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FRIHUMSAM-Fri prosj.st. hum og sam

Extended confiscation as a criminal law phenomenon - increased functionality or an unjustified deviation from traditional principles?

Awarded: NOK 2.7 mill.

This project constitutes an analysis of the purpose of extended criminal confiscation and civil confiscation, which in this context are referred to as extended appropriation, as well as their legitimatization within the criminal justice system. Extended appropriation differs from regular confiscation in the sense that the causal connection between the trigger offence and the property in question is weaker. This means that also profits from prior criminal activity, for which the defendant has never been convicted, may also be targeted. When confiscation is pursued in these cases, questions as to how the confiscation regime ought to be constructed in order to reasonable balance efficiency and Rechtssicherheit arise as many of the traditional safeguards employed in the criminal process have been watered down. This is also the case concerning so-called civil asset confiscation (which at the moment is not implemented in any the Nordic countries, but exists in several jurisdictions both in Europe and worldwide), which is a measure wholly detached from the criminal procedure. This project, which is finalized as a monograph, has a comparative approach on English, Finnish, Irish, Norwegian and Swedish confiscation law. First, the confiscation regimes of the comparator states are described. After this, the purpose of confiscation as well as its legal nature within the criminal justice system is analysed. This is essential because it directly influences how the regime ought to be constructed. Against the background of the comparative report as well as the analysis of the legal nature and purpose of extended appropriation, a theoretical model for assessing the legitimacy of extended confiscation regimes is then constructed. This model, which may be used to assess the legitimacy of extended appropriation schemes,both de lege lata and de lege ferenda is based on three parameters: the target area of the regulation, procedural safeguards, and fairness. In the final chapter this model is applied on the confiscation regimes in Finland, Norway and Sweden. Thus far the results have been presented in three articles published in Norwegian and international legal (peer review) journals. The project will also result in a concluding and consolidating monograph entitled 'Limits of Asset Confiscation. On Legitimizing Extended Appropriation of Criminal Profits'. The manuscript is estimated to be completely finished during the spring of 2015. The project has also had a homepage under the homepage of the Faculty of Law, University of Bergen: http://www.uib.no/fg/straff/31129/extended-asset-recovery-criminal-law.

This project concerns confiscation, and particularly extended confiscation, as a criminal law sanction. Confiscation refers to the seizure by and transference to the state of property as a consequence crime. The normal rules on confiscation adhere to the basic standards of the criminal procedure, particularly the presumption of innocence and the rules on the threshold of evidence (beyond reasonable doubt). However, in some situations individuals convicted of certain crimes possess property to an extent th at does not reflect their lawful income. Even if it is clear that the means originate from criminal activity, a confiscation claim might be rejected if the requirements are not fulfilled. This has been considered a problem. Therefore all of the Nordic cou ntries have implemented a set of particular rules on extended confiscation to be applied in relation to some more serious crimes (dealings in narcotics, smuggling and organized crime intentionally committed to achieve economic profit). These rules modify to the disadvantage of the accused the traditional standards applied, either by reversing the burden of proof or lowering the threshold of evidence that applies. The tendency to alter the basic safeguards of the criminal procedure to the disadvantage of t he accused is, however, far from unproblematic. High procedural standards are necessary in the criminal procedure due to the inherent character of criminal law to unilaterally afflict pain on the individual. Yet, the rules on extended confiscation stand i n conflict with these. This research project will analyze the fundamental problems surrounding the legislation on confiscation and particularly extended confiscation in a comparative perspective on Finland, Norway and Sweden. The ambition is to evaluate how the existing legislation fits together with the basic principles of criminal and criminal procedural law. Of particular interest is the European Convention on Human Rights and the ambitions of the EU.

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FRIHUMSAM-Fri prosj.st. hum og sam