Clarification on the project on innovative approaches to confiscation

Dear AIDP member,

Following some inquiries, the AIDP secretariat would like to clarify that the project on innovative approaches to confiscation for which you have received the email below, while fully supported by the AIDP, is carried out by the Siracusa International Institute and not by the AIDP itself. You are in any case cordially invited to respond to the request or to assign someone of your staff to make the appropriate research, given the importance of the subject matter.

Four questions on innovative approaches which ease the burden of proof in the prosecution of money laundering offences and the confiscation of criminal assets

Dear AIDP Members,

First of all, please receive our best wishes for a happy and successful 2023! Many thanks to those of you who have contributed to the research project on AML-CFT conducted by the Siracusa International Institute for Criminal Justice and Human Rights and the EU AML/CFT Global Facility. You have provided precious insights on your national laws and on the functioning of innovative mechanisms which ease the burden of proof. For those who have not yet had the chance to contribute, we would appreciate if you could please provide us with some leads on how to continue our research by answering the four questions below.

As you may know, we are investigating existing innovative approaches which ease the burden of proof in the prosecution of money laundering offences and the confiscation of criminal assets, which can be challenging, as you know. In money laundering prosecutions, these mechanisms may shift, lighten or circumvent the burden of proof of the material and/or intentional elements of the offence. In confiscation proceedings, these mechanisms affect the burden of proof of the illicit origin of the defendant’s assets. “Innovative” does not have to mean “recent”, as some of these mechanisms have been present for a long time in some jurisdictions but may not exist everywhere. We are also examining key international and national case law where the compatibility of these mechanisms with fundamental rights and constitutions has been challenged.

The “usual suspects”, mechanisms which are quite well-known and widespread, include variants of the illicit enrichment offence, but also forms of extended confiscation, non-conviction-based confiscation and unexplained wealth orders. As we are trying to broaden the type of mechanisms and the jurisdictions covered by the study, we would appreciate if you could help us identify the most effective, creative and/or controversial ones by answering the questions below.

Please feel free to provide examples, comments and suggestions.

In your national law, are there any innovative mechanisms which are considered particularly effective? Please briefly describe what made them successful.
Does your national law include variants of the “usual suspects” mentioned above? Please briefly describe them, including any aspects which, to your knowledge, may be unique to your country.
Does your national law include mechanisms which do not fit the above categories but achieve the same effect? Please briefly describe them.
Are you aware of any case law where one of these innovative mechanisms which shifted, lightened or circumvented the burden of proof was challenged on the grounds that it was not compatible with fundamental rights and/or national constitutions? In particular, it would be helpful if you could please share case law of higher courts from your country or case law of regional courts involving your country.

We would appreciate if you could please send your answer to these four questions to f.bellio@siracusainstitute.org by the end of January 2023. We would also appreciate if you could please circulate this message to any legal expert who you think could contribute to this study. In advance, thank you very much for your assistance in this.

Sincerely yours,

The Association Internationale de Droit Pénal (AIDP)