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)
___________________
[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)

Comments

Post a Comment

Editorial

Editorial
George Kazoleas, Lawyer

Top Stories

Ombudsman inquiry on Commission President’s text messages is a wake-up call for EU

Image
The European Ombudsman inquiry into the Commission’s handling of a request for text messages between its President and the CEO of a pharmaceutical company is a wake-up call for all EU institutions about ensuring accountability in an era of instant messaging. One year after the initial request by a journalist, the Commission has still not clarified whether messages reported to concern major vaccine procurement deals exist and whether the public is entitled to see them. The Ombudsman had asked the Commission, in a finding of maladministration in January, to conduct a more thorough search for the text messages. The Commission’s recent response failed to say whether it had looked directly and correctly for the text messages and if not, why not. While the response recognised that work-related text messages can be EU documents, it reiterated that the Commission’s internal policy is, in effect, not to register text messages. The Ombudsman has closed  the inquiry  and upheld her find
Read more

The name Pablo Escobar may not be registered as an EU trade mark

Image
According to the Judgment of the General Court in Case T-255/23 (Escobar v EUIPO) the name Pablo Escobar may not be registered as an EU trade mark. The public would associate that name with drug trafficking and narco-terrorism.  On 30 September 2021, Escobar Inc., established in Puerto Rico (United States), filed an application with the European Union Intellectual Property Office (EUIPO) for registration of the word sign Pablo Escobar as an EU trade mark for a wide range of goods and services.  The Colombian national named Pablo Escobar, who was born on 1 December 1949 and died on 2 December 1993, is presumed to be a drug lord and a narco-terrorist who founded and was the sole leader of the Medellín cartel (Colombia).  EUIPO rejected the application for registration on the ground that the mark was contrary to public policy and to accepted principles of morality. It relied on the perception of the Spanish public, as it is the most familiar with Pablo Escobar due to the links between Spa
Read more

ECHR President: Covid-19 pandemic has raised a number of important human rights issues

Image
Increased polarisation and challenges to Europe’s fundamental principles, together with the global COVID-19 pandemic, are likely to create the most difficult period we have seen in many years, according to the President of the European Court of Human Rights (ECHR). Speaking at the court’s annual press conference in Strasbourg, ECHR President Robert Spano said that democracy, the independence of the judiciary and the rule of law are increasingly being called into question at both the European and global levels. He added that the on-going pandemic has already raised a number of important human rights issues, including the proportionality of measures taken by Council of Europe member states, the legal basis of those measures and the use of domestic procedures to sanction actions or inaction. President Spano underlined that the ECHR has been able to continue its work despite the pandemic, deciding on over 39,190 applications in 2020 and holding online public hearings for the first time.
Read more

Imposition of fines and order to comply following a leak of expats’ personal data file by Greek Data Protection Authority

Image
The Greek Supervisory Authority for Data Protection imposed on the Greek Ministry of the Interior,  an administrative fine totalling EUR 400,000 and on a Member of European Parliament an administrative fine totalling EUR 40,000 for infringements of GDPR. The Hellenic Data Protection Authority received a large number of complaints regarding unsolicited political communication via e-mail sent on 1/3/2024 and entitled "100 days before the European elections", by Member of European Parliament Anna-Michelle Asimakopoulou. Following this, the Authority investigated the case ex officio, exercising immediately its powers of investigation and auditing the bodies involved. Following a series of on-the-spot audits and the receipt of evidence and data in the context of the audit, it was found that a file containing personal data of all registered Greek expatriate voters for the June 2023 elections, for which the Hellenic Ministry of the Interior is the controller, and for which the leg
Read more

Fair trial: Minors subject to criminal proceedings must have the practical and effective opportunity to be assisted by a lawyer (ECJ)

Image
According to ECJ's Judgment in Case C-603/22 (M.S. and Others), minors subject to criminal proceedings must have the practical and effective opportunity to be assisted by a lawyer. Such assistance must be offered at the latest by the time they are first questioned by the police. Criminal proceedings against three minors were brought before a Polish court. They were charged with having broken into the buildings of a disused former holiday centre. During those proceedings, it was found that the suspects had been questioned by the police in the absence of a lawyer. Before they were first questioned, neither they nor their parents had been informed of their rights or the conduct of the proceedings. The court-appointed lawyers therefore requested that previous statements made by the suspects be removed from the file as evidence.  The national court, questioning the effectiveness of the procedural guarantees in place for minors during the pretrial phase, made a reference to the Court of
Read more

Gigantic fine for unfair practices imposed on Booking.com by the Competition Authority of Hungary

Image
One of the highest fines for violation of unfair competition law has been imposed (28/4/2020) on online hotel booking platform ‘’Booking.com’’ by the Hungarian Competition Authority. The amount of the fine (approximately EUR 6 million / HUF 2.5 billion) imposed by the Authority illustrates the seriousness of the Dutch company's violations. The Hungarian Competition Authority (GVH) imposed a fine of HUF 2.5 billion on the operator of the online booking portal booking.com, and at the same time banned the Dutch company from continuing its aggressive sales methods. According to the decision of the competition authority, Booking.com B.V. engaged in unfair commercial practices against consumers by, among other things, misleadingly advertising some of its accommodations with a free cancellation option and exerting undue psychological pressure on consumers to make early bookings. As a result of the Competition Authority’s competition supervision proceeding  initiated in 2018, the autho
Read more

Legal Officer's position in the International Labour Organization

Image
ILO - International Labour Organization, based in Geneva, Switzerland seeks to recruit a Legal Officer. The Off ice of the Legal Adviser/Office of Legal Services (JUR) provides a wide range of legal services to the International Labour Organization and its various organs (in particular the Office, the International Labour Conference and the Governing Body of the ILO).   The work is carried out by a small, dedicated team at ILO headquarters. The unit reports directly to the Director-General.  It is responsible for furthering and defending the legal interests of the Organization. The Development Cooperation position of Legal Officer will report to the Legal Adviser.  This position will provide the Office of the Legal Adviser with the necessary capacity to provide legal support for the increasing development cooperation demand from headquarters and field units of the ILO. The position will better enable JUR to respond in a sound and timely manner to the demands placed upon it. Educati
Read more