Minister Shatter calls for the support of European colleagues in strengthening the European framework targeting the proceeds of crime
The Minister for Justice, Equality and Defence today, at the Justice and Home Affairs Council of the European Union, called on his European colleagues to support further measures strengthening the European framework targeting the proceeds of crime. The Minister sought further debate on non-conviction based models for the confiscation of proceeds of crime and, in this regard, specifically highlighted the model operated by the Criminal Assets Bureau in Ireland as a model for further consideration. The Minister also sought the support of his European Ministerial colleagues in calling for the Commission to bring forward a measure at the earliest possible date on the mutual recognition of freezing and confiscation orders.
The Minister said ‘Ireland welcomes the move by the European Union to strengthen the systems for freezing and confiscating assets across the Union. The publication of the Commission proposal, which is before the Council today, re-emphasises the strategic importance of confiscation measures in fighting serious and organised crime. Ireland is committed to ensuring that the European Union provides for the most robust framework possible in this area’.
The Minister is of the strong view that more can be done at European level in this regard. In advance of the meeting, the Minister wrote to his EU colleagues seeking their support in taking further steps at European level so as to provide for greater cooperation and a more effective European response to the proceeds of crime.
The Minister said ‘The European Union has long recognised the fact that financial gain is at the heart of organised crime activities. I am of the view that we should go further and be more ambitious in our efforts. I believe that the current proposal is not far reaching enough in its provisions and, in particular, with regard to non-conviction based measures. I also believe that the Commission should bring forward a separate instrument at an early date on the mutual recognition of freezing and confiscation orders through civil proceedings.’.
At the meeting, the Minister indicated that while he did appreciate the concerns that some Member States may have with the non-conviction based model for confiscation, he believed these concerns could be met. In developing the Irish model, Ireland has had to address certain constitutional concerns and fundamental rights issues that can arise in these processes. The Minister indicated that he is open to discussing these issues in more detail with colleagues in order to have more open and informed discussions on the issue.
The Minister also said ‘I believe it is important that Ireland shares its experience of the system for non-conviction based confiscation with European colleagues. I believe it is important that we explore all available options in the creation of a more effective confiscation regime and I will do all that I can to assist in this regard.’.
27 April 2012
Note to Editors
The Stockholm Programme 2009 calls on the Member States and the Commission to make the confiscation of criminal assets more efficient and to strengthen cooperation between Asset Recovery Offices.
In June 2010 the Justice and Home Affairs Council adopted Conclusions on confiscation and asset recovery which inter alia call on the Commission to consider strengthening the legal framework in order to achieve more effective regimes for third party confiscation and extended confiscation.
The Commission Communication ‘An Internal Security Strategy in Action’ (Nov 2010) states that the Commission will propose legislation to strengthen the EU legal framework on confiscation, in particular, to allow more third-party confiscation and extended confiscation and to facilitate mutual recognition of non-conviction based confiscation orders between Member States.
In March this year the Commission published the first legislative measure in this package. This proposal seeks to strengthen the European framework for the freezing/confiscation of assets through further common harmonised rules in the following areas -
- the confiscation of assets not directly linked to a specific crime, but which result from similar criminal activities by the convicted person (extended confiscation)
- rules on the confiscation of assets that are transferred to a third party
- limited non-conviction based confiscation
- temporary freezing measures which would subsequently be confirmed by a court
- a requirement to manage frozen assets so that they do not lose economic value
A detailed examination of the proposal is underway in consultation with the Office of the Attorney General and other statutory agencies. Ireland will also have to undertake the necessary examination as regards the question of Ireland exercising its option to participate in the adoption and application of the proposal.
Oireachtas approval under Article 29.4.7 of the Constitution is required for Ireland to participate in the proposed measure. Ireland's participation is subject to the exercise of an 'opt in' entitlement in accordance with Protocol No. 21 to the Treaty on the Functioning of the European Union on the Position of the UK and Ireland. Ireland must notify the President of the Council in writing, within 3 months after a Proposal has been presented to the Council pursuant to Title V, if it wishes to take part in the adoption and application of the proposed measure.
The Commission proposal was presented to the Justice and Home Affairs Council today. The measure is one of a number of expected Commission proposals to enhance the EU framework targeting the proceeds of crime, which are expected to include a further proposal to strengthen the mutual recognition of freezing and confiscation orders.
Ireland is one of a small number of the Member States who have adopted both conviction based and non-conviction based models for the confiscation of proceeds of crime. While the conviction based model is widespread across the Union, the non-conviction based model would be less known. The non-conviction based model in Ireland is the model deployed by the Criminal Assets Bureau.
The Criminal Assets Bureau is a multi-agency structure which includes members of An Garda Síochána (Irish police force), Revenue officers (officials from our tax and customs service) and Social Protection officers (officials from our social protection service engaged in the provisions of income supports, employment services etc.). A key feature of the Bureau is the multi-agency structure which allows for access to information across the agencies represented at the Bureau. In addition, all of the officers assigned to the Bureau, as Bureau officers, retain all the powers relevant to their own agencies in addition to specific powers provided to Bureau officers.
In accordance with the statutory objectives of the Criminal Assets Bureau there are a number of mechanisms available to the Bureau in targeting, where appropriate, the proceeds of crime. The remit of the Bureau includes confiscating, freezing or seizing of criminal assets; applying, where appropriate, the relevant powers of the Taxes Acts to the profits or gains derived from criminal conduct and suspected criminal conduct and, in certain circumstances, taking action under the Social Welfare Acts in relation to persons engaged in criminal conduct or suspected criminal conduct.
In the context of the current proposal for a Directive on the freezing and confiscation of proceeds of crime, it is the powers of the Bureau to deprive persons of assets that derive or are suspected to derive, directly or indirectly, from criminal conduct that will be of particular interest.
The UNODC research report ‘Estimating illicit financial flows resulting from drug trafficking and other transnational organized crimes’ (October 2011), estimates that the total amount of criminal proceeds generated in 2009, excluding those derived from tax evasion, may have been approximately $2.1 trillion, or 3.6 per cent of GDP in that year.