Pregledni rad
Legal Framework of the Extended Confi scation of Assets in the Criminal Law of the United Kingdom and the Federal Republic of Germany
Darko Datzer
; Fakulteta za kriminalistiku, kriminologiju i sigurnosne studije Sveučilišta u Sarajevu, Sarajevo, Bosna i Hercegovina
Eldan Mujanović
; Fakulteta za kriminalistiku, kriminologiju i sigurnosne studije Sveučilišta u Sarajevu, Sarajevo, Bosna i Hercegovina
Irma Deljkić
; Fakulteta za kriminalistiku, kriminologiju i sigurnosne studije Sveučilišta u Sarajevu, Sarajevo, Bosna i Hercegovina
Sažetak
For many reasons, traditional mechanisms of criminal confiscation are of limited success, diminishing the efficacy of the entire criminal justice system and the legitimisation of the social order. Extended confiscation in criminal law, a special form of confiscation of assets, conceptually holds the high ground, since it relieves the state from proving concrete crimes and reverses the burden of proof, at least partially, onto the defendant. This paper examines the norms in two European jurisdictions which use different approaches in the regulation of extended confiscation in criminal law and which were also the first to introduce stipulations on extended confiscation. Three elements of extended confiscation of criminal assets are particularly worth reviewing in detail: a) for which crimes is this form of confiscation applicable; b) which circumstances typically indicate the criminal provenance of the property, including the question of the extent of the targeted property; and, c) what rights does the owner or holder of the property have in explaining the lawful origin of the property? It is reasonable to principally ascribe the greater risk of targeting property which indeed is lawfully obtained and therefore the greater unfairness of the confiscation regime to the framework utilising legal presumptions on the illicit origin of the property, ergo where there is full reversal of the burden of proof. Strong procedural safeguards and a focus on more valuable property, i.e. property that is disproportionate to the legitimate income of the perpetrator, considerably reduce such risks. Both the fully reversed and the balanced onus of proof approaches have conceptually undergone tests of fairness, proportionality and reasonableness before the highest judicial instances. It remains to be answered at the criminal policy level to what extent precisely this form of confiscation contributes to the effective fight against crime, particularly serious crime.
Ključne riječi
proceeds of crime; criminal offences; extended confiscation in criminal law; procedural safeguards, burden of proof
Hrčak ID:
253349
URI
Datum izdavanja:
14.12.2020.
Posjeta: 1.420 *