludes national legislation which allows for the confiscation, in favour of the State, of property allegedly belonging to a person other than the perpetrator of the criminal offence, without that person having the right to appear as a party in the confiscation proceedings. This third party must have the right to an effective remedy and a fair trial.
See the Court’s judgment: https://bit.ly/2ZfsvlO (Original version in French by Mathieu Bion)