Over the past thirty years, confiscation has been used as a tool to combat transnational crime, stripping away the rewards from those who engage in such nefarious activities. Fundamentally, the approach is directed at reducing criminal capital that could fuel further criminal activity, removing the incentive to commit further crime and ensuring that “crime doesn’t pay”. Nonetheless, serious crime continues to generate significant benefits for those involved – as at 2016, illicit markets in Europe were believed to generate around 110 billion euros annually.
Traditionally, the focus has been on “post-conviction confiscation” – recovering the proceeds of crime, via court order, after the crime itself has been proved in a criminal court to the criminal standard. The origins of such an approach may be traced to the 1988 Vienna Convention which provided for confiscation of the proceeds of crime in the context of drug-related offending only. Some 17 years earlier, in 1971, US President Richard Nixon had declared a “war on drugs”; the US was the fastest-grow- ing market for controlled substances at that time, and an increase in demand for cannabis, cocaine and heroin for recreational use led to large-scale international drug trafficking throughout the 1970s and 1980. Following international concern at the growth of the international drug trade, the Vienna Convention highlighted the “links between illicit traffic and other related organized criminal activities which undermine the legitimate economies” and so determined “to deprive persons engaged in illicit traffic of the proceeds of their criminal activities and thereby eliminate their main incentive for so doing” as well as to “eliminate the root causes of the problem … including….the enormous profits derived from illicit traffic.” Notably, in a relaxation of procedural safeguards judged to be proportionate to the scale of the problem, states were encouraged to “consider ensuring the onus of proof be reversed regarding the lawful origin of alleged proceeds”.
Over time, confiscation steadily broadened beyond drug offences. In 1990, the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime went on to define confiscation as a penalty or measure ordered “following proceedings in relation to a criminal offence or criminal offences resulting in the final deprivation of property.”
Advancing to 2000, the Palermo Convention8 required States to adopt confiscation measures, and specifically targeted the offense of participation in an organized criminal group, laundering the proceeds of crime, corruption, obstruction of justice and “other serious crime”. The Palermo Convention, like the 1988 Vienna Convention, mooted shifting the burden of proof, stating that States might “consider the possibility of requiring that an offender demonstrate the lawful origin of alleged proceeds of crime or other property liable to confiscation.” The prospect of a reversed burden was further referenced in the 2003 United Nations Convention Against Corruption10 (2003 UNCAC) and the 2005 Council of Europe Convention on Laundering, Search Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism.
The 2003 UNCAC also specifically raised the concept of “taking such measures as may be necessary to allow confiscation of…property without a criminal conviction in cases in which the offender cannot be prosecuted by reason of death, flight or absence or in other appropriate cases” , expressly raising non-conviction based confiscation (NCBC) or asset recovery on the international stage. The concept of NCB recovery had already begun to gather momentum at a national level: for example, Antigua and Barbuda introduced their Money Laundering (Prevention) Act in 1996, in 2000 the United States Congress enacted the Civil Asset Forfeiture Reform Act, and in 2002 Australia, Colombia and the United Kingdom all introduced NCBC legislation.