Improving asset confiscation: in the quest for effective and just solutions

Abstract

The quest for effectiveness in criminal law results in creating non-punitive sanctions based on evidentiary facilities and lowered standard of proof. European courts, while focusing on procedural safeguards, perceive the structure of criminal sanctions as an element of national penal policy and leave it to the national authorities. The latter may, however, be ready to sacrifice certain important aspects of criminal law, like judicial discretion or individual guarantees, for the sake of unspecified 'effectiveness of legal regulations'. In case of asset confiscation such approach can result in forfeiture of significant quantities of property without the certainty that it actually comes from a crime. Therefore, it seems necessary to identify the framework of criminal law principles applicable to non-punitive sanctions, in order to receive-while interpreting legal provisions-an effect that is not only a (presumably) effective, but also a just solution. This paper contributes to this issue with particular emphasis on extended form(s) of asset confiscation.

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ERA Forum
https://doi.org/10.1007/s12027-024-00806-8
ARTICLE
Improving asset confiscation: in the quest for effective and
just solutions
El˙
zbieta Hryniewicz-Lach1
Accepted: 22 August 2024
© The Author(s) 2024
Abstract
The quest for effectiveness in criminal law results in creating non-punitive sanctions
based on evidentiary facilities and lowered standard of proof. European courts, while
focusing on procedural safeguards, perceive the structure of criminal sanctions as an
element of national penal policy and leave it to the national authorities. The latter
may, however, be ready to sacrifice certain important aspects of criminal law, like ju-
dicial discretion or individual guarantees, for the sake of unspecified ‘effectiveness of
legal regulations’. In case of asset confiscation such approach can result in forfeiture
of significant quantities of property without the certainty that it actually comes from a
crime. Therefore, it seems necessary to identify the framework of criminal law prin-
ciples applicable to non-punitive sanctions, in order to receive – while interpreting
legal provisions – an effect that is not only a (presumably) effective, but also a just
solution. This paper contributes to this issue with particular emphasis on extended
form(s) of asset confiscation.
Keywords Extended confiscation ·Asset recovery ·Effectiveness ·EU criminal law
1 Confiscation of assets in the system of criminal sanctions
Placing a legal instrument in the framework of criminal law activates the fundamental
rights protection applicable to legal tools based on repression. However, this does not
This article was elaborated within the project “Extended confiscation and its justification in light of
fundamental rights and general principles of EU law” financed by the National Science Centre,
Poland, under project registration number 2020/39/D/HS5/01114 (https://konfiskata.web.amu.edu.pl/
en/).
E. Hryniewicz-Lach
hryniew@amu.edu.pl
1Prof. UAM dr hab., Adam Mickiewicz University, Poznan, Poland

E. Hryniewicz-Lach
mean that every instrument regulated in the field of criminal law must be repressive. It
has long been observed that effective response to criminal offence and the functional-
ity of criminal law require simultaneous use of different types of sanctions.1Among
them are penalties (repressive first track sanctions), preventive measures (protective
second track sanctions) as well as solutions aimed at depriving a perpetrator, and
other beneficiaries of criminal activity, of criminal gain and restoring the lawful state
(restorative third track sanctions): compensation and certain forms of confiscation.2
Their regulation in criminal statutes is recognised as a fact, which requires determin-
ing how to correctly apply the relevant provisions.3Although the principles constitut-
ing criminal law4have been designed for determining criminal liability and imposing
punishment as a consequence, they are tried to be appropriately applied also to the
non-repressive sanctions of criminal law.
Confiscation involves various forms of forfeiture of a different nature: the loss of
instrumentalities, proceeds or property the value of which corresponds to such instru-
mentalities or proceeds. Therefore its proper assignment to the category of criminal
sanctions within the three-track system requires specifying what type of it is being
discussed (and still the classification may differ among European Union (EU) Mem-
ber States). Whereas the confiscation of instrumentalities (the items that served to
commit a crime or were intended for such use) are of a mainly preventive nature and,
if they are of significant value (e.g., vehicle confiscated for drunk driving), also of a
repressive one, the confiscation of assets (criminal proceeds) is primarily a restorative
solution. Although all types of criminal sanctions bring some hardship with them and
put an affected person in a worse position than prior to having been subjected to the
sanction, the repressive (punitive) nature of penalty implies putting them in a worse
position than that which they held prior to engaging in unlawful conduct. Therefore
punitive sanctions are claimed to be sanctions, which - in terms of reaction to the state
of affairs resulting from a crime - create a more far-reaching detriment than necessary
to restore status quo ante.5Thus closer examination of a criminal sanction requires
to establish first a predominant function of an instrument falling into the broad scope
of this concept. This article refers to confiscation of assets: a legal solution aimed
mainly at depriving a beneficiary of the proceeds from criminal activity in order to
demonstrate that crime does not pay.6
1Hassemer 1987, 264 [14].
2Hochmayr 2012, 65-68 [16].
3Hassemer 2006, 143 [15].
4Among them are the principles of: individual responsibility, limiting nature of guilt, proportionality of
the reaction to the gravity of the act, inviolability of the essence of constitutional rights and freedoms
and procedural principles, such as: in dubio pro reo,ne bis in idem,nemo tenetur se ipsum accusare,the
presumption of innocence, the right to defence or to fair trial. Hassemer 1987, 264 [14].
5Boucht 2019, 539 [6].
6Report 2020 [38].

