Extended confiscation: a gateway to modern criminal law or a legislative failure?

• In Event: WG Organized Crime and Criminal Networks Panel 6. Organized crime: criminal justice & policing

Abstract

The paper presents an erosion of criminal law principles on an example of extended confiscation: a legal solution, which has been in recent years widespread in European (in particular EU) countries. This construction has been implemented in various forms applying legal presumption of illicit origin of defendant’s assets, a reversal of a burden of proof of legal origin of those assets (even automatically with an indictment in criminal proceedings) or a burden of proof lowered beyond the classic criminal law standard: beyond reasonable doubt. This issues put into question the compliance of extended confiscation with traditional criminal law safeguards (like: the proportionality requirement, the protection against self-incrimination, the right to silence, the presumption of innocence) aimed at protection of fundamental rights (in particular the rights of defence, the right to property or to privacy). The Author tries to explain - with reference to the results of international research project on "Extended confiscation and its justification in light of fundamental rights and general principles of EU law" (funded by the National Science Centre, Poland, reference number: 2020/39/D/HS5/01114), the findings of which are to be found among others in: E. Hryniewicz-Lach (ed.) Extended Confiscation of Illicit Assets and the Criminal Law: National and EU Perspectives, Routledge 2025 - whether the international emphasis on the use of extended confiscation pictures certain evolution of criminal law or should rather be perceived as one of the dead ends in its development.

Author

• Elżbieta Hryniewicz-Lach, Adam-Mickiewicz-University in Poznan, Poland