Extended confiscation of criminal assets: limits and pitfalls of minimum harmonisation in the EU

Abstract

Confiscation laws are the mainstay of policies aimed at depriving criminals of their gain. One of the most debated aspects concerns the extension of the confiscation’s scope beyond the direct proceeds of a specific crime for which a person had been convicted. The European scenario on “extended” confiscation, however, is characterised by an apparent disharmony that endangers co-operation between national authorities. In 2014, the EU adopted a Directive with the goal to introduce a common model of extended confiscation to be transposed in all Member States. This article explores whether the new provisions on extended confiscation are adequate to achieve this objective, and highlights the pitfalls in the implementation of such provisions, particularly as regards the respect for fundamental rights. For this purpose, the Directive will be analysed in light of both the case law of the European Court of Human Rights and of the concept of minimum harmonisation, revealing inherent limitations.