EU law does not preclude Member States from providing for civil proceedings for confiscation which are unrelated to a finding of a criminal offence (ECJ)

The European Court of Justice in its Judgment in Case C-234/18[1] ruled that EU law does not preclude Member States from providing for civil proceedings for confiscation which are unrelated to a finding of a criminal offence. Such proceedings are not covered by the Framework Decision on the confiscation of property.

BP, the Chair of the supervisory board of a Bulgarian bank was subject to criminal proceedings for having incited others, from December 2011 to 19 June 2014, to misappropriate funds belonging to that bank in the sum of approximately €105 million. The criminal proceedings are pending and have not yet given rise to a final judgment. Independently of those criminal proceedings, the Bulgarian Commission for the combatting of corruption and for the confiscation of assets found that BP and members of his family had acquired assets of a considerable value whose origin could not be established.

That commission therefore brought civil proceedings before the Sofiyski gradski sad (Sofia City Court, Bulgaria) with a view to confiscating illegally obtained assets. That court asks the Court of Justice, in essence, whether EU law precludes legislation of a Member State which provides that a court may order the confiscation of illegally obtained assets without those court proceedings being subject to a finding of criminal offence, or the conviction of the persons accused of committing such an offence.

By this judgment, the Court holds that the Framework Decision on the confiscation of property[2] aims at obliging Member States to establish common minimum rules for the confiscation of crime-related instrumentalities and proceeds, in order to facilitate the mutual recognition of judicial confiscation decisions adopted in criminal proceedings. It follows that that framework decision does not therefore govern the confiscation of instrumentalities and proceeds ordered in the context of or following proceedings that do not concern the finding of one or more criminal offences.

The Court observes that the confiscation proceedings pending before the Sofiyski gradski sad are civil in nature and that those proceedings coexist, in national law, with the confiscation regime under criminal law. Those proceedings concern assets alleged to have been illegally obtained, and they are conducted independently of any criminal proceedings brought against the person accused of committing offences and of any conviction of that person.

In those circumstances, the Court found that the decision that the Sofiyski gradski sad is called upon to adopt in the main proceedings does not fall within the context of proceedings relating to criminal offences and therefore does not fall within the scope of Framework Decision on the confiscation of property. The Court concludes that EU law does not preclude national legislation which provides that a court may order the confiscation of illegally obtained assets following proceedings which are not subject either to a finding of a criminal offence or, a fortiori, the conviction of the persons accused of committing such an offence. (curia.europa.eu/ photo by pixabay)

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[1] Komisia za protivodeystvie na koruptsiyata i za otnemane na nezakonno pridobitoto imushtestvo v BP and Others

[2] Council Framework Decision 2005/212/JHA of 24 February 2005 on Confiscation of Crime-Related Proceeds, Instrumentalities and Property (OJ 2005 L 68, p. 49)