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Introduction
have been taken in an in absentia case, where the defendant may not have received notice that there was a pending criminal case against him or her.43
1.2.6 Phase 3: Asset confiscation In criminal cases, once a decision to convict a defendant is entered, courts may issue relevant orders for confiscation,44 permanently transferring ownership of seized assets to the State.45 Confiscation is defined as “the permanent deprivation of property by order of a court or other competent authority”.46 Confiscation is one of the most effective tools in the fight against organised crime, as well as high-level corruption. Nevertheless, confiscation is not, and should not be, limited to the criminal justice sphere.
States which have more success in capturing the assets of those involved in criminal activities are those that also allow for non-conviction-based forfeiture;47 this includes processes for civil confiscation and administrative confiscation (such as proceedings by tax authorities to seize assets equivalent to the value of unpaid taxes). In many jurisdictions, such proceedings do not require a parallel criminal proceeding and, contrary to some criticisms, more often than not do not reverse any burden of proof. Additional non-penal proceedings to confiscate assets may include those in which State authorities can demonstrate that the assets held by an individual (public official or private citizen) far exceed his or her stated wealth – e.g., through annual public declarations of public officials, or annual tax statements of private citizens.48
Bulgaria and Italy – Some European Examples In Bulgaria, property can be confiscated in civil proceedings, and there are provisions which allow for the seizure of unexplained wealth. Given that the standard of proof required in civil proceedings, in many jurisdictions, is lower than in criminal cases, where the State demonstrates that it is more probable than not that the assets are linked to some form of criminality, and where any titleholder cannot rebut this, orders for confiscation can be more easily obtained.49 Through the anti-mafia provisions, the Italian legal system allows for “preventive” confiscation, particularly for individuals who are “habitually” involved in criminal activities.50 Ukraine’s First Civil Confiscation Case51 In 2019, Ukraine implemented Law № 263-IX on Amendments to Certain Legislative Acts of Ukraine Concerning Confiscation of Illegal Assets, introducing civil confiscation as a mechanism for asset recovery in the country. The goal of civil confiscation is to reduce the lengthy process of confiscation from a period of several years to a period of months, while still guaranteeing due process. Civil confiscation increases public trust in the efficiency of the justice system, and can facilitate the funding of high priority development needs.
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