Local view for "http://purl.org/linkedpolitics/eu/plenary/2002-11-18-Speech-1-147"
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"en.20021118.8.1-147"2
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". – Madam President, I wish to begin by thanking the rapporteur, Mr Di Lello Finuoli, for his very comprehensive and helpful report on the two Danish initiatives on confiscation.
As for the second Danish initiative for a framework decision on the execution in the European Union of confiscation orders, this second initiative deals, as Mr Marinho has just said, with the mutual recognition and execution of confiscation orders in the European Union. It is closely connected with the initiative that has been presented on the freezing and confiscation of property, for which Mr Marinho was the rapporteur, and the Commission intends to maintain the overall coherence between the two initiatives.
Some of the issues raised by the second initiative are now under negotiation in the Council, with regard also to the framework decision concerning the mutual recognition of financial penalties. We are therefore pleased that the rapporteur shares the positive view of the Commission on this framework decision. Most of your amendments seek to ensure that decisions are recognised only when issued by judges. We agree that it is important to be clear about the status of the issuing authority. The initial text as you have mentioned confused judicial authorities, courts and judges. This needs to be ratified.
We support your view that it is not appropriate for orders issued by investigating magistrates and prosecutors to fall within the scope of these instruments.
The rapporteur also suggests that the issuing state should be prohibited from imposing a custodial sentence as an alternative to confiscation. Although we agree with the objective of this amendment, it seems to us that this issue might be better addressed in the first framework decision on the approximation of national rules on confiscation.
I would conclude by thanking the rapporteur and also the House for its patience during this late-night debate.
First, I shall address the framework decision on the confiscation of crime-related proceeds, instrumentalities and property.
As the rapporteur said, it is essential that all Member States adopt rules providing for confiscation in general. The added value of this initiative, however, is that it addresses extended powers to confiscate the property of a person convicted of a serious crime, especially when the convicted person was involved in organised crime.
The problems that this initiative raises, as the rapporteur has said, are mainly concerned with the idea of extended powers of confiscation which consist essentially of extending confiscation measures to property which is not linked to the crime for which the person has been convicted, permitting confiscation of property belonging to a convicted person if the person cannot prove that he obtained the property through legitimate means, and permitting confiscation of property belonging to the spouse of the convicted person.
In my view, it should be possible to break the link between the offence for which the person has been convicted and the property to be confiscated, especially if that property is itself of illegal origin. However, the scope of application should be limited to serious offences linked to organised crime.
In addition, it is not the relationship between the convicted person and the third party which is important, but the fact that illegally obtained property was transferred to a third person.
So, like the rapporteur, I agree with the general approach adopted by the Danish Presidency. I also support most of the amendments by the rapporteur, in particular the amendment which introduced the notion of proportionality, so that confiscation does not result in a loss of property disproportionate to the offence committed; and the amendment which limits the scope of application of extended powers of confiscation to organised crime.
I have some doubts about the amendment the rapporteur has just mentioned, which demands that Member States avoid a reversal of the burden of proof in their legislation. I sincerely do not see the need to include such a provision in this specific instrument on confiscation as this could be interpreted as conflicting with the principle of subsidiarity.
The Danish initiative envisages a certain flexibility concerning the burden of proof. In this area, as Mr Di Lello Finuoli mentioned, we have to find the correct balance between combating organised crime on the one hand and on the other respecting the fundamental rights of the accused. It is not necessary, therefore, to reverse the burden of proof. However, we should consider the fact that the person convicted in connection with organised crime who cannot justify his lifestyle should face the prospect of confiscation of property unless this person demonstrates that he obtained the property by legitimate means."@en1
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