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MUTUAL RECOGNITION OF JUDICIAL DECISIONS AND CONFISCATION 15 YEARS AFTER TAMPERE

This article examines the sufficiency of the current legal framework for mutual recognition of judicial decisions and confiscation, focusing on the Irish approach to targeting proceeds of crime and experiences with mutual assistance. The positives and negatives of the current framework are discussed, along with potential solutions and challenges.

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MUTUAL RECOGNITION OF JUDICIAL DECISIONS AND CONFISCATION 15 YEARS AFTER TAMPERE

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  1. MUTUAL RECOGNITION OF JUDICIAL DECISIONS AND CONFISCATION 15 YEARS AFTER TAMPERE SYRACUSE 22-23 SEPTEMBER 2014

  2. Is the current legal framework sufficient? Dave Fennell Mutual Assistance and Extradition Division Department of Justice & Equality Ireland

  3. Question: Is the current legal framework sufficient? Answer: Probably not. A lot has been achieved but more can be done

  4. What can be done? • The Irish approach to targeting proceeds of crime • Our experience of mutual assistance • Where do we go from here?

  5. Targeting proceeds of crime in Ireland • Criminal Assets Bureau • Proceeds of Crime Act 1996

  6. Proceeds of Crime Act • Non-conviction • Independent of criminal proceedings • Targets property • Civil law procedures • Interim order exparte • After 21 days, a new application • Onus of proof shifts • After 7 years, the property is forfeit

  7. CAB objectives • Identify assets suspected to derive directly or indirectly from criminal activity • Take action to deprive or to deny persons of the assets • Pursue investigations arising from above objectives

  8. Criminal Assets Bureau (CAB) • Multi-agency • Police (37) • Revenue/Customs (12) • Department of Social Protection (DSP) (5) • Department of Justice (16) • Anonymity for Revenue/DSP/Justice officers • Own legal support • Specific criminal offences of obstructing/assaulting CAB officers

  9. CAB results (1996-2012) • €100m – proceeds of crime • €150m – taxes collected • €3m – social security savings

  10. Positives • Creates deterrent • Undermines Organised Crime Groups activities • Creates visibility on the ground • Engenders confidence in the system • Encourages public support

  11. Negatives • Assets migrate • Criminals become more sophisticated • Organised Crime still operational

  12. So that’s our domestic process. What’s happening with mutual assistance?

  13. Mutual assistance • In 2013, the Irish Central Authority dealt with 584 requests for assistance and transmitted 200 requests. • Of the 784 requests, how many involved freezing/confiscation?

  14. 5.

  15. Why only 5? • Ireland does not transmit requests. • But how do we explain the small number of requests received?

  16. So what needs to be done? • More legislation?

  17. More legislation? • Conventions • Directive 2014/42/UE • Council FDs • 2001/500/JHA • 2003/577/JHA • 2005/212/JHA • 2006/873/JHA • 2006/960/JHA • 2007/845/JHA • 2008/977/JHA

  18. What’s the problem with non conviction based approach? • Critics say that police should chase criminals, not money. Chase both. • Not compatible with some national/constitutional systems. • So, if we cannot expand non conviction based measures, what can we do?

  19. Can we expand mutual recognition of existing civil orders? • To what extent should executing MS be able to look behind order from the issuing MS? • Given that the issuing MS is bound by CFR/ECHR, is there a need to look behind order? • To what extend could other EU instruments (procedural rights) offer some comfort? • Could MR be restricted to very serious offences?

  20. Challenges to Irish legislation • Right to fair trial • Reversal on the onus of proof • Right against self incrimination • Restricts right of access to the courts • Breaches rights to private property

  21. The foundation of justice is good faith - Marcus Tullius Cicero

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