Improving asset confiscation: in the quest for effective and just solutions
2 Effectiveness must be just: how to reach the balance in criminal law
2.1 What hurts the offenders most...
The importance of asset confiscation for criminal law derives from belief that this
legal solution can provide for effectiveness in counteracting acquisitive crime, in par-
ticular organised crime.7However, despite the effectiveness of criminal sanctions
being one of the most important, it is also one of the most problematic concepts in
criminal law. It can be understood in the context of the functions of a sanction in
criminal law:8its capability for deterrence9(and other aspects of prevention), for just
reaction and for restoration of the lawful state, whereas asset confiscation seems to
fit best with the latter.10
In relation to asset confiscation it is indicated that its effectiveness can be es-
tablished once the gap between the amount of confiscated assets compared to total
criminal wealth (and the latter compared to the legal income in general) can be re-
liably measured,11 which is rather unlikely due to lack of available data on the total
amount of criminal assets (and methodological shortcomings in the assessment of
frozen and confiscated assets).12 This eventually results in the assumption that the
indicator of effectiveness is a simple increase in the number and value of confiscated
assets,13 which can be achieved through legislation favouring simplified confiscation
regimes.14 This is true to a certain extent: the legal context is important to create a
legitimate basis for freezing and confiscation activity (after having verified whether
such a response is sufficiently justified).15 However, even the most reasonable and
promising solutions created on paper remain impotent without their practical appli-
cation. The latter largely depends on everyday practice and thinking of police officers,
prosecutors or judges: their knowledge about relevant legal instruments, their ability
and willingness to enforce the law and to cooperate internally and in a cross-border
manner, in particular in the EU framework of mutual recognition of judicial deci-
sions.16
The effectiveness in the context of (freezing and) confiscation of assets can there-
fore be understood at least in three ways, which constitute three aspects of effec-
tiveness: the functional effectiveness of a sanction (whether it performs the functions
assigned to it),17 the cooperative effectiveness (whether a cooperation between dif-
7Explanatory Memorandum 2022, 1 [11]; Fazekas & Nanopoulos 2016, 40 [12].
8Melander 2014, 274-275 [25].
9Suominen 2014, 403 [45].
10Boucht 2017, 98-116 [5]; Boucht 2021, 256-259 [7].
11Naylor 1999, 15 [31].
12Fazekas & Nanopoulos 2016, 47-48 [12]; Boucht 2019, 537 [6]; Forsaith et al. 2012, 23 [13]; Naylor
1999, 3, 15-16 [31]; NIK 2019, 31-37 [30].
13Nelen 2004, 527-529 [32]; Naylor 1999, 15 [31].
14Mitsilegas 2014, 417-423 [28].
15Naylor 1999, 3 [31].
16Fazekas & Nanopoulos 2016, 58, 64 [12]; Suominen 2014, 406 [45]; Boucht 2019, 534-536 [6]; Boucht
2017, 12-13 [5]; Sittlington & Harvey 2018, 436 [42]; Forsaith et al. 2012, 81, 251-254 [13].
17Boucht 2021, 261-262 [7].

E. Hryniewicz-Lach
ferent authorities is swift, without many legal or practical problems)18 and the en-
forcement effectiveness (measurable in terms of the amounts and values of frozen and
confiscated property).19 While the second and third aspect of effectiveness seem to
be relatively easy recognisable in practice and measurable using (to some extent) a
quantitative approach, the first aspect: the functional effectiveness, seems to be caus-
ing more problems and requires a qualitative attitude.
The sanction develops its (functional) effectiveness when it meets the motivation
of those affected.20 Swedish criminological research based on interviews with offend-
ers resulted in the observation that individuals involved in economic and organised
crime have a different attitude towards different types of criminal sanctions. They
know the rules of the game and expect to face punishment someday, including it in
the risk assessment as one of the dangers of the involvement in criminal activity.
Their approach to the confiscation of illicit proceeds is, however, quite different: they
hope to succeed with hiding the illegally acquired assets, which many of them keep
extremely carefully, applying completely different security strategies in relation to
withholding money and when the actual crime is perpetrated.21 Similar results were
obtained in a UK qualitative study on AML stakeholders, which revealed that offend-
ers fear confiscation more than they ever fear a prison sentence and in the criminal
proceedings they are more interested in ‘making a deal’ on the confiscation side than
in appealing the sentencing.22 The observation that a (repressive) penalty is perceived
by the offenders as an acceptable ailment whereas (restorative) confiscation,in partic-
ular where benefits of significant value are at stake, is not acceptable to them, seems
to confirm the assumption that the approach based on confiscation of the proceeds of
crime can hit the offenders where it hurts them most.23
2.2 ... requires necessary safeguards
Functional effectiveness is guided by the aim to be achieved, which in case of asset
confiscation is depriving beneficiaries of illicit assets.24 The interference with funda-
mental rights should then go no further than what is strictly necessary to achieve this
aim and the rights of the affected person(s) should otherwise remain intact.25 This
requirement may, however, be difficult to meet in light of current development of the
new generations of asset confiscation regimes, based on linking defendant’s assets
with unspecified criminal conduct or not requiring conviction for a predicate offence.
18Suominen 2014, 402 [45].
19Nelen 2004, 527-529 [32].
20Hassemer 1987, 264 [14]. However, in reference to the offenders, this may not mean that they gave up
their criminal activities, but simply scaled down their ambitions or moved elsewhere. Levi 2022, 10-11
[23].
21Vesterhav & Forman & Korsell 2021, 135-136 [47].
22Sittlington & Harvey 2018, 433-435 [42].
23Cf. title of H. Nelen’s article: Hit them where it hurts most? The proceeds-of-crime approach in the
Netherlands, 2004, 517 [32].
24Cf. 16 country reports on extended confiscation: https://konfiskata.web.amu.edu.pl/en/documents/.
25Buisman 2022, 172-174 [8].

Improving asset confiscation: in the quest for effective and just solutions
They include: extended confiscation of assets, which cannot be assigned to a specific
criminal offence, non-conviction based confiscation, when conviction is not possible
due to procedural obstacles, or confiscation of unexplained wealth linked to crimi-
nal activities, when confiscation is not possible pursuant to other legal bases, but the
defendant’s assets can still be linked to acquisitive organised crime.26
Expansion in the asset confiscation field is supported by the EU legislator, who
obliges Member States to enable confiscation to an increasingly wide extent, by the
means of a directive (currently Directive 2014/42/EU27 and subsequently Directive
2024/1260)28 harmonising EU-wide29 confiscation regimes and of a regulation (REG
2018/1805)30 obliging Member States to recognise and execute freezing and confis-
cation orders in criminal matters from other Member States, regardless of whether
they provide similar solutions - or even whether they would accept them - in their
own legal system.31 This approach is based on (mutual) trust that all EU Member
States respect common values (as declared in Article 6.3 TEU), which, however, has
already been questioned in CJEU case law.32 This gave rise to assumption that certain
guarantees should be directly indicated in EU legal acts33 and not respecting them by
a Member State should justify the refusal to recognise and enforce its court orders in
other Member States.34
However, an increase in the number and value of confiscated assets (the enforce-
ment effectiveness) is tried to be achieved, in principle, not through failing to include
procedural safeguards in legal acts, but by modifying the structure of confiscation in-
struments. The ECtHR notices this fact, but perceives the structure of criminal sanc-
tion as part of national criminal policy, assuming that no matter how a specific instru-
ment is shaped, procedural safeguards should still sufficiently protect a defendant in
a criminal case.35 Nevertheless, in the evidentiary proceedings the limitation of safe-
guards is often explained as a consequence of the nature and structure of a criminal
sanction. The Court observes that in a fair trial a defendant has a right to expect that
a prosecutor bears the onus of proving the allegations against them and should have
a chance to refer to all gathered evidence, but at the same time it notices that those
26Boucht 2019, 529-534 [6].
27Directive 2014/42/EU of the European Parliament and of the Council April of 3.4.2024 on the freezing
and confiscation of instrumentalities and proceeds of crime in the European Union (O.J.EU 29.4.2014, L
127/39).
28Directive (EU) 2024/1260 of the European Parliament and of the Council of 24.4.2024 on asset recovery
and confiscation (O.J. EU 2.5.2024, L series).
29With exclusion of Denmark and Ireland (the latter only in reference to Directive (EU) 2024/1260).
30Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14.11.2018 on the mutual
recognition of freezing orders and confiscation orders (O.J. EU 28.11.2018, L 303/1).
31Meyer 2020, 141-144 [26]; Oliveira e Silva 2022, 202, 214 [33].
32CJEU judgments of 5.4.2016, Aranyosi and C˘ald˘araru (joined cases C-404/15 and C-659/15) and of
25.7.2018, LM (C-216/18).
33Art. 8 of the Directive 2014/42/EU, Chapter V of the Directive (EU) 2024/1260.
34Art. 8 and 19 of the Regulation (EU) 2018/1805.
35ECtHR’s judgments of 22.2.1994, Raimondo (12954/87), § 30, of 5.7.2001, Arcuri (54024/99), p. 5-
7, of 23.9.2008, Grayson and Barnham (19955/95, 15085/96), §§ 42-49 and of 16.12.1992, Edwards
(13071/87), § 34.

E. Hryniewicz-Lach
rights are not absolute and should be analysed within the framework of the adopted
structure of legal sanction.36 Such structure may include presumption about illicit
origin of defendant’s assets shifting to them a burden of counterproof, which may
result in serious difficulties for a defending party.37 If a defendant is obliged to prove
legal origin of their assets, their attempt to challenge a confiscation order arguing that
a prosecutor has not sufficiently demonstrated the opposite will probably fail, which
shows that also the right to effective remedy is closely linked to the rules of evidence,
which may result from the structure of a confiscation sanction.
Another problematic example provides the presumption of innocence, which cre-
ates a part of a right to defence. It is guaranteed, among others, by Article 6.2 ECHR,
which is directly applicable to criminal charge (as it should protect an individual
against wrongful conviction), whereas confiscation appears once the issue of crimi-
nal liability has been resolved. However, in many legal systems the asset confiscation
is ruled together with conviction in one (final) verdict and therefore the conditions
for its application are being predominantly established before criminal liability of a
defendant is determined. This results in a criminal proceeding being separated into
two parallel procedures, in which the defendant is once presumed innocent for the
sake of their criminal liability and at the same time presumed (to have already been)
convicted for the same crime for the purpose of confiscation of property. Although
by non-punitive sanctions procedural safeguards similar to those relating to criminal
charge (Articles 6.2 and 3 ECHR) can be derived from a universal right to a fair trial
(included in Article 6.1 ECHR),38 the structure of extended confiscation - based on
the assumption that defendant’s assets come from undefined criminal activity - may
result in putting evidentiary facilities above the effective use of legal safeguards.
Problems with basic safeguards by confiscation sanctions also appear in the
CJEU’s case law39 and may continue to arise in legal practice of EU Member States.
The confiscation regimes were harmonised at EU level, whereas the decision regard-
ing the structure of specific sanctions was left to Member States, with an assumption
that they would secure judicial discretion in the evaluation of evidence. Such dis-
cretion is, however, substantially limited in case of presumption of illicit origin of
assets, derived from conviction for a predicate offence and the existence of a defen-
dant’s valuable assets. If in such a case a defendant has an opportunity to address
the issue of the origin of property in a judicial procedure including a public hearing,
advance disclosure of the prosecution case and the opportunity for the applicant to
adduce documentary and oral evidence (thus the proceedings can be considered fair
in principle)40 and remains silent, then a court, even when it considers that illicit ori-
gin of the assets in question seems unlikely,41 is obliged to decide in favour for the
36ECtHR’s judgment of 5.7.2001, Phillips (41087/98), §§ 40, 43-47.
37Lawrence 2008, 22-24 [22].
38ECtHR’s decision of 5.7.2005, Van Offeren (19581/04), p. 10-11; ECtHR’s judgments of 5.7.2001,
Phillips (41087/98), § 44 and of 23.9.2008, Grayson and Barnham (19955/95, 15085/96), § 47.
39CJEU’s judgment of 21.10.2021 in joined cases: C-845/19 and C-863/19, § 19.
40ECtHR’s judgment of 5.7.2001, Phillips (41087/98), § 43. The applicability of ECtHR’s case law to EU
legal provisions is regulated by Article 52.3 of the EU Charter.
41E.g., by a one-time offender. Boucht 2017, 146-149 [5].

Improving asset confiscation: in the quest for effective and just solutions
presumed state.42 Otherwise, the ruling could be found inconsistent with the sepa-
ration of powers (unless perceived as the enforcement of judicial independence).43
Therefore it seems necessary to verify whether such a situation may arise in the EU
confiscation law and how it can be overcome.
3 Security check on confiscation solutions
3.1 The structure of confiscation sanction: a reversal of a burden of proof
Although the EU authorities seem to be a strong supporter of expanding confiscation,
which should contribute to the increase in asset recovery, Directive 2014/42/EU does
not require Member States to presume illicit origin of a defendant’s property, or to
apply a reversed burden of proof in this regard. The provision on extended confis-
cation, repeated in the Directive 2024/120/EU, leaves the ruling on confiscation of
property, which cannot be attributed to a concrete criminal offence, to a court’s de-
cision where a national court is satisfied that the property is derived from criminal
conduct.44 Such wording delivers nothing more than a basis for inference that a de-
fendant may have benefited from some (unspecified) criminal activity. Nevertheless,
many Member States perceived it as an authorisation for relatively far-reaching evi-
dentiary facilities. Conviction for an acquisitive crime often became a sufficient basis
for conclusion that another convict’s property is also of illicit origin and resulted in
shifting a burden of counterproof in this regard to a convict. Thus, the reversed bur-
den and lowered standard of proof, the presumption of illicit origin of a defendant’s
assets, the waiver of in dubio pro reo principle, of the right to silence and of the pre-
sumption of innocence, have been built into the structure of new confiscation regimes
and even perceived as an inherent part.
The research on extended confiscation conducted in 16 EU Member States45 re-
sulted in the observation that only a few of them did not require from a defendant to
prove, or at least credibly claim, the lawful acquisition of their assets; some Mem-
ber States have even opted for the automatically reversed burden of proof.46 This is
not a mysterious coincidence: a reversal of a burden of proof can be found in other
international legal acts relating to asset confiscation, which EU Member States are
parties to.47 In Member States which do not apply this mechanism the decision was
42The presumption as used herein means that the existence of one fact is derived from proof of another
one and such inference is mandatory unless rebutted. Jeffries & Stephan 1979, 1335 [19].
43Cf. Forsaith et al. 2012, 217-218 [13].
44Article 5.1 of the Directive 2014/42/EU and Article 14.1 of the Directive (EU) 2024/1260.
45https://konfiskata.web.amu.edu.pl/en/ Similar observation was made in reference to the CoE Warsaw
Convention: Council of Europe 2021, §§ 11, 27 [9].
46Meant as burdening a defendant with proving legal origin of their property, without a need for a prose-
cutor to first present at least prima facie evidence in this respect. Boucht 2017, 194-195 [5].
47In particular in Article 5(7) of the UN Convention against Illicit Traffic in Narcotic Drugs and Psy-
chotropic Substances (of 20.12.1988), Article 12(7) of the UN Convention of Transnational Organized
Crime (of 15.11.2000), Article 31(8) of the UN Convention against Corruption (of 31.10.2003) or in Ar-
ticle 3(4) of the CoE Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from
Crime and on the Financing of Terrorism of 16.5.2005 (of 16.5.2005).

E. Hryniewicz-Lach
explained by an explicit constitutional requirement to presume legal acquisition of
property (Romania)48 or by the need to effectively protect property (Germany).49 It
should also be noted that one state (Luxembourg), in order to make the extended
confiscation regime consistent with its constitution, decided to abolish relevant con-
stitutional provision.50 Although this latter unique solution does not allow one to
draw conclusions about the possibility of amending the constitution in other Member
States if its provisions block the development of confiscation regimes,51 it shows that
Member States have already noticed that the (transnational) development of criminal
law may even require far-reaching modification of their constitutional rules.52
The available statistical data on extended confiscation do not, however, allow us
to draw a conclusion that certain evidentiary facilities, in particular a reversal of a
burden of proof, guarantee a success in asset recovery on their own.53 Much also
seems to depend on the effective freezing of assets,54 which is - to a significant extent
- the result of cooperation between competent authorities and their experience in this
area.55 Enforcement effectiveness is clearly not to be reached without the cooperative
one – and no effectiveness is to be reached without a respect for fundamental rights:
if evidentiary simplification resulted in an increased confiscation of assets that we are
not sure whether they actually come from criminal activity, it would not be possible
to consider it as an effective fight against organised, acquisitive or any other crime.
That would simply be a dangerous weapon, which might randomly affect innocent
persons, while the criminals could still find their way to circumvent legal solutions
unfavourable for them.56 Therefore legal presumption of illicit origin of a defendant’s
48In accordance with Article 44(8) of the Constitution of Romania, legally acquired assets shall not be
confiscated and legality of acquirement shall be presumed.(https://www.presidency.ro/en/the-constitution-
of-romania); the principle that follows, according to the Romanian Constitutional Court, from the legal
certainty of the right to property. Safta 2012, 133-141 [39].
49Explanatory memorandum 1991, 23 [10]. Cf. the argument of legal safety in Swedish legislation: Thun-
berg Schunke 2017, 141 [46].
50Article 17 of Luxembourg Constitution (The penalty of confiscation of property cannot be established)
was abolished on 1.7.2023 by the reform of 17.1.2023 resulting from a doubt whether it complied with a
significant extension of asset confiscation as a result of implementation of Directive 2014/42/EU. Quaisser
2023, 7-10 [37].
51Although there was an initiative to eliminate from the Romanian Constitution the presumption of lawful
acquirement of property, it was rejected by Romanian Constitutional Court as unconstitutional (because
pursuant to Article 152(2) of the Romanian Constitution, [n]o revision shall be possible if it leads to the
suppression of any of the citizens’ fundamental rights and freedoms, or their safeguards). Safta 2012, 128,
134 [39].
52Cf. the amendment of Article 55 of the Polish Constitution in 2006 (which concerned the prohibition
of extradition of Polish citizens) in order to give effect to Council Framework Decision 2002/584 on the
European Arrest Warrant, as a result of the Polish Constitutional Court’s statement that the constitutionally
forbidden extradition of Polish citizen and the surrender of a prosecuted person on the basis of an EAW is
in essence the same. Biernat & Kawczy´
nska 2019, 751-752 [3].
53Cf. the statistical data from Germany with no reversal of a burden of proof (Kilchling 2023, 32-34 [20])
and from Poland, where such solution exists (Polish Ministry of Justice, 2022 [36]).
54Kilchling 2023, 15-16 [20].
55NIK 2019, 29-46 [30]; Impact assessment, 2012, 58-71 [18].
56Nelen 2004, 526 [32].

Improving asset confiscation: in the quest for effective and just solutions
assets and reversed burden of proof require an additional basis rather than a simple
charge for a predicate offence.
An example of a reasonable premise for reversal of a burden of proof was elabo-
rated in the case law of the Italian Supreme Court, which indicated that the burden of
proving the illicit origin of property rests primarily on the prosecution, while the per-
son concerned has the burden ... to counter the evidentiary situation against him.57
Although evidentiary proceedings in what regards defendant’s property do not refer
to their criminal liability but to the origin of their assets (for restorative purpose),
the latter issue still forms part of criminal matters. Presumption of innocence may
not be applicable, but the suspicion as to the illicit origin of property must still be
justified to a sufficient extent to include this issue in criminal proceedings. Until then
the right to privacy should protect an individual from interference in their personal
sphere. Therefore, in extended confiscation cases the Italian Supreme Court imposes
an obligation on a prosecutor to demonstrate, by specific evidence, that the value of
each asset in question is disproportionate to the defendant’s lawful income at the mo-
ment of its acquisition. Then a defendant is burdened with the proof of legal origin
of only those assets, the disproportionate value of which has already been established
and only with regard to the moment of their acquisition, which does not vary greatly
from the rules of dialectics in criminal proceedings, according to which the defence
refutes the prosecutor’s allegations.58 Such approach enables avoiding a fishing expe-
dition into a defendant’s property, making a defendant provide a significant amount
of far-reaching information regarding individual property components and their ori-
gin, under the risk of forfeiture if a court finds that the legal origin of those assets
has not been sufficiently demonstrated. The defendant may have particular knowl-
edge about the origin of their assets and be able to provide explanations and evidence
on this matter.59 However, the expectation that they explain the origin of all their
wealth at any time not only burdens them excessively within their assigned role in
evidentiary proceedings (which is to strive to counter specific evidence submitted by
a prosecutor), but it would also be destructive to their right to privacy, constituting
a disproportionate and intolerable interference, impairing the very substance of the
rights guaranteed by the Charter of Fundamental Rights of the European Union (the
EU Charter).60
The proportionality principle appears in the EU Charter in its retrospective and
prospective form. The first one relates to the severity of penalties, which must not
be disproportionate to the criminal offence (Article 49.3), whereas the second one
formulates a general requirement that [s]ubject to the principle of proportionality,
limitations may be made only if they are necessary and genuinely meet objectives of
general interest recognised by the Union or the need to protect the rights and free-
doms of others (Article 52.1 sent. 2).61 Distribution of a burden of proof between a
57Maugeri 2022, 9-10 [24].
58Maugeri 2022, 9-10 [24].
59Ashworth 2006, 266-268 [2].
60CJEU judgment of 12.3.2014, Al Assad (T-202/12), §113.
61Boucht 2021, 250-251 [7].

E. Hryniewicz-Lach
prosecutor and a defendant in case of a non-repressive sanction of extended confis-
cation falls within the latter context. Its proper assessment in reference to the rights
to property and privacy is, however, first possible when it is clear what is covered
by this sanction. This should be explainable in accordance with the principle of legal
specificity, which - in case of harmonisation of criminal sanctions - can be derived
from the requirement of establishing in a directive the minimum rules concerning
their definition (Article 83.1 and 2 TFEU). If a restorative sanction is to cover il-
licit property, it is necessary to indicate first which of the defendant’s assets can be
qualified as eligible in this regard. Such assessment requires verifiable information
determined by the law enforcement agencies, not generalising presumptions without
a rational connection between committing one crime and benefiting for a longer time
from other unspecified criminal activity. First then, the affected person can effectively
benefit from their right to defence in criminal proceedings.
The above-mentioned conclusions can be derived from a requirement to respect
fundamental rights which exists in every legal system of the EU Member States.
However, as it has been observed, even the main safeguards, which impose necessary
constraints on invasive legal solutions, may not be applied in a court practice if they
are not reflected in provisions regulating specific legal instruments.62 Therefore it
seems reasonable to postulate that in order to guarantee a right to defence in an effec-
tive way (as an element of a fair trial) the structure of extended confiscation solution
applied in national legal orders of Member States should include a requirement that a
prosecutor first demonstrates, e.g., by circumstantial evidence, the unlawful source of
a defendant’s specific assets before a defendant refutes this (preliminarily justified)
presumption by demonstrating a lawful source of those assets.63 Example of such so-
lution can be found in the Romanian Penal Code, which does not allow for extended
confiscation until the value of goods acquired by a convicted person ... clearly ex-
ceeds the revenues obtained lawfully by the convict and the court is convinced that
the relevant goods originate from criminal activities such as those provided in para-
graph delimiting predicate offences.64 This shows that extended confiscation does
not require an initial reversal of the burden of proof to a defendant in order to cre-
ate a functional solution in this regard. The lowered standard of proof (“the court is
satisfied”) can lead to equal results.
3.2 Harmonisation or interpretation?
Nevertheless, the structure of extended confiscation does not need to be harmonised
at EU level. The existing wording of Article 5.1 of Directive 2014/42 and Article
14.1 and 2 of Directive 2024/126 seems to be enough. Thus the court should decide
on extended confiscation, when it is satisfied that the property is derived from crim-
inal conduct and comes to such conclusion on the basis of all the circumstances of
the case, including the specific facts and available evidence such as that the value
62Milone 2017, 170 [27].
63Maugeri 2022, 10, 18 [24]. Cf. ECtHR judgment of 5.7.2001, Arcuri (54024/99), p. 6.
64Article 1121(2) of the Romanian Penal Code, cited after the translation of the Venice Commission,
20.9.2018: https://www.venice.coe.int/webforms/documents/ Cf. also: Stan 2019, 652-656 [43].

Improving asset confiscation: in the quest for effective and just solutions
of the property is disproportionate to the lawful income of the convicted person.The
cited provision clearly requires a court’s discretion, whereas national solutions some-
times significantly limit it by providing for a statutory presumption of illicit origin
of (all) the defendant’s assets, binding until rebutted by a defendant, no matter what
results from other evidence gathered. Such restriction of judicial discretion should be
enough to conclude that a Member State has not implemented the Directive properly,
unless it can be demonstrated that national courts understand the relevant provision,
in accordance with the mentioned directives, as leaving them enough discretion to
decide about the factual basis and the scope of extended confiscation.
A (Polish)65 provision according to which conviction for one of the acquisitive
crimes listed in a statute creates a presumption that the assets which a convict has
acquired within a specific period (including time before committing this crime or
before the initiation of criminal proceedings concerning it) constitute a benefit de-
rived from (unspecified) criminal conduct is an example of the mentioned solution.
The presumption is rebutted when a convict or another affected person proves (in the
same proceeding) the legal origin of assets.66 Compliance of such solution with EU
provisions on extended confiscation is met when a national court keeps its discretion
while deciding in a case and requires from a prosecutor an initial demonstration of
a rational connection between predicate offence and the defendant benefiting from
other criminal activity. This can be based on additional circumstantial evidence on
this matter: value of a property disproportionate to the defendant’s lawful income,
defendant’s involvement in organised crime or criminal professionalisation of differ-
ent kind.67 Such approach is consistent with a requirement that domestic rules should
be sufficiently precise and foreseeable in order to provide legal protection against ar-
bitrariness,68 because even if a wording of a statute seems to limit court’s discretion,
a court is still entitled, even obliged, to interpret the law in the spirit of fundamental
rights and a court’s independence is one of its guarantees.69 Due to the fact that the
rights to property, privacy, defence, fair trial and a proportionality requirement are in-
cluded in the EU Charter, a fundamental right’s friendly interpretation is, at the same
time, the EU-conform one, which creates a basis for an indirect effect of the EU law.
The indirect effect of EU law is understood as the duty of national courts of Mem-
ber States to interpret national law consistently with the wording and purpose of EU
65Similar solutions exist(ed) in other countries: Pingen 2022, 7 [35] (referring to Article 131-21 of the
French Penal Code), also in the (currently) non-EU European ones: Boucht 2017, 146 [5] and Thunberg
Schunke 2017, 180-182 [46] (referring to Sect. 67 of the Norwegian Penal Code, though here an extended
confiscation order is discretionary), the ECtHR’s judgment of 9.2.1995, Welch (17440/90) §§ 12, 33 (re-
ferring to UK Drug Trafficking Offences Act 1986); Thunberg Schunke 2017, 57-58 [46] (referring to UK
Proceeds of Crime Act 2002; thus here a prosecutor must first indicate a relevant property).
66Legal provision on extended confiscation falling within this structure constitutes Article 45 § 2 of Polish
Penal Code. Hryniewicz-Lach 2022, 2 [17].
67Ashworth 2006, 268 [2]; Panzavolta 2017, 50 [34]; ECtHR’s judgment of 1.3.2007, Geerings
(30810/03), §§ 46-50 and of 26.9.2023, Yordanov and others (265/17, 26473/18), §§122-124 (with fur-
ther references).
68Simonato 2017, 374 [41].
69Cf. Forsaith et al. 2012, 217-218 [13], where the authors indicate (in reference to asset confiscation at
the EU level) that restricting judicial discretion would be inconsistent with the right to fair trial, posing
problems with conferral of powers, proportionality and independence of the judiciary enshrined in the
constitutions of all Member States, thus outweighing any benefit and politically impossible.

E. Hryniewicz-Lach
law.70 This concept was elaborated in particular in order to give effect to Directives
by their integration into legal orders of Member States, also when they have not been
implemented properly.71 Both confiscation Directives require the court’s discretion
in deciding in extended confiscation cases, which is favourable to the defendant and
contributes to a fair trial. Therefore if national legislature has exceeded acceptable
limits of facilitating evidentiary proceeding, a court should look behind the legisla-
tive device and focus on the substance of what has been done.72 In the analysed
(Polish) case a court should apply national provisions on extended confiscation in
accordance with requirements of the confiscation Directives and treat the assumption
as to the illicit origin of a convict’s property not as a presumption, but as an interpre-
tative guideline on how to evaluate all (correctly collected) evidence. Accordingly,
one of the Polish courts indicated that a premise for issuing an extended confisca-
tion judgment in Polish law (conviction for one of the listed predicate offences) is
of highly insufficient nature and, due to significant level of invasiveness, the Polish
construction of extended confiscation can be perceived as incompliant with the con-
stitutional standard unless the courts examine the proportionality of its application in
each specific case.73
In light of the above, it can be concluded that whatever structure of extended con-
fiscation provision has been adopted in a national legal system, it does not release
a national court from the obligation to assess the origin of a defendant’s assets in a
context of all reliably collected evidence and in a fundamental rights’ friendly (and
thus EU law conform) manner. The proportionality requirement with reference to the
right to property and privacy, and the principle of legal specificity should be under-
stood as limiting, in favour of a defendant, the need to prove legal origin only of those
property components that have been directly indicated by a prosecutor and for which
there is, in a concrete case, a justified initial suspicion that they derive from a crim-
inal activity. Such interpretation is consistent with extended confiscation provisions
included in the EU confiscation Directives, which require judicial discretion in de-
termining the origin of defendant’s assets. Therefore, a court, also in cases where in
accordance with national law on extended confiscation a burden of proof of legal ori-
gin of defendant’s assets is shifted to a defendant without additional premises, should
require a prosecutor to submit circumstantial evidence supporting their claim at the
initial stage of a court trial.
3.3 Expanding confiscation and fundamental rights guarantees
Defining standards of protection in confiscation cases seems even more important
and urgent in the context of new generations of confiscation regimes provided for
70ECJ’s judgment of 13.11.1990, Marleasing SA (C-106/89), §13. Although in its judgment of 10.4.1984,
Von Col s o n (C-14/83), the ECJ indicated that court’s discretion should be understood “under national
law”(§28), it sems to be clear that this means the court’s decision on the meaning of linguistic formulations
in national penal provisions within established national judicial methodology. Melander 2014, 287 [25];
Schütze 2018, 291-292 [40].
71Moriarty 2007, 98, 112-117 [29]; Appleton 2000, 67, 73-87 [1].
72Ashworth 2006, 253-254 [2]; cf. ECtHR’s judgment of 7.10.1988, Salabiaku (10519/83), § 28.
73Judgment of 13.9.2023 of the Court of Appeal in Wrocław (II AKa 38/23). Cf. also Korzeniak & Szur-
man 2019, 66-67, 70 [21].

Improving asset confiscation: in the quest for effective and just solutions
in the EU Directives. In accordance with confiscation Directives, if conviction of
a suspected or accused person is not possible due to their illness, absconding or
death or because the limitation period for the relevant criminal offence prescribed
by national law is under 15 years and has expired after the initiation of criminal
proceedings, the confiscation of instrumentalities, proceeds or property the value of
which corresponds to such instrumentalities or proceeds, should be possible without
a (prior) conviction.74 In order to prevent an excessive use of non-conviction based
confiscation (NCBC) in Member States, which could result in circumvention of le-
gal safeguards applicable in criminal proceedings also to non-repressive sanctions,
Directive 2024/1260 provided for certain restrictions. In accordance with them, the
NCBC should be limited to cases where in the absence of the circumstances blocking
conviction it would have been possible for the relevant criminal proceedings to lead
to a criminal conviction for an acquisitive offence and the national court is satisfied
that the assets in question are derived from or linked to such a criminal offence.75
However, if the NCBC cannot be applied, it should still be possible to rule confis-
cation of unexplained wealth identified in the context of an investigation in relation
to a criminal offence, linked to criminal conduct committed within the framework
of a criminal organisation and liable to give rise, directly or indirectly, to substantial
economic benefit.76
The confiscation solution, which is not a criminal sanction and therefore is not
included in the (criminal) confiscation Directives, but which can be applied in simi-
lar cases, is civil asset forfeiture (CAF). It is oriented against property and does not
require a criminal conviction, nor even an initiation of criminal proceedings.77 There-
fore, perceiving it as an alternative to criminal confiscation meets criticism due to the
concern that civil order, equal in effects to criminal sanction, may be used to cir-
cumvent basic safeguards guaranteed to individuals in criminal proceedings, which
is particularly important in cases where CAF is proved to be partly penal.78 This
justifies the need to apply in relation to CAF, if there is a sufficient link to criminal
offence, and even more by confiscation sanctions ordered in criminal matters, certain
safeguards of criminal proceedings.79
The charge for criminal offence exposes an individual to criminal liability and
therefore requires guarantees, which should protect them against wrongful conviction
(the presumption of innocence, the criminal law standard of proof beyond reasonable
doubt)80 or an unjust and thus functionally ineffective punishment (the principle of
guilt). Other procedural safeguards and substantive guarantees create a framework
of rights applicable in reference to non-punitive sanctions, simply due to their as-
signment to criminal law. Respect for these rights creates a basis for a choice of
74Article 4.2 of the Directive 2014/42 and its extension in Article 15.1 of the Directive 2024/1260.
75Article 15.2 of the Directive 2024/1260.
76Article 16.1 of the Directive 2024/1260.
77Boucht 2014, 224-225 [4].
78Ashworth 270-274 [2]; Boucht 2014, 226-227, 239-242 [4].
79Boucht 2014, 234-255 [4]. Cf. ECtHR judgment of 5.7.2001, Arcuri (54024/99).
80Boucht 2017, 186 [5].

E. Hryniewicz-Lach
instruments of a predominantly preventive or restorative nature, also without prior
conviction.81
As observed by the European Commission, the degree of procedural safeguards
afforded to the defendant plays a determinant role in assessing the proportionality of
the measure.82 Thus respective procedural safeguards have been expressly indicated
in both confiscation Directives. They include the right to fair trial83 and to effective
remedy (which, in case of extended confiscation also means the right to challenge the
circumstances of the case: specific facts and available evidence on the basis of which
the property concerned is considered to be derived from criminal conduct) and the
rights of defence (including the right of access to the file, to be heard on issues of
law and fact and, where relevant, to interpretation and translation, the right of access
to a lawyer).84 Although the ne bis in idem principle has not been included in the
confiscation Directives (and thus does not exclude confiscation after final conviction
in reference to assets, which have been disclosed at the executive phase or even later),
it has been listed in Regulation 2018/1805 as one of the reasons to refuse the recog-
nition and execution of freezing and confiscation order from another EU Member
State.85
Substantive guarantees, applicable to non-punitive criminal sanctions, refer to the
structure of those sanctions. In case of asset confiscation solutions they include in
particular the principle of specificity of legal provisions (confiscation refers to spe-
cific assets disclosed in criminal proceedings, which implies the right to defence by
an affected person), the principle of proportionality (in the distribution of a burden
of proof between prosecutor and defendant, which implies a moment from which
defendant’s silence acquires a probative value), the right to property and to privacy
(interrelated with the proportionality principle). These guarantees are secured by the
principle of judicial freedom, which enables correction of wrongly formulated provi-
sions through a fundamental right’s friendly interpretation.
The indicated framework of fundamental rights’ guarantees can, and should, be
further developed. It may include, e.g., the principle of non-retroactive application of
law (that should not be confused with the retrospective application of extended con-
fiscation), which, however, in some legal systems applies only to crimes and penalties
(or punitive measures),86 whereas in other prohibits putting a defendant in a worse
position than at the time of committing an offence in reference to all applicable sanc-
81Boucht 2019, 538-539 [6].
82Impact Assessment 2012, 37 [18].
83Falling within the civil limb of Article 6(1) ECHR. ECtHR’s judgment of 5.7.2001, Phillips (41087/98),
§§ 27-47 (and 52.3 of the EU Charter).
84Article 8 of the Directive 2014/42, Chapter V of the Directive 2024/1260.
85Articles 8.1(a) and 19(1)a of Regulation 2018/1805.
86Kilchling 2023, 29 [20] with reference to rulings of the German Federal Constitutional Court of
10.2.2021 (2 BvL 8/19) and of 7.4.2022 (2 BvR 2194/21). Art. 7 (1) ECHR, Art. 49 (1) ChFR EU, ECJ’s
judgment of 3.05.2005 in joined Cases C-387/02, C-391/02 and C-403/02, according to which the prin-
ciple of the retroactive application of the more lenient penalty forms part of the constitutional traditions
common to the Member States (§ 68).

Improving asset confiscation: in the quest for effective and just solutions
tions.87 In any case asset confiscation, being an intrusive criminal sanction, should be
applied with caution and confiscation without conviction should remain a subsidiary
measure, by which limitation of fundamental rights guarantees requires noticing and
careful consideration.
4 Conclusion: legal safeguards and non-punitive sanctions
Confiscation of assets is a legal solution, which due to its progressive extension and
inherent intrusiveness has acquired a specific position among non-punitive criminal
sanctions. Its expected results derive from various ways of perceiving effectiveness,
which include: the enforcement effectiveness measurable in terms of amount and
value of frozen and confiscated assets, empowered by the cooperative effectiveness
resulting from swift cooperation of different authorities and counterbalanced by the
functional effectiveness, oriented towards restorative aim, but also fulfilling preven-
tive and justice functions. Correct application of this solution requires defining the
scope of legal guarantees related to its specificity and procedural context in which it
is adjudicated.
Certain potential problems with correct application of law are visible in the struc-
ture of confiscation solutions, in particular when it includes a presumption of illicit
origin of defendant’s assets or a reversed burden of proof in this regard. Therefore
such solutions should be constructed with particular attention paid to the right to
property and privacy, in order not to impair their very substance as well as to the
proportionality principle and the principle of legal specificity, which influence the
way in which the right to defence and other aspects of the right to fair trial are being
interpreted in criminal proceedings. However, the main safeguard enabling correct
application of legislative solutions seems to remain the court’s discretion in applying
fundamental right’s friendly interpretation of relevant provisions, which – in the con-
text of EU confiscation directives – may trigger the indirect effect of EU law. In such
way the functional effectiveness contributes to the legal framework enabling to create
effective and just confiscation solutions.
Declarations
Competing Interests The author declares that she has no competing interests.
Open Access This article is licensed under a Creative Commons Attribution 4.0 International License,
which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as
you give appropriate credit to the original author(s) and the source, provide a link to the Creative Com-
mons licence, and indicate if changes were made. The images or other third party material in this article
are included in the article’s Creative Commons licence, unless indicated otherwise in a credit line to the
material. If material is not included in the article’s Creative Commons licence and your intended use is not
permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly
from the copyright holder. To view a copy of this licence, visit http://creativecommons.org/licenses/by/
4.0/.
87Article 9§3 of the Spanish Constitution: la irretroactividad de las disposiciones sancionadoras no fa-
vorables o restrictivas de derechos individuales (though official websites: https://boe.es/ or https://www.
senado.es/ translate it as: the nonretroactivity of punitive measures or punitive provisions); Stiebellehner
2022, 12 [44] with reference to Art. 61 of Austrian Penal Code; Hryniewicz-Lach 2022, 19 [17] with
reference to Art. 4§1 of Polish Penal Code.

E. Hryniewicz-Lach
